INTERNATIONALCOURTOF JUSTICE
CASE CONCERNING
THE LANDAND MARITIME BOUNDARY
BETWEEN CAMEROONAND NIGERIA
(CAMEROON v. NIGERIA)
COUNTER-MEMORIAL
OF
THE FEDERALREPUBLIC OF NIGERIA
VOLUME 1
BAKASSI
(CHAPTERS1-11)
MAY 1999 TABLEOFCONTENTS
VOLUME 1
BAKASSI
Page No.
Tableof Contents i-xxv
Indexto Illustrations xxvii-xxviii
Schemeof the Counter-Memorial
xxix-xxx
1. ProceduralHisîoryof the Case
2. TheRelationshipof NigeriaandCameroon
A. Introduction
B. The Experienceof Colonialism
C. The General Characterof Relationsweenthe Two States
D. General Characterof Nigeria's Foreign Relations
E. The Developmentof Nigeria-CamerwnRelations inthe1990s
(i) Nigeria'salleged"civil occupationof Kontcha"
(ii) The incidento1981
F. Conclusion (ii)
PART 1
3. Description of theBakassiPeninsul is,Geography and
Ethnography
A. Locationand Appearance
B. PhysicalGeography
(i) Geology and PhysicaCl haracteristics
(ii) Climateand Vegetation
C. A HistoricalDescriptionofthe Area
D. Human Geographyof Bakassi
(i) Populationand settlements
(ii) Agriculture
(iii)ishing
E. The Namingof SettlementsonBakassi
Table1: List of presentday settlements onBakassi
Table2: List of seitlements withtranslationsand
foundationdetails
Table3: GenealogyofpresentdayEfikclansand
Foundersof BakassiSettlements(i)
Table4 Genealogyofpresentday Efikclansand
Foundersof BakassiSettlements
4. The HistoricalBackgroun prior to 1884
A. Introduction
B. The Periodup to 1807
C. The IndigenousPeoplesofthe Coastlineof Old Calabar
D. The Emergenceof the EfikPolity
E. The GeographicalExtentof EfikRule andTrade
F. EuropeanInfluence inthe NineteenthCentury G. Colonial Activities onthe Guinea Coast
5. The Historic Tüle of the CityStatesof Old Calabar toThe Bakassi
Peninsuia
A. Introduction
B. The PoliticalIndependenceof the CityStatesof Old Calabar
The CityStates on AuthoritatiwMaps
(i)
(ii) Other Expert OpinionEvidence
(iii) The Evidenceof Travellers
C. The Recognitionof the Independenceof the CityStatesof Old
Calabar in BritishTreatyPractice
D. Recognition intheForm of the Appointmentof Consuls
E. The BakassiPeninsula as a Dependencyof Old Calabar
F. Conclusion
6. The Protectorates
A. IntroductorySummaryof Chapters 6 -9
B. Establishmentof the Ge- Pmtectoratein 1884
C. Establishmentof the BritishProtectorate in 1884
(i) General
(ii) Internationalpersonalityofpre-1884 OldCalabarand
its componentCity States
(iii) The Treatiesof 23-24 July and 10September1884
betweenGreat Britainand Old Calabarand its
componentCity States
(iv) The effectof the 1884Agreementof Protection:
establishmentof a Protectorate
(a) The notionof a "protectorate"or "pmtected
state"as at that time, andis now,wellknown
in internationlaw (b) The distinctionbetween theacquisitionof
swereigntyand the establishmentof a
Protectoratwas wellknownto the British
Government at the time
(v) The substantive contentof the 1884Protectorate 108
(vi) The lawof the UnitedKingdom as to the statusof 117
British Protectorates
(vii) Nigerian constitutional arrangemesuringthe 123
Protectorate
(viii) Conclusions asto ProtectorateStatus 125
Negotiationsconcerningthe BritishandGerman
Pmteetorates,1884-1913
A. Introduction 129
B. The Anglo-Ge- Exchangeof Notesof 29 April -7 May 130
1885
C. The Anglo-German Exchangeof Notes,27 July12 August 1886 134
D. The Anglo-German Agreemenr tespecting Zanzibar,Heligoland 136
and the Spheresof Influenceof the twoCountriesin Africa,
Berlin,1July 1890
E. The Anglo-GermanAgreementrespecting theRio del Rey, 138
Berlin, 14April 1893
F. The Anglo-Ge- AgreementrespectingBoundariesin Africa, 140
Berlin, 15November1893
TheAnglo-Gennan Treaty of 11 Mar&1913and 143
DemamationAgreementof 12 April 1913
A. The Treatyof 11March 1913 .. 145
. .
(i) Backgroundto the Treaty 145
(il) ïhe tem of the Treaty 154
(iii) Germany'sknowledgeof Great Britain'slegalposition 157
(iv) The principlnemodatquodnonhnbet 158 (v) Consequencesof ineffectiveness 162
(vi) Severabilityof the "Bakassiprovisions"of t1913 171
Treaty
B. The Anglo-GermanDemarcationAgreementof 12 April 191316 172
July 1914
A. Non-implementationof the 1913 Treatyby Germany onthe
ground
B. The Effectsof the VersaillesTreatyo1919
C. The realitiesof administrativedwelopmentin Bakassi between
1913 and 1960 showthat, as before, Bakassicontinued
throughoutthe periodto beadministeredas part of Nigeria
D. The patternof administration
(i) Local GovenunentAdministration
(ii) Legaljurisdiction
(iii) Taxes
(iv) Schools
(v) Census
(vi) Tieswith the traditional authoritiesof Old Calabar
continuedunintempted
E. The survivalof the originaltitle to Bakassi
10. Nigeria'soriginaltitleto the BakassiPeuinsulawas 209
confirnied afterindependence by historiai consolidation,
acquiescenceandrecognition
A. Introduction 211
(i) TheLegalSituationat theTimeof Independence 211
(ii) The Basesof the Nigerian Title 211 (iii) The Definitionof the BakassiPeninsula
(iv) The Entitlementof Nigeriais notaffectecibythe
MarouaDeclaration
(v) The Relwanceof the CriticalDate
B. Historical Consolidatioof Title: TheLegalConcept
C. The SpecificComponentsof the HistoricConsolidationof.
Nigerian Title
(i) The OriginalTitleof the City Statesof Old Calabar
(ii) The Attitudeand Affiliationsof the hpulation of
Bakassi
(iii) The Toponyq of Bakassi
(iv) The Administrationof Bakassi aspan of Nigeriain the
Period 1913 to 1960
(v) The Exerciseof Authority byTraditionalRulers
(vi) Jurisdictionof Customary Law Courts
The Settlementof Nationalsof the ClaimantState
(vii)
(viii)
Actsof Administration by Nigeria after Independenci en
1960
(a) The EvidentialSources
@) The Maintenanceof PublicOrder and the
Investigationof Crime
(c) Taxation
(d) The Exerciseof EcclesiasticalJurisdiction
(e) Delimitationof ElectoralWards
(f) Participationin ParliarnentaryElections
(g) CensusTaking
(h) PublicWorksand DwelopmentAdministration
The Exerciseof MilitaryJurisdiction
(i)
(i) PublicEducation
(k) Provision for Public Health (vii)
O) The Grantingofûii ExplorationPermitsand
ProductionAgreements
(m) TheRiodel Rey Pbn
(n) TheCollectionof CustomsDuties
(O) Useof NigerianPassportby Residentsofthe
BakassiPeninsula
@) Immigration
(q) Local Administration
IntemalNigerianStaterivairyoverBakassi
(r)
Conclusion:the elementsofHistoricalConsolidation
(ix)
D. TheAcquiescence ofCameroonin faceofthe PeacefulExercise
of Swereigntyy Nigeria
(i) TheLegalRelevanceof Acquiescence
(ii) nie LegalPbsition
(iii) The Allegationsconcemingegectiv iithe Cameroon
Memonal
(iv) TheEvidenceof Acquiescence byCameroonin fac ef
the ExerciseofSovereigntbyNigeria
(a)Phase 1:1960to 1972
@) Phase2: 1973to the Dateofthe Cameroonian
Appücmion(29March1994)
E. RecognitionandAdmissionsbyCameroonin faceofthe
PeacefulExerciseof SovereigbyyNigeria
(i) TheLegal RelevancoefRecognition
(ii) nie Evidenceof RecognitionbyCameroonin faceof
the ExerciseofSwereigntybyNigeria
F. Conclusion
Thepment boundarybetweenNigeriaandCameroonin the 285
Bakasi ama
A. Introduction 287
(i) Theheadofthe Riodel Rey 288 (viii)
(ii) Theboundaryfcomthethalwegof theAkpaYafe to the 289
headof theRiodel Rey
(iii) Theboundaryfromthe head of theRiodel Reyto the 290
mouthof the Rio delRey
(iv) Theboundarybeyondthemouthof theRio del Rey 293 VOLUMEII
LAKE CHAD. AND THE LAND AND MARITIMEBOUNDARY
12. The HistoricaiBackground 297
A. Introduction 299
B. A ShortHistory of the BornuEmpire
C. Anival of the ColonialMers
D. Conclusion
Table1 Kingsof Bornu 308
Table2 The Kuburi (Al Kanemi)dynasty 309
13. The Physicaiand HumanGeographyof the LakeChad 311
Basin
A. Gwlogy, DrainageCharacteristicsandWaterLevelsup to 1940
B. The Current Situatiinthe LakeChadArea
(i) Area, Resourcesand Population
(ii) The Desertificationof the Lake
(iii) Hydrologyof the Rivers
(iv) RainfallPattern
(v) "Small"Lake Chad
(vi) HumanPressuresin the LakeChad Basin
(vii) Dernographichessure
(viii) ProductiveActivities
(a) IrrigatedAgriculture @) Fishing
(c) Stock-rearing
(ix) Industrialandmining activities
(x) Conclusion
14. Darak andthe Nigeria LakeChadVillages 333
15. Lake Chad -Boundary Instruments Priorto Independence 341
A. Beforethe First WorldWar 343
(i) Agreement betweenGreat Britainand Germany 343
respectingBoundariesin Africa, signed atBerli15
Nwember 1893
(ii) Conventionbetween theFrenchRepublicand Germany, 344
for the Delimitationof the Coloniesof French Congo
and of Cameroonand of Frenchand German Spheresof
InRuencein the Regionof LakeChad, signedat Berlin,
15 March 1894
(iii) ConventionbetweenGreat Britainand Francefor the , 345
Delimitationof their respective Possessto the West
of the Niger, andof their RespectivePossessionsand
Spheresof InRuenceto the East of that River, signedat
F'aris14 June 1898
(iv) Anglo-GermanAgreementsigned 12December 1902 346
(v) Anglo-Germanhotocol signedat Ullgo,LakeChad, 24 347
Febmary 1904
(vi) Anglo-French Convention signedat London,8 April 348
1904
(vii) AgreementbetweenGemy and Great Britain 349
respectingthe BoundarybetweenBritishand German
Territoriesfrom Yolato LakeChad (Nigeriaand
Cameroons),signedat London. 19 March 1906 (viii) Convention betweenthe UnitedKingdomand France
respectingthe Delimitationof the Frontierbetweenthe
Britishand French Possessionsto the East of the Niger,
signedat London, 29 May 1906
(ix) Conventionto specifythe BoundarybetweenFrench
Congoand Cameroon,signed inBerlin, 18April 1908
Exchangeof Notes betweenGermanyand Great Britain
(x)
confirmingProtocolsdefining Boundariesbetween
Britishand Ge- Territoriein Africa- 22 Februaryl
5 March 1909
(xi) Protocoldated 19 Febniary 1910betweenthe United
Kingdomand France respectingthe Delimitationof the
Frontier betweenthe Britishand French Possessions
East of the Niger (appmed byExchangeof Notes, 17
May11July 1911)
B. Sincethe FirstWorldWar
(i) The PicotIStracheyLines, February 1916andthe
CreweICambonExchangeof Notes,March 1916
The MilnerISimonDeclaration, July1919
(ii)
(a) Negotiationsat Versailles
@) The Declaration
(c) The implementationof the Declaration
(d) The Leagueof NationsMandates
(e) Britishdealingswiththe Permanent Mandates
Commissionand France, 1922-1930
The ThomsonlMarchandDeclaration, 1929and the
(iii)
HendersonldeFleuriauExchangeof Notes, 1931
(iv) Post-1931 Demarcation Efforts
(a) Dealings withthe Permanent Mandates
Commission1931-1939
@) Dealings withthe UnitedNationsTmsteeship
Council, 1946-1961l (xii)
C. Conclusion
16. The Ascwtainmentof the Boundarw yithinLakeChad: the Absence
ofa Fina l elimitation
A. Introduction..
B. The Ambitof LakeChad for PresentPurposes
C. The GeneralCharacterof the hocess of Boundary
Determinationcalled for in LakeChad
D. The Treatiesof the ColonialPeriod
(i) The Anglo-FrenchAgreement signedon 29 May 1906
The Franco-GermanAgreement signedon 18 April
(ii)
1908
(iii) The Anglo-FrenchAgreementsigned on19February
1910
(iv) The Thomson-MarchandDeclarationof 1929
(v) The Anglo-FrenchAgreementconcluded byan
Exchangeof Noteson 9 January 1931
E. The Independenceof Cameroonand Nigeria in 1960
F. The Arrangementsfor BoundaryDemarcation:
The Roleof the LakeChad BasinCommission
(i) The Positionafter the lndependenceof Cameroonand
Nigeria
(ii) The Originsof the RenewedEffortat Delimitationof
the Boundarieson LakeChad
(iii) The SpecificationsPreparedfor the TechnicalOperation
(iv) The DemarcationExercise,1988 to1990
(v) The Sequelto the DemarcationExercise
(vi) Nigeriahad a discretionin the Matter of Acceptanceof
the Decisionof thHeads of Statein 1994
G. Conclusion17. TheBaseo sfNigeria'sTitletoDarak and the otherLake Chad
Villages:HistoriealConsolidationand Acquiescence
A. Introduction: The Basesof the NigerianTitle
B. Historical Consolidationof Title:The LegalConcept
C. The Specific Componentsof the HistoricalConsolidationof
Nigerian Title
The Attitude and Affiliatisf the Ropulationof Darak
(i)
and the other LakeChad Villages
(ii) HistoricalAssociations
(iii) The Exerciseof Authorityby TraditionalRulers
(iv) Actsof Administrationby the FederalGwenment of
Nigeriaand by BornoState
(a) The EvidentialSources
(b) The Maintenanceof PublicOrder
(c) Taxation
HouseAssessment
Census Taking
DevelopmentAdministration
The Appointmentof VillageHeadmen
Public Education
Provisionof Public Health
EnvironmentalSanitation
Generalmers of Administration
Licensing andRegulationof Fishing
The Regulationof Trading
(n) Registrationof Electors
(v) Conclusion: theElementsof HistoricalConsolidation
D. The Acquiescenceof Cameroonin faceof the PeacefulExercise
of Swereigntyby Nigeria(i) TheLegalRelmce of Acquiescence
(ii) TheLegalPosition
Appendix: ContemporaneousAccounts
- Introduction
- Murdas
- Mukdala
-
Chika'a
- Naga'a
Doron Li
- GoreaChangi
-
KaniKie
- Darak
Dororoya
- RaminDorinna
-
Fagse
Nimeri
- DarakGana
- Naira
-
GarinWanzam
Kafuram
- Kamunna
Sagir
-
KirtaWlgo
- GoreaGutun
- DoronMallam
- Jribrillam
-
SabonTumbu
- Kolom PARTIII
THE BOUNDARYBETWEW LAKE CHAD AND BAKASSl
18. Introductionand Background 475
A. Introduction
B. Background
(i) Localchiefsand nilers
(ii) Generalevolutionof the boundary
(iii) BritainandGennany
(iv) WorldWar1: Unite dingdomand France
(v) The Treatyof Versailles:Theite Kingdomand
France: Mandates
(vi) The Unite Kingdomand France: Trusteeship
(vii) Independence
C. The Boundary Today
(i) Introduction
(ii) The Thomson-MarchandDeclaration
(ii) The Nigeria(FîotectorateandCamerwns)Orderin
Council 1946
(iv) TheAnglo-Ge- DemarcationAgreementof 12April 495
191316July 1914
(v) The Anglo-GermanTreatyof 11March 1913 499
(vi) Nigeriaacceptsin principlethe delimitationofthe land0
boundaryin accordancewith the instrumentsreferredto
(a) Absenceof geographical coordinates 502
(b) Map scales 503
(c) Boundary'incidents' 505 (xvi)
19. The Course of the Boundary
A. Introduction
B. Cameroon'sownmaps showa boundarywhichis in places
demonstrablyinconsistent withthe boundary as delirnited in the
principallyrelevantinstruments
(i) Firstexample:Kamalearea
(ii) Secondexample:Budunga
(iii) Third example:MountKombon
(iv) Fourihexample:Bissaula-Tosso
C. The ternis of the principallyrelevantinstrumentsdo not take
accountof long-establishedpracticesor local agreements which
have variedthe landboundary as delimitedin thoseinstmments,
or locally agreedinterpretationsofunclearprovisionsof the
inst~mena
D. In manyplacesthe principallyrelevantinstrumentsdescribethe
landboundaryin terniswhichgiverise to difficulty whenthe
atternpt is madeto applythemon the ground
(i) First example:the Ebeji River
(ii) Secondexample:Jirnbare
(iii) Third example:Nambem - Banglang
(iv) Fourthexample:Yi Crossing
E. The principal boundarysectors
(i) Sector 1: the mouthof the EbejiRiverto Hill 1660
(a) TheMilner-SimonDeclaration 1919
(b) Anglo-Ge- Agreements
(c) Thomson-MarchandDeclaration1929-1931
Sector 2:Hill 1660 to BoundaryPillar 64
(ii)
(iii) Sector3: BP 64 to BP 114
(iv) Sector4: BP 114to Norihof Bakassi
F. Conclusions (xvii)
PART IV
20. Cameroon's Maritime Claim-Linein the Guifof Guinea
A. PreliminaryIssues
B. The Court'sJudgmenton PreliminaryObjections7 and 8
C. The Positionof the MaritimeClaimsand Legislationof the
Parties
D. The stateof negotiationsbetweenthe variousStatesconcerned
E. Nigeria'snegotiations withEquatorialGuinea
F. Relevanteconomic andother interestsin the Gulf of Guinea
(i) Explorationand exploitationof continental shelf
resources
(ii) Fisheries
(iii) Navigation
21. The Applicable Law as Relevant tothe Pment Case
A. Introduction
B. Delimitationof the TerritorialSea
(i) Internationalawaccords to each CoastalState,subject
to theprincipleof equidistance, a territorialsea of up to
12 milesfrom the baseline
C. Delimitationof the ContinentalShelf
(ii) Internationalawrequiresthe parties,in the first
instance,to attemptto reach agreement onthe
continentalshelf
(iii) It is not the functionof the Court to apportion the
continental shelf referenceto generalconsiderations
of equity (xviii)
(iv) international lawdoes not givespecialrightsin the field
of continental shelfelimitationto "geographically
disadwtaged States"
(v) In drawingcontinental shelf boundaries, international
law does not refashionthe geographicalsituationof the
parties
(vi) In delimiting continental shelf boundaries, international
lawplacesspecialweighton the practiceof the parties
and onexistingarrangementsfor the exploitationof the
continental shelf
Proportionalityof coastlinesis relevantin assessingthe
(vii)
equitablecharacterof a delimitationbut cannotbe used
as the basis for "sharing"shelfresources
D. Delimitationof the Exclusive Economic Zone
(viii)
Internationallawdoes not ips oure attributean EEZ to
a State
(ix) Delimitationof the EEZ is a legallydistinctoperation
from delimitationof the continental shelf
(x) Delimitationof the EEZ requires aprior attemptat
agreement between the parties
22.
The Issues for the Court at this Stage of the Proceedings
A. Introduction
B. Priority of detemination of the landboundary
C. The special positionof EquatorialGuinea andS.50Tom6e
Principe
D. Conclusions
23. Maritime Delimitation: The Rebuttalof Cameroon's Claim-Line
A. Introduction
B. The Basisof Cameroon'sClaim-Line:AffirmativeActionat
Nigeria'sExpense
C. The Basisof Cameroon'sClaim-Line: a "maritimeexclusion
line" excluding Nigeria (xix)
D. In any event, Cameroon's claim-linacksanybasis in 611
internationallaw
(i) Encroachmenton naturalprolongation
of Nigeria'scoastalfront
(ii) Completedisregardof considerationsof contiguity 612
(iv) Complete failureto take into accountthe practices 613
of Statesconcernedin the Gulfof Guinea:1-
Nigeriaand Cameroonthemselves
(iv) Completefailureto takeintoaccountthe practices 614
of Sîatesconcernedin the Gulfof Guinea:ii-
Nigeriaand EquatorialGuinea
(v) Disproportionalityof coastalfronts 614
(vi) Attemptsto redistribute maritimewnes in the Gulfof 615
Guineaon the basisof "globalequity"
E. The issueof enclaving 616
F. GeneralConclusion 619 VOLUME III
STATE RESWNSIBILITY AND COUNTERCLAIMS
CONCLUSIONS AND SUBMISSIONS
PARTV
24. Cameroon's Megations concerning State Responsibity
General
Cameroon'sApplicationof 29 Mach 1994
Cameroon'sAdditionalApplicarionof 6 June 1994
Cameroon'sMernorialof 16March 1995
Cameroon'sallegationsof Nigeria'sinternational responsibility:
general
Nigeria's allegtreaty violations
Nigeria'salleged non-cornplianwith theprincipleof uti
possidetisjuris
Nigeria'sallegedresponsibilityarisingout of alleged incidents
(i) Adequacyof facts
(ii) Burden andstandardof proof
(iii) Reasomblemistakeand honestbelief
(iv) Selfdefence
(v) Topographicaldifficulties
(vi) Contextof incidents
(vii) Unduedelay -extinctiveprescription
(viii) Attribution
(ix) Inconsistencyof Cameroon'sallegations
AllegedIncidentsJ. AllegedIncidentsin the Bakassiarea referreto in Cameroon's
Applicationsand Memonal
1. Incidentof 16May 1981
2. Incidentof 21 December 1993(Abanaand "Diamond
Island")
3. Infiltrationson and after 21 December 1993
4. Incidentof 28 December 1993
5. Incidents on3, 4 and 5 January 1994
6. Incidentsof February1994
7.
Cameroon'sallegationsconcerningthe occupation by
Nigeriaof parts of the BakassiPeninsulasince 1993or
1994
8. Incidentreferredto in an AFP dispatchof 1July 1970
9. Incidentof 16June 1984
10. Incidentsreferredto in a messagedated2 December
1985
11. Incidentof 27June 1986
12. Incidentreferredto in a notedated27 August1991
13. Incident referredto in a notedated 16April 1981
14. Incidentsreferredto in a notedated 15March 1984
15. Incidentreferredto in a Message dated29 September
1990
16. Incidentreferredto in Messagedated 10December
1990
17. Incidentreferredto in Messagedated 13December
1990
18. Incidentof 27 April 1991
19. Incidentsreferredto in a notedated29 October 1992
20. Incidentreferreto in a notedated 18December 1992
21. Incidents referrto in a Messagedated23June 1993
22. Incidentof 21January 1981
23. Incidentof 6 March 1990 (xxii)
24. Incidentof April 1990
25. incident of 27 November 1980
26. AdditionalIncidents referredto in Paragraphs6.126 and 710
6.136 of theMemorial
K. Allegedincidentsin the Lake Chad Area referredto in
Cameroon's Applicationsand Memorial
27. General and UnspecificAllegedIncidentsinthe Lake
Chad Area
28. Incident of 13May 1989
L. Land BoundaryIncidentsreferredto in Cameroon's
Applicationsand Memorial
29. Unspecified AllegedIncidents in Cameroon'Additional
Applicazion
30. The Occupationof Tipsan by Nigeria
31. Incident of 29 May 1989"at Kolofata"
32. Incident of 6 July 1992
33. Incident ai "Mbelogo" on26 January 1994
34. Incidentof 26 Septernber1994at "Mbelogo"
35. "Area of Nigerian Occupation"in Faro-et-Deoand
Menchum
M. AllegedIncidents referredto iAnnexOC 1 of Cameroon's
Obsedons on Nigeria'PreliminaryObjections
36. Darak -26.06.1987
37. Hile Alif- 1987
39. Kofia- 19.05.1989
40. Blangoua -13.05.1989
42. Wa~a Park -09.04.1980
43. Djibrili, Zanga & Assigass-05.12.1980 &
07.12.1980 (xxiii)
Karanch i 07.02.1990
Bourrha-March1980
Dourbeye- 06.05.1985
Doumo -29.01.1982
Mbillass- 16.10.1962
OuroDalam -16.05.1981
Ouro-Garg a16.11.1984
Wouro DjaoumOumarou - 27.04.1981
Beka -08.09.1981
Laro- 18.01.1979
Kontcha(Zoneof Lakemsan), Bondjokour a
28.03.1993, 17.03.19&7 04.05.1988
Dorofi,Km, Hore Tm Foulbe-Multiple
Occurrences
Atta-07.07.1985
SamFaamNtim -January1988
Mandur-Yang -06.07.1992
BituiLus- 03.04.1995
Ntong -26.02.1979& 02.03.1979
Abonshie- 07.05.1993
Lebo -12.07.1984
Mbelego -26.09.1994
Akwaya -23.03.1993
Nsanakang -MultipleOccurrences
Matene -27.10.1986
Dadi & Badje-Multiple Occurrences
Archibong-27.11.1980
Akwa- 19.02.1994
Ine-ikoi21.01.1981
Kombo A Bediio- 19.11.1985 73. Kombo A Janea -18.02.1994
74. Jabane -02.04.1990
75. Jabane-16.05.1991
76. Jabane-28.12.1993
77. Diarnond -28.12.1993
78. Idabato- 01.09.1984
79. Idabato- 30.12.1993
80. Idabato- 17-18.02.1994
81. Rio delRey - 16.05.1981& 05.07.1985
82. Rio delRey - 16.06.1984
N. Conclusions
PART VI
25. Partieul ofrhe NigerianCounterelaims
A. Introduction
B. The BakassiPeninsula
C. LakeChad
D. The Central Sectorof the Land Boundary
(i) Tipsan
(ii) Maduguva
(iii) Tosso/Mberogo
(iv) OkwaIMatene
E. Othercases (=v)
PARTVI1
CONCLUSiONSAND SUBMISSIONS
26. Conclusionand Submissions (xxvii)
INDEXOFILLUSTRATIONS
Volume 1
Figure4.1 (para. 4.11) NigerianEthnicGroupsSurvey1972
VolumeII
Figure 12.1 (para. 12.4) The Sudanduringthe First MillenniumA.D.
Figure 12.2 (para. 12.11) The SonghaiEmpire, TheHausaStatesand Bomu-Kanemin 1591
Photograph (para. 12.14) Kuka Treemarkingthe centreofKukawa
The FulaniEmpireand Bomuin the 19thCentury
Figure 12.3 (para. 12.17)
Figure 13.1 (para. 13.7) Adaptedsketchmap of the South-westernshore of LakeChad which
wasproducedto illustrateMigoed'spaper
Figure 13.2 (para. 13.12) Lake Chad geographicaland "conventional"basins
Figure 13.3 (para. 13.19) LakeChad and the Sahel Drought (photograph)
Figure 13.4 (para. 13.23) Chari-Logonewaterresourcesflowinginto LakeChad
Figure 13.5 (para. 13.24) Annualrainfallat N'Djamena
Figure 13.6 (para. 13.25) The Lake in1973
Figure 13.7 (para. 13.25) The Lake since 1977
Figure 13.8 (para. 13.27) Changefrom "nonnai" to "small"Lake Chad
Figure 13.9 (para. 13.27) Variationin lakewaterlwel
Figure 13.10 @ara. 13.38) Sketchmapshawingmral populationdensityin 1979
Figure 13.11 (para. 13.39) Sketchmapshowingmain urbancentresin 1979 (xxviii)
Figure 13.12 (para. 13.40) Populationgrowthin the newconventionalbasin
Figure 13.13 (para. 13.45) Transhumantroutestaken by cattlein the ConventionalBasinin a wet
year
Figure20.1 (para. 20.11) Cameroon Memorial, "La Délimitation Equitable"
Figure20.2 (para. 20.11) Cameroon Sketch-map superimposed on an accurate map of the
region
Figure20.3 (para. 20.11) Impact of Cameroon MaritimeClaim on Equatorial Guineaand Sao
Tomée Principe
Figure20.4 (para. 20.16) Map of existingNigerian andEquatorialGuineanOil Concessionsin
relationto Cameroon'sclaim-line
Figure20.5 (para. 20.17) Existing Nigerian Concessions: reasof Overlap
VolumeIII
Figure24.1 @ara.24.78) Calabarto Douala
Figure24.2 (para. 24.106) The Bakassi Rninsula (showingRio del Rey)
Figure24.3 (para. 24.113) The Bakassi Peninsula(showingIne Ikoi and Inua Mba)
Figure24.4 (para.24.128) The BakassiPeninsula(showingAbanaandWestAtabong)
Figure24.5 @ara.24.130) The BakassiRninsula (showing Oron, AbanaandWestAtabong)
Figure24.6 (para. 24.334) Extracthm page205 of Cameroon's Observutiom (xxix)
SCHEME OF THIS COUNTER-MEMORIAL
In this case, Cameroonhas raised a large numberof questions.The presentCourder-Memoriai ls
designedin such a wayas to deal in the most logicaland helpfulmanner with the variousissues in
the case,ncludingNigeria's counter-claims.
The schemeof the Counter-Mernoriails accordinglyas follm. The body of the Counter-Mernorial
is containedin three Volumes.as fo1lows:-
Volume1 (Balrassi) opens witha Tableof Contents,two introductoryChapters dealing with
theproceduralhistoryof the case and the general relationsbetweenCameroonand Nigeria.
These intmductoryChapters are then follawedbyPart 1of the Counter-Mernoria(lChapters
3-11).dealingwith issuesrelatingto the BakassiPeninsula.
Volume iï(Lake Chad, andthe Land andMaritime Boundary) opens, for convenience,
with a duplicateofthe Tableof Contents. This is follawedartII ofthe Counter-Mernorial
(Chapters12-17)dealing withDarakandthe Nigerianvillagesin LakeChad. PartIIIfollows
(Chapters18 and 19). dealing with the lengthyland boundarybetween thetwo States from
Lake Chad to Bakassi. VolumeII is completedby Part N of the Counter-Memonal,which
deds (in Chaptefi20-23)with Cameroon'smaritimeclaims.
Volume IiI (State Responsibility and Counterslaims, Condusions and Submissions)
iikkise opens, for conve~ence,with a duplicateof the Tableof Contents. Thisfollawed
by Part V of the Counter-Memorial(Chapter24). in whichNigeria addresses the issues of
State Responsibilityraised Cameroon, and by Pan VI (Chapter 25),containingNigeria's
counter-claims. The Volumeconcludes withPart ViI of the Counter-Mernorialc.ontaining
Nigeria'sConclusionsand Submissions.
In additionto thehre eolumesreferredto above,the Counter-Mernoriaclomprisestwo Volumesof
Annexes (Volumes N and V), entitled "Treatiesand other Instmments" arranged in chronological
order. A further six Volumesof Annexes(VolumesVI to XI), contain al1 the other documents
refend to by Nigeriain order of referencein the maintext. There is also an Annexof Photographs
(VolumeXII), an Annexcontaining, forease of reference,the Tableof Contentsand AnnexIndices
(VolumeXIII)and an Atlas in twovolumes.AllAnnexes arereferredto as "NC-M ..."follmedbythe relevanAtnnex number."MC"refersto
Cameroon's Memorial, "NPO"to Nigeria's Prelimimry Objectionsand "CO" to Cameroon's
Observations. CHAPïER1
PROCEDURAL HISTORYOFTHECASE1.1 On 29 March 1994, the Republic of Cameroon lodged with the Registry of the
Court an Application dated 28 March 1994 instituting proceedings against the
Federal Republicof Nigeria. The Applicationwassaidto concem a disputebearing
"essentiellement sur la question de la souverainetésur la presqu'île de Bakassi"'
and the "frontière maritime ...jusqu'à lal'imitedes zones maritimes que le droit
international placesous leur juridiction re~pective".~
1.2 Subsequently,Cameroondecidedto make a further Application, which it filedwith
the Court on 6 June 1994. At a meeting between the President and the
representativesof Nigeria andCameroonheld on 14June 1994His Excellencythe
Agent for Cameroon informed the President that the AddirionalApplicationwas
intended as an amendment tothe initial Application. Nigeria having made no
objection, the Court by an Order dated 16 June 1994directed that the Additional
Application be treated asan amendment to the initialApplication,and that it would
deai with the whole as one case. Cameroon was ordered to file itsMemorialby 31
March 1995.
1.3 In the AdditionalApplicationthe Court is asked not only toadjudge and declare
"que la souveraineté surla parcelle litigeuse dans la zone du lac Tchad est
camerounaise" ....)but aiso to "préciserdéfinitivement lafrontière entre elle etla
Républiquefédérad l u Nigériadu lac Tchad à la merw4(AdditionalApplicationof
6 June 1994,paragraph 17(f)).
1.4 In due course, Cameroonpleaded its case in itsMemorialdated 16March 1995.
'
"essentiallyon the questionof smereigntyover theBakassiPen-nApplicnrioof 29 March1994,
para.1.
"the maritiboundary...uptotheliit of the maritimnes which internationlaalwplacesundertheir
respectivejurisdicti-Applicatioof 29 March1994, para.20
"thatCamemonhassovereigntoverthe disputparcelintheareaof LakeChad"
"specifydefinitivelythefrontierbetweenher [Cameroona]ndtheFederalRepublicofNigeriafromLakeChad
tothesea"1.5 On 13 December 1995Nigeria filed with the Registry a document raising eight
Preliminary Objectionsto thejurisdiction of the Court and the admissibilityof the
Cameroonianclaims.
1.6 By a letter of 10 Febmary 1996 His Excellency the Agent for Cameroon
comrnunicated tothe Court a Requestfor theIndicationof ProvisionalMeasuresin
accordance with Article 41 of the Statute of the Court. By an Order dated 15
March 1996,the Court indicatedcertain Provisional Measures, applicableto both
parties, pendii a decision in these proceedings.
1.7 On 30 April 1996Cameroon presented a written statementof its Observationson
Nigeria'sPreliminaryObjections.
1.8 The oral hearings of Nigeria's Preliminary Objectionstook place from 2 to 11
March 1998.
1.9 Nigeria presentednew documentsunder cover of a letter dated 2 Febmary 1998,
and, as these were unopposed by Cameroon, they were admittedunder Article 56
of the Rules of Court. Cameroonintroducednewdocumentsunder coverof letters
dated 9 April 1997and 11Febmary 1998,which the Court decided to admitunder
the provisionsof the same Article.
1.10 By a Judgrnent dated 11 June 1998, the Court rejected seven of the eight
Preliminary Objectionsraisedby Nigeria anddeclared that the eighth Preliminary
Objection did not have an exclusivelypreliminary character. The Court further
foundthat it hadjurisdiction to adjudicateupon the disputeand that theApplication
of 28 March 1994as amended by the AdditionalApplicationof 6 June 1994was
admissible.
1.11 On 1 July 1998the Court fixed 31 March 1999as the tirne limit for the filing of
the Counter-Memoria ly Nigeria.1.12 On 28 October 1998, Nigeria filed an Application dated 21 October 1998,
requestingan interpretationof the Judgmentof 11 June 1998 on the Preliminary
Objections. This request concemed the part of that kdgment which dealt with
Nigeria'sSixthPreliminaryObjection,namelythat "Thereis no basis for a judicial
determinationthat Nigeria bears internationalresponsibilityfor alleged frontier
incursions".
1.13 On 23 February 1999 Nigeria applied for an extensionof the time limit for the
filingof the Counter-Memonal.The Court on3 March 1999extendedthe time to
31 May 1999.
1.14 On 25 March 1999, the Court gave judgment on Nigeria's Request for
Interpretation,eclaringittobe inadmissible. CHAFïER 2
THERELATIONSHIPOFNIGERIAANDCAMEROONA. Introduction
2.1 Nigeria and Cameroon areneighbouringStatesin WestAfrica. Their locationis
shownin Nigeria's Atlas, Map 1. Map 2 showsthe main cities, Abujabeiig the
Federal CapitalTemtory of Nigena and Lagos its main port and commercial
centre. Yaoundéis the capital of Cameroon, and Douala its main port and
commercialcentre. The irnmediateneighboursof both countries are also shown.
Map 3 shows the relief of the terrain through whichNigena and Cameroon's
commonboundary runs. Theland boundaryis some1,700kilometres in lengthand
runs throughremote andsometimesdifficultterrain fromLake Chadto the sea.
2.2 The populationof Nigeria iscurrentlyestimatedto be inthe regionof 120million.
Its land area is approximately924,000 square kilometres. The populationof
Cameroon is approximately 15 million and itsland area about 475,000 square
kilometres.
2.3 This Chapterbriefly describesthe States thaternergedin Nigeria andCameroon
from the colonial period. It then outlines the general nature and tone of the
bilateral relationship between thtwo States during the four decades since they
becameindependentin 1960.
B. TheExoerience of Colonialism
2.4 Nigeria'sexperienceof European colonialismin the 19thand 20th centuries was
alrnost exclusivelyof the British. Consequently the Nigerian Federatiow nhich
emerged in 1960 inherited from the colonial past, alongside its rich African
heritage, anumberof British traditions, theEnglishlanguageas a unifyingtongue
for the entire Federation, and a natural position as one of the most important
Africannationsin the Commonwealth.Nigeriawasalsoendowedat Independence
with democraticinstitutions whichwere essentially British-inspired.2.5 Cameroon'sexperiencesof Europeancolonialismwereparallel. The Cameroonian
experience of direct European rule began in the 1880s with the establishmentof
German rule. Both Nigeria and Kamerun were described as "protectorates",but
they were subjectto different European colonialpowers,each with its ownlawsand
traditions. German Kamerun was conquered by Britain, France and Belgium
between 1914 and 1916, in the course of the First World War, and with the
exception of what then became the British Cameroons continuedto develop in a
verydifferentwayhm Nigeria. Ultimatelythe Cameroonthat wouldemergefrom
the German protectorate and subsequent French mandate and trusteeship periods
was a very different Statehm Nigeria. Itspolitical institutionswere presidential
in style, modelledon France'sVth Republic,and itsgovemmentwaspredominantly
francophone.
2.6 At the tùne that the Republicof Cameroonbecame independenton 1 January 1960
it was far from clear whether any part of the British Cameroonterritories under
United Nations trusteeshipwouldform part of the newCameroonianState. Nigeria
itself was not to gain independence until 1 Octoberof the same year.
2.7 The Preamble to Cameroon's first Constitution, of February 1960, expressed the
new State's aspiration to reunite with Cameroonians inhabiting territories beyond
the national borders (most obviously in the British trusteeship territory in the
WesternCameroons), in the followingwords:
"[le peuple camerounais] ...proclame sa volontéde tout mettre en
oeuvre pour répondreaux aspirations des Camerounais habitantles
témtoires séparés de la mèrepatrie, afin de leur permettre de rentrer
dans la Communauté nationaleet de vivre fraternellement dans un
Cameroun uni" .5
"[theCamemonianpeople]..proclaimsiu willtodoeverythinordermrespondtotheaspiratiosf the
Cameroonianisnhabitingterrimseparatefrom themotherland. ordermpermitthemm RNrninthe
nationalCommunityandm live fraiemallyin a unitedCamemon".vranslationinmEnglishbytheFederal
Republicof Nigeria]2.8 In 1961, following a plebiscite under the auspices of the United Nations, the
SouthernCameroons, previouslyunder Britishtrusteeship,were united withthe new
Cameroon Republic. In the same year, the Northem Cameroons, which had
likewisebeen administeredby the British as aUnited Nations trust territory, opted,
in a similar plebiscite, to join newly independent Nigeria.
2.9 Cameroon was badly disappointedby this development, and brought some of its
gnevances to the Court in the Case concerningthe NorthernCameroons. In its
j~dgment,~the Court declined to intervene. President Ahidjoof Cameroon gave
expression towhat was evidently a very considerable sense of disappointmentby
declaring a national day of mourning, to be observed annually the~after.~
2.10 Nigeria had accededtoIndependence on 1 October 1960 and was admitted to the
United Nations on 7 October of that year. From the moment of Independence,
Nigeria adopteda policyof good neighbourlinessin itsextemal relations. Thefirst
Prime Minister of Nigeria, Sir Abubakar TafawaBalewa, gave expression to this
policywhen he said "Nigeriawouldneverimposeitselfupon any other country and
shall treat every African country, big or small, as our equal".' This has at al1
times been, and is now, Nigeria's consistentpolicy.
2.11 Both before andafter Nigeria accededto Independence,Bakassiwasconsidered part
of Nigeria andadministered as such. Cameroon showedlittle interest in it. For
that reason, neither State saw in Bakassi any significant impediment togood
relations.
Judgmcnotf 2 December196ICJ Repom1963. p.15
A.N.Njoye,Le Guncroundnnles r6lnriomintemarionales.1976,p. 18a
* SamEpelle(ed.)NigeriaSpeaks:CoUectedSpeechesof SirAbubnkarTqawaBalewa(London:Longmaus.
Green& Co.. 1968),p.67C TheGeneralCharacterof RelationsBetweentheTwoStates
2.12 Although the two newly independent States, Cameroonand Nigeria, were, for the
reasons stated above, very diierent in character, their relations were cordial from
the outset. Nigeria noteswith regret that in the course of the present proceedings
Cameroon has begun to claim that relationsal1along the common boundary have
been "poisoned" ever since the mid 1960s.' This assertion is completely
unfounded. The facts cited by Cameroon fail to support it.
2.13 In most parts of the world, most of the time, minor difierences are resolved
amicably between neighbouring States. This was true of the post-Independence
relationshipbetween Nigeria andCameroonon the rareoccasionswhen differences
arose. Cameroon'sattemptto portraythe relationshipin a different lightis a recent
and unwelcome development.It does an injustice to bothStates andis contradicted
by the facts.
2.14 The two States have maintained unintenupted diplomatic representation in each
other's capitals since Independence. There has also been extensiveCO-operation,
both bilaterally and in aegional context, in such fields as telecommunications,
cross-bordertravelrequirements,air services, police,judicial, economic, scientific
and technical matters.
2.15 Both during and after the Nigerian Civil War in the late 1960s, relationships
between the Cameroonian and Nigerian governments remainedcordial under the
governments of General Gowon and his successors. For their part, the two
Presidents of Cameroon in the 38 years since Independence, namely President
Ahidjo and President Biya, had no difficulty inmaintaining friendly relationswith
Nigeria, on a reciprocal basis which included frequent exchanges of State and
Ministerial visits, meetingsof bilateral commissionsand the full array of meetings
CameroonMernoria("MC"),paras1.02, 1.03. 1.07 and1.08 and communicationsthat would be expected betweenneighbouringand fratemal
African States.Cameroon's own Memonal, with its repeated referencesto
discussions, joint commissions, negotiations, agrsnd concessionsears
testimonyto the normalityof the bilateralrelationshipbetweenthe twoStates.
D. General Character of Niceria's Foreim Relations
2.16 Throughout the period since Independence Nigeria has followed the policy
expressedbySu AbubakarTafawaBalewa(above,paragraph2.10). Nigeria has
been a good neighbouroal1adjoiningStates, includingnot only Cameroonbut
Benin, Niger,Chad, and Equatorial Guinea. Nigeria has atal1 times been a
committed,active and responsible merfthe UnitedNations,the Organization
of AfricanUnity,the Economic CommuniofWestAfrican Statesandmanyother
bodies. The international commuhas recognizedthis. Nigeriahas takenpart
in numemusinternationalpeace-keepingand other assistanceoperations,the great
majorityunder the auspicesof the United Nations. Theyinclude thefollowing:
ECOMOG ECOWAS(EconomicCommunityof WestAfricanStates)
Ceasefire Monitoring Groin Liberia
MINURSO UnitedNations Mission forReferendumin Westem Sahara
MONUA UnitedNations Observer Missionin Angola
NATAG NigerianArmyTechnicalAssistanceGroup
ONUC UnitedNations Operationsin the Congo
UNAMIR United NationsAssistanceMissionin Rwanda
UNAVEM UnitedNationsAngolaVerificationMission
UNIFIL UnitedNationsInterimForce inLebanon
UNIIMOG UnitedNationsIranJIraqMonitoringGroup
UNiKOM United Nationsraq-KuwaitObservationMission
UNIPOM UnitedNationsIndo-EàkistanObserver Mission
UNMIBH UnitedNations Missionin Bosniaand Herzegovina UNMOP United Nations of Observersin Prevlaka
UNOSOM United Nations Operationin Somalia
UNPREDEP United Nations Preventive Deployment Force in Macedonia
UNPREDEV United Nations Preparation and Election Verification in
Macedonia
UNPROFOR United Nations ProtectionForce in Former Yugoslavia
UNTAES United Nations Transitional Administration in Eastern
Slavonia
UNTAG United Nations Transitional AssistanceCroup in Namibia
UNTSO United NationTruce Supervision Organisation
UNMm United Nations MissionoObservers in Tajikistan
E. The Deveio~ment ofNigeria-Cameroon Relations in the 1990s
2.17 The cordial relationshipbetween Nigeria and Cameroon continued until the early
1990s, when Cameroon decided to force the issue over Bakassi. The methods
Cameroonhas used since 1993to punue its claim havecertainly made the bilateral
relationship a more dificult one. There are, however, twokey points to be made
in this regard.Fit, apart from the incident of 1981 referred to below, the
deterioration of relationships 1993had no parallel in the earlier relationship
of the two States. Secondly,Nigeria has takencare to behavethroughoutthe entire
period since 1990with restraintdespite provocations.
2.18 Later in this Counter-MemonalNigeria will comment more fully on various
Cameroonian allegations. In the context of an analysis of bilateral relationssince
1960 it suffictonote that since Cameroon decidedto press its claim to Bakassi
in the early990s. the tone and credibility of Cameroon's assertions has for the
first time suffered a sustaineddeterioration. The point can be illbytwoted
examples. (i) Nigeria's aüeged "civiloccupation of Kontcha"
2.19 Cameroonclaimed thatNigeria hascanied out a "civil occupationof Kontcha" .Io
Thisclaimis completelyfalse. Nigeriamadeit cleartoCameroon,in a diplornatic
Note of 14 April 1994, that Nigeria has no clah toKontcha and has never
occupied the place(AnnexNC-M 61). ThatNote is exhibitedto Cameroon'sown
Memorial as Annex MC355. Cameroon's claim is further discredited in the
Appendices toCameroon'sown Observations." In these passagesCameroonput
forwarda markedlydifferentcontention,namelythatNigeriahas occupiedterritory
at Tipsan, near Kontcha. Tipsan is a very differentlocation. It happens tobe
demonstrablywithinNigeria,not inCameroon, aswillbe shown belowin Chapters
19and 24.
(ii) The incident of 1981
2.20 Nigeriarefersagainto this subjectat this point only becauseCameroonhas, since
lodgingits Applicationwith theCourt, repeatedly putthis allegationforward. Yet
the allegationwas neveradvancedbetween1981(thedateofthe incident)and 1994.
2.21 The essenceof the allegationlies in the clah that on 16May 1981a Nigerian
patrolopenedfireon a Cameroonianvesse1in watersoffthe BakassiPeninsulaand
then tried to exploit the situation to shift the blame ont0 Cameroon. This
cornpletely reverses thefacts. There was an unprovokedattack by Cameroonian
forces on a Nigerianpatrol (see Nigeria'sPreliminaryObjectionsand Chapter24
below). Even since 1994 Cameroon has continued toaccept that the incident
involvedno Camerooniandeathsor othercasualties,but, onthecontrary,thedeaths
'OCameroonianletterof 11April1994(AnnetotheAdditio~I Application)andMemorialpara.1.09. See
generally'Chaptr4. below.
Memorialparas..90 eseq.,ObscruationsVoII-Repenory,App.20 of fiveNigerians. Nor dws Cameroondenythat the Presidentof Cameroonmade
a fullapologyto Nigeriaand paidcompensation to the victirns'families. These
îàctsare clearly set oinparagraphs 34 to39 of Nigeria'sPreliminatyObjectons
and inthe ExhibitstheretomarkedNPO1, NP02 and NP03. A copyof the lener
from Cameroon and evidence of payment are to be found in NC-M62 and
NC-M 63. Cameroonsimplymats theseeventsas if they had neveroccurred.
F. Conclusion
2.22 Overallbilateral relationsbetweenthe twoStatesremainednot merelycorrect but
cordial,in a consistent patternand with rare intemptions, until the early 1990s.
Cameroon whollyfailsto makeout a case to the contrary, farlessto layblame in
this regardupon Nigeria. PART1
THEBAKASSIPENINSULADESCRIPTIOOF THEBAKASSIPENINSULA,
ITSGEOGRAPHY ANDETHNOGRAPHYA. LocationandAooearance
3.1 The BakassiPeninsula(hereafter "Bakassi"),12 is a networkof islandsand creeks
situatedbetweenlatitudes 4O50'and 4O25' North. It is boundedto the North by
the river knownas the Akpa Yafe.13Its westernliiit lies at approximately8O29'
longitude and its eastern limit approximately 8O43' East of Greenwich. To the
Westlies the estuaryof the Cross River, into whichflowsthe Akpa Yafe. Tothe
East of Bakassilies the Rio del Rey estuary.14The line of the boundarybetween
Nigeria and Cameroon fromthe head of the Riodel Rey to the pointat which it
joins theAkpaYafeis describedin Chapter 11belm. Tothe Southof Bakassilies
the South AtlanticOcean, known inthis region as the Gulfof Guinea, consisting
of the Bight of Benin andthe Bight of Bonny@mn in the past as theBight of
Biafra). TheBakassiPeninsulaitself is criss-crossedby a tracery of channelsand
creeksof varyingsizeand navigability.Transportaroundthe peninsulais by water.
3.2 The distancefrom the townof Archibongon the Akpa Yafeto the SouthCoastof
Bakassi is approximately 35 kilometres. At its widest point Bakassi is
approximately 28 kilometres across. The total area of the peninsula is
approximately700 squarekilometres.
3.3 Nigeria'sAtlas containsthe followingmapsand imagesofBakassiand itsenvirons:
l2 Bakassiis sometimesspelledBakasi,panicularly inolderdocuments.BackasoyandBokalsfound.
l3 Akpa in the EiikLanguagemeans 'river'. In this Counter-Memorialthereforethe River will generallybe
referretoas the 'AkpaYafe'. Variationsbelfound in the Treaties. onmaps and in comspondence.
They include:
Akpayafe.Akpa-Yofc,
Akwa Yof cmeaningGreatYafein Efik,
Akwoyafe,Akpabcfe or Akpajafe
AkwejafeandAkpakonunor RiverKonun. Boththese lastnamesaused in the Trcatyof March 11,1913
(whichalsoreferto-si asBukasi).
Where there arrcferences intexttothe river, it may be spelled asit appears in the documentunder
reference.
l4 The Rio del Rey is shownon some chamasthe Fiari. (1) Mapentitled"Calabar & Ikang"at a scaleof 1:100,000,madeby theFederal
SurveysDepartmentof Nigeria in 1960and showingphysicalfeaturesand
settlementsbut noboundaries. (Atlas, Map4)
(2) Illustrativemap at a scaleof 1:50,000, showingthe BakassiPeninsulaonly
andmarkingal1thepresent-daysettlementson thePeninsula.(Atlas, Map5)
(3) Mosaicof aeriai photographyflownin 1958/1959.15(Atlos,Map 6)
(4) SPOT Panchromatic satelliteimage of Bakassi and environs taken on 19
December 1986(10m. Resolution).(Atlas,Map7)
SPUï Multispectral XI imageof Bakassitaken on 9 January 1999 (20m.
(5)
Resolution). (Atlas, ap 8) 1
(6) 1986 satelliteimage, with outline shoreline andcreeks from 1999satellite
imagesuperimposed. (Atlas, Map9)
(7) Southernmost sectionof 1958aerial photography mosaic, witoutline 1999
satelliteimageshoreline superimposed.(Atlas, Map10)
(8) Geologicaland Mineral Map of Nigeria published by the Federal Survey
Departmentof Nigeria in1957. (Atlas,Map 11)
Extractof Geologicalmap of the Calabararea publishedby the Directorof
(9)
GeologicalSuwey(Nigeria)in 1957. (Atlas, Map12)
l5ThiswascommissioncbytheUnitedKingdoms cpamncntofOverseasSurveysforamapprogramme
whichwaslaar abandoned. As will be seen hm the compositecomparisonof Bakassi (Ath, Map 9) the
outlineof thepeninsulaand its creeks has remainedbasicallyunchangedover the
past40 years. Some erosionhas takenplace, particularlyaroundthe southemand
westerncoastline: this is shownin the Ath, Map 10. Partlyas a result of this
erosion, the pattern ofsettlementsmay shift slightly with the passage of the.
These characteristicsaredealtwith furtherbelow.
(i) Geologyand PhysicalCharacteristics
3.4 The geology of Bakassi is intimatelyconnected with, and controlled by, the
geologicalevolutionof the structuralelementknownas the Calabar Flank. The
CalabarFlankis a sedimentarybasinboundedto theNorthby whatis knownas the
ObanMassif, tothe southwest by the NigerDelta andto the East bythe Cameroon
Volcanic line.16 The configurationsof the sedimentaryareas and rock involved
are shownon the geological maps included it nheAtlar, Maps 11and 12.
3.5 Accordingtothe continentaldrift theory,the SouthArnericanPlate separatedfrom
the African Platein the early Cretaceous period (about160 million years ago),
resultingin the opening upof the SouthAtlanticOcean. TheBenueTrough17 and
the Calabar Flank developed as events related tothis openingup of the South
AtlanticOcean. The terminationof the Calabar Flank at the CameroonVolcanic
faultline (seeAtlas, Map 12)producesa seriesof structuraltrapsfavourableto the
accumulationof oil, gas and mineralisedsolutions. The CameroonVolcanicfault
line projects hm Mount Cameroon farout into the Gulf of Guinea, to Bioko
l6 The Cameroonvolcaniclinc proceedsout to wa in a south-wsterlydirection. The islandsof Bioko
(Equatoiil uinea).SaoTom& PrincipeandAnnob6narethecontinuatof thatlie.
TheBcnueRiverriws in CamemonandRowsfromEasttaWestthroughcentralNigeria.unijoinsthe
RiverNigeratLokoja:eeAtlas. Map12. (formerly Fernando Po), Principe, Sa6 Toméand beyond. The lower-lyinglands
of the Calabat area, includingthe BakassiPeninsula, lie to the West ofthe fault.
3.6 The Nigerian coastal plain consists of one great sedimentarybasinlaof the order
of 350h wide and 670h long (Atlas, Map 11). Geologically, the crystalline
basement materials makingup the WestAfrican mainland are deeply buriedunder
relatively recent accumulationsof sedimentary materials. The entire coastal zone,
including Bakassi, therefore consistsof a depositional plain characterised by
estuarine lagoons and mangroveswamps. The coastline itself is the consequence
of the interplay of two dominant factors, the deposition of massive quantities of
sedimentof al1types by Nigeria'snvers (the Niger and Benueare the mainsources,
contributing about 60 per cent. of the total) and the action of the Atlantic Ocean
into which the sedimentsare deposited. The waves,tides and currents associated
with the marine environment take the huge sediment load of the nvers and serves
to redistribute it along the coastline, building sedimentatyfeatures in the process.
3.7 These extensivemarine influencesdunng the greater part of its geological history
mayaccount forthe absenceofdeltas in the Calabar Flank area (comparetheNiger
delta to the west) andthe occurrence of river estuaries in the area. However,the
dominanceofthe strongsouthwesternmonsoon constantlyblowingon-shoreal1year
round, and the factthat there is a largeoceanicspacejust offshore,meansthat there
is a long 'fètch'which, coupled withthe prevailingwinds, translatesinto powertül
waves and thus a strong tendency towards shifting and redistributing sediments.
The high intensity of this waveaction on the shore also leads to the creation of
littoralcurrents. ln Bakassi'scase the significantcurrent is that trendingeastwards
from the tip of the Niger delta towards the Cross River estuary. These factors
combine to create pronounced 'littoral drifting' which is probably the most
significant process moulding Bakassi's and indeed the entk Nigerian and
" OnlytheCoastalPlains, SandsandRecentAlluvialDeposiurepresenteintheBakassiare'Ihedividing
linebetwen AlluviumandCoastalPlains Sandsshownon Map12 is saikinglyreproduin thesatellite
imageofJanuary1999(Map8). Cameroonian coastline in the vicinitTides are significa-tbrackish water
penetrates theoastalzone throughthe distributariesof the variousriver deltasto
such an extentthat salinewater penetrationof the coast has been detectedin the
vicinityof Onitsha,0km. inlandhm the Nigenan coast(Atlos, Map 11).
3.8 The composite comparisonof the aerial imagesshowing40eyearsfrom 1959to
1999 (Atla s ,p 10)indicatesnatural erosion taking place on the western and
south-western coastlineof Bakassi. This erosionhe result of the force of the
currentfiowingdown the Cross River Estuary combinedwith tidal forcesin the
Bightof Bonny.
3.9 Thedictatesofcloudcovermeanthat satisfactorysatelliteimagingofthe areatends
totakeplacebetweenaboutDecember1Janua1-ay nd Marchof each year,just prior
to the commencementof the rainyeason. Waterlevels tendthereforeto be lower
at this the of year tha theywouldbe, for example,in November,whenthe rainy
season is comingtoan end. Signficant variationswaterlevel inthe creeksof
Bakassi do occur from season toseason. Theyhave the effect of altering the
topography according to the season. These topographical variations affect
habitationattern on someareas of the Peninsula.
3.10 Muchofthe Peninsulaconsistsof mangroveswampand, as such,it isuninhabitable
Save by the construction of houses raised on stilts. There are also, however,
expanses of sandy beach and raised land whichoccur mainly on the western
seaboard. It is on this westernseaboard thatthe mostsignificanterosionhas taken
placein the la40 years. Towardsthe northernendof the peninsulathe landrises
tofom modest cliffs,which rise to approximatelysix or sevenmetres abovesea-
level. Thereare tracksand paths on the land,but no roads. Cu) Ciiiateand Vegetation
3.11 Bakassi lies within the tropical rainforestbelt, with heavy rainfall and high
temperatures.al1year round, and two distinct seasons, rainy anddry. The rainy
season begins in March and lasts until October or early November: theannual
rainfallexceeds3,000mm. The dry seasonis fromNovembertoMarch. Themean
annual temperature isabout25OC, with a range of abouSOC. The aimasses
dominatethe dynamicsof the climateof Bakassi.The TropicalMaritimeAiiass
from the SouthWest, the SouthWesterlyTrade Wmds, called Ofum Usuk in the
Efiklanguage,dominatethe rainyseason. The Tropical ContinentAirmassfrom
the North East, theNorth Easterly Trade Wmds, called OfumEkorika,blow in
from the Saharaduring the dry season: this wind is also knownmore widely in
Nigeriaas theannanan .heEquatorialEasterlies,calledOfumIkorIdomi,cause
frequent squalls in the Dry Season, described locally as bringing "blinding
lightningsand deafeningthunders".
3.12 In March, April and May the rainscome in violent storms,destroyingcrops and
the roofs ofouses. There is a heavydownpourof short duration,when several
inchesmay be recorded withinan hour. The suddenand torrentialrun-offwhich
usually accompaniesthese thunder-stormsgives rise to wide-spreadsheeterosion
on inlandslopes,producingthe hugeamountsof silt camed downto the seabythe
nvers mentionedabove. It alsocausestheu distinctiveyellowishor reddish brown
colour.
3.13 Relative humidity remains highal1through the year exceptingduring the short
Harmattan spell. It averagesove90 per centalongthe Coast.
3.14 The high temperatureand high humidityfavourquick plant growth, but although
the naturalvegetationis tropical rainforest,the featurestypicalof the coastalplain
throughout this area are heavily inîiuenced by sa-e penetration. Mangrove
swampsdevelopon tidal mudflats,and themyriadmeanderingchannelswhichcut through the swampeventually developtoprovide links betweenlarger channels
(oftenriver distributaries),thusresultingin the complexintercomectedsystemof
waterways. The dominantvegetation along thecoast is mangrove,characterised by
archui stilt-roots. This is gradually displaced inlaby fresh water swamp
vegetationand, where the land becomes more elevated,by rainforest or,where
primary rainforesthas been cleared forcultivation,by secondaryforest.
3.15 Part of the regionhavebeen so farrnedthat traces of the me vegetationare only
to be found injuju groves1which are rarely morethanone acre in extent. This
is me on Bakassiwhere, awayfromthe mangroveswamps,the land hastoa large
extent been cleared and planted withcrops, especiallyin the northeast around
Archibongand Akwa.
C. A Historiai Descriotionof the Area
3.16 Someof the mostevocativedescriptionsof the area areto be foundin the writings
of early Europeantravellers,particularlythose chargedwith openingthe areaup
inthe 'Scrarnblefor Africa'in thelatterhalfofthe 19thcentury. TheCrossRiver,
Calabar,Bakassiand the Rio del Reywere explored andwritten aboutextensively
by H.H. (later Sir Ham) Johnstonwho was, in the 1880s. Her Majesty's Vice-
Consulfor the OilRivers. Johnstonwasmuch travelledin Africa. His address to
the RoyalGeographicalSociety, published in the Proceedingsof the S~iety,~ is
extracted below to give a picture of the area at that time. Much remains
unchanged,and some modernphotographstakenat Bakassiduring the last two or
threeyearsillustrate someof the sceneshe described. Johnstonfirst describes the
landscape:
l9 Arcasofbush whichhavespecialspiriaialsignificanceandlimitedaccess.
" EveningMeetingof the RoyalGeograpl ociety on 12 Nmember A. copyof this Iccmrc.andof
otherroceedingsof theRoyalGeograpl ocietyrefeIOin laterChapters,havebeenlodgedwiththe
Courtin aeparateboundvolume. "The 'OilRivers' -so calledhm the factof their producingthe bulk
of the palm oil exported hm West Africa - are the main rivers,
creeksandestuarieslyingbetween theeastem boundaryofthe British
colonyof Lagos andthe northem frontierof the GermanProtectorate
of the Cameroons. ...although close to the sea-coast, within tidal
influence, the estuaries of these rivers are interconnected by a
wonderfulnetworkof more or less navigablecreeks(Plate 1).'l
Arriving from Europeby sea, it is generallyby the soundingsand
discoloured appearanceof the water thatwebecomeawareof the near
approach to land, rather thanby sightinganypart of the shore. When
withina fewmilesof the mouthof one of these nvers, thelowcoast-
line is at first indicatedby isolatedtrees, which appear as islets of
forest unconnected with each othera ,nd distorted by the mirage of
each horizon. Gradually theseislets, whichare reallythe loftiermes
of the fringeofcoastforest,becomeunitedin onelineof purplegreen
(Plate2), divided only by the irnposinggap of the estuary for which
our ship is bound.
The bar of the rivermaybe -as in the caseof OldCalabar ...sodeep
as to be without danger ... . Once overthe bar and within the
estuary, we find ourselves surrounded by a lake-like expanse of
smooth water, the shoresof which arefringed with lofty mangroves
(Plate 3) with their ghastly white, blood-streakedtrunks - streaked
where the bark has beentom or frayed(Plate 4) - and their graceful
poplar-likefoliageof a sad, dull, yellow-green(Plate 5). Behind the
mangroves,however,generally show the dark and dense masses of
inland forest, growingwhere the land has acquiredfimmess and lies
just abovethe lirnitsof high tide (Plate6); or as faras you can see
from the ship'sdeck, ail and everythingthat is not yellowwatermay
be unvaryingmangrove.
Atsomespot wherethereis a stretchofcleanwhitesandand fim soi1
emergingfrom the mud,you maydistinguisha landing-placeof some
native village (Plate). which is usuallycharacterised by a strip of
varied forest (Plate 8). mingling with the lingering pandanus and
mangrove. Possiblythis is somelittleinletor bay (Plate9).protected
from the strongwaveletscreated by the sea-breezes,which are liable
21 The photographsillustratingthis andlaterChapto be foundin the Annexof Photographs(Vol. 12 i
of the Counrer-Mernori. eferencesato nurnberplates intheAnnex. l todisturb the equilibrium of the native's canoe. The shore of the
sandybeach is bright with thecrimsonflowersof the ta11cannas. The
natives'canoes are drawn up to the limitof the high tide, and fastened
to stakes (Plate 10). The village will probably lie some quarter of a
mile inland and be embowered in exuberant forest (Plate 11). The
houseswill be poor, ramshacklestructures of pairn-fronds(Plate 12).
and their inhabitantstimid, naked fisher-folk possessinga few fowls,
goats, and mangydogs."
Johnston goes on todescribe the administration of the area by the British, the
characteristics of Old Calabar and the close affinitythat the local populationhad
developedwith the British:
"...the country between the boundary of Lagos and the German
boundary of Cameroons is at present administeredby Her Majesty's
consular officers, under various Orders in Council. ... The
headquarters of the consular establishmentis at the important and
relatively healthy town of Old Calabar, on an aWuent of the Cross
river. OldCalabar not only contributes alarger shareof the [pairnoil]
trade than any of the settlements on the Oil Rivers, but it promises
from its position and relative healthiness to be an important
administrative centre in the future. It has a population of probably
15,000 natives, andabout 150 British subjects whoare foreigners, of
whom over fifty are whites. Some of the Europeans (missionaries)
have resided there for over thirty-seven years;two of them are aged
respectivelyeighty-twoand eighty-one,and the health of the whites,
both in Old Calabar and Creek Town, is generally superior to that of
any other town in the Oil Rivers, or, indeed, in WestAfrica.
The natives of the Old Calabar district are thoroughly loyal toGreat
Britain, and very gladly accept its rule. They are ruled over by a
nurnber of native kings and chiefs, some of them of long descent and
proud lineage, who live in handsome well-built European residences,
and on Sundaysand feastdaysdress elaboratelyin European clothes. ..
The interiors of the Calabar houses are not devoidof taste, andtheir
architecturegives a faint suggestionof Saracenic, as though originally
they had been under the influenceof the Niger peoples. Indeed, the
arrangementof their houses differsmarkedlyfrom that which prevails
in the Bantu country across the Cameroons border."3.18 As Vice-Consul, Johnston tookgreat care inhis travelsto ascertain the origins of
the localpeoples and he had this to say aboutthe provenanceofthe peoples around
Old Calabar and lowerCross River:
"The natives of Old Calabar and the lower Cross river belong to the
E6k race. In language, and nodoubt in origin, they are allied to the
Ibos of the Niger Delta. They have scarcely been senled at Old
Calabar more than a century and a half. Originally they came from
the Ibibio district on the Cross river, and drove out and partly
supplantedthe Akpa tribe, who originally inhabitedOld Calabar."
There can be no doubting Johnston's portrayal of the area as being physically,
culturallyand politicallypart ofthe domainof Old Calabarand firmlyunderBritish
influence.
3.19 Johnston's published papers were illustrated with maps.Two of those maps are
reproduced in the Atlas (Maps 13 and 14). The firstof these maps sketches inthe
Anglo-Germanboundary line running north-eastwardsfrom the head of the Rio del
Rey or Fiari to the Cross River Rapids. The "BakasseyPeninsula" is shownas an
area "previously[i.e for some time] under British protection" and an area further
up the Cross River is shownas havingbeen "addedby recent treatie~",~many of
which Johnston hiinself concluded. The second map(Map 14)does not name the
peninsula, but it showsin outlinethe pattern of the islands. "Arsibon'sTown"(the
modem Archibong)is shownto the North. The Anglo-GermanBoundaryis shown
as ninnin ngrthwardsfrom the head of the "Ndiani [sic]Rivern whicb flowsinto
the Rio de Rey(on this, see further para. 3.22 below). The line then depainsa
north-easterlydire~tion.'~
" See furtherChapar6 below
" This was almostcerainly a camgraphic-it shouldhaveNrnednorthwestrowardsthe CrossRiver l
Rapids.3.20 On both maps the areais shown as king populatedby Efut people. The Efut
peoplewere migrantsand werein fact absorbed by the Efikpeople. The Efikwere
mainlyresponsible forfoundingsettlementson Bakassi andare shownon Map 14.
Later the ibibio also cameto settlein the villagesfoundedby the Efik, rather than
vice versaas Johnston thought. NowadaysEfik is the dominantlanguageand the
people of Bakassiare generallyreferredto as Elïk.
3.21 The Rio delRey estuary on the eastern seaboardof Bakassi andits significanceis
described in detaiby Johnstonwho was by that the ActingConsul, in his Report
on the Surveyof the Rio del R$4 undertakenduring the first monthsof 1887.
The Report is the work of a thorough and, in many ways,remarkable man.
Johnston came to West Africa followingexpeditionsto the Congoand to Mount
Kilimanjaroin East Africa. He was to assumeofficeand travelin manyparts of
Africa subsequently. This surveyof the Rio del Rey followeda short trip up the
CameroonsRiver, and sixweeks'explorationof the CameroonsMountains,as he
calledthem. The threemonthshe spentsuweyingthe Riodel Reydistrictwerethe
most intensivesurvey work he did, for, in additionto king appointedby Lord
Salisburyas Vice-ConsuloftheCameroons(hisfirst post)hebecame,onthe failure
of Consul Hewett's health,25Vice-Consul of the Oil Rivers Protectorate and
ActingConsulfor the Bightsof Beninand Biafra.
3.22 What is particularly strikiig in this Report, for the purposes of this Counter-
Mernorial,is the passage appearing on page 9 entitled "Note (D) - the Anglo-
GermanBoundary".It reads as follows:
"If 1 might be allowed tooffer an opinion,1 would suggestthat the
most satisfactory delimitatiof the boundarybetweenthe Britishand
German Protectorates wouldbe for the western limit of Germanrule
in the Cameroonsto follow thelefibank of the Riodel Rey from the
24 Seepara.7.20 below.
Theactivitiesof ConsulHeweaaredescribedinmoredetailinC6 below. sea to the Ndian River," and then continuingalongthe main sueam
of the Ndian as faras the sourceof that river, to followa straightline
drawn in a north-easterlydirection from the sourceofthe Ndianto the
rapidsof the CrossRiver,an approximatedistanceof 40 miles.
From thispointon the CrossRiver,as alreadyarranged,theboundary
strikes right across to the bendof the Upper Binué.As previously
mentioned, the NdianRiveris inmanyrespects asuitableboundaryas
it marks a distinctethnographicalfrontier. On the northem side the
ruling inhabitantsmainly belong to the Calabar tribes and speak the
Efi kanguage or tongues akinthereto;at anyrate (withthe exception
ofa fewstragglingBarondoSettlementsof semi-slaves)theyal1agree
in not king Bantu, and al1their trade is directedto Old Calabar.
Moreover,the nili Chiefshaveplaced themselvesby Treatyunder
British protection(1884). Onthe southemsideof the NdianRiver the
CalabarSettlementsare only,as far as 1canascertain,twoin number,
and the buk of the populationconsistsof purely Bantuuibes suchas
the Barondo and Bakundu, who, in their language, physique,
superstitions,andcustoms, areelatedtothepeopleoftheCameroons,
the Congo, and the South-WestCoast, and to the races of the great
Lakes, the Zarnbesi,the East Coast, Zululand,and Natal. Withthe
exception of the two Calabar Settlements,the greater part of the
commerce southof the NdianRiver is carried on with Cameroons.
An essential considerationto be rememberedin delimitingthe frontier
is thegreat importanceof the AkwayafeRiver to Old Calabar.
...Should any portion of the course of the AkwayafeRiver be
alienated from British nile, it would produce a most unfortunate
impressionat Old Calabar."
3.23 Johnstonwasan acute observerand knewwhatto look for in determining colonial
spheres of Suence. As willbe apparent from subsequentChapters, the truths
underlyingthe observationshe made over 100years ago remainunchangedtoday
as faras Bakassiis concemed. Theethnographieinfluenceon the toponymyof
Bakassiis examinedin detailbelowunderthe heading "Namingof Settlements"
26 SeeAtlasMap15forthe locationtheNdianRivertheRiodelReyand theCross RiverRapids.3.24 Johnston'sReport on his Surveywas made in 1887. By 1890he had become
Consul for the Bights ofBenin and Biafra and was in a position to put his
observationsntopractice:see para. 6.36 below.
D. Human ~~0p1.a~ho vf Bakassi
(i) Populationand Settlements
3.25 Figures givenby the National Population Commission in Calabar state that the
current populationof Bakassi isestimatedto beinthe region of 37,500. This
figureis projectedfrom the lastcensus,whiwas carriedout by Nigeriain 1991.
Approximately40 per cent. of the population arefishermen.
3.26 The most denselypopulatedareas on the peninsulaare those where there is firm,
dry land. These includethe area around Archibongat the northernend of Bakassi
(seeAtlasMap 5). Nigeria'slegalteamvisitedBakassiin June 1997,followingin
the footstepsof the U.N. FactFiding Mission whichwentthere in October1996.
The majorityof the Bakassiphotographs whichfollowin the Photographie Annex
were taken on the occasionof the Nigenan team visit. The team first visited
Archibong (Plates13-15)and weregreetedby childrendancing inwelcome(Plate
16): they were given a guided tour to the Palaver House (Plate 17), the old
MethodistMissionBell(Plate 18)and therubberplantations (seepara. 3.31below).
Pictures of the Palaver House (Efe Ekpe Shrine) without its hangings and the
MethodistChurch established in893appearat Plates 19and 20.
3.27 South of Archibong, on the western seaboard of Bakassi, lies Abana (see Atlas
Map 5).TheareaaroundAbanahasbeenthesubjectofsubstantialerosionbutthere
Ge still extensivebeaches: the peopleon the beach demonstratedtheir feelings
aboutBakassivecyopenlywithplacardsandceremonialdancers(Plates21and22).3.28 Similar coloumil and ceremonial demonstrations were staged at Atabong East
(Plate 23) and AtabongWest(Plate24). Plate 23 showsceremonial swordfighting
on the jetty at AtabongEast. At AtabongWestthe tearnwas met by an assembly
of elders (Plate 24). The Atabongslie on either side of the wide creek known as
Bakassi Creek or AtabongCreek. They form the most substantial settlementson
Bakassi'sAtlantic seaboard.
3.29 Fishing settlementsvaryin size from a few huts (Plate 25) to sizeable collections
ofhouses. The construction of houses varies from the traditional palm and cane
structurestomud-walledhouses to modem brick-built structures(Plate 26).
(ii) Agriculture
3.30 The land on Bakassi is mostly unsuitable for agriculture. The main food crops of 1
the area are cassava, yams, coco yams, maize, fluted pumpkins and plantain, but
not much of any of these is grownon Bakassi. The heavyrainfall causes such soi1
as there is tobe water-loggedfor most of the year, and growingis resuicted to
small plots of plantains, bananas and coconuts withsome small vegetablegardens
around the compounds. The people therefore depend on other sources for their
food. The area has not traditionally been associated withgrowing theoil palm trees
thatwere the staple economic crop of the Oil Rivers Protectorate. Raffiapalms
are, however,grown. Their productive lifeis short. Palrnwine is extractedfrom
the raffia palm for about two months, usually in its tenth or eleventh year, after
which it withers and dies. Raffia palm wine is particularly tasty, being nch in
yeast. However,in addition to wine, raffia palm provides most of the traditional
building materials, raffiaand piassavafibre. Raffialeavesare made intomats, and
the nbs are used for rafters as well as for constmcting the walls of houses, whilst
the piassavais used in place of nails and twine. Brooms,hard bmshes and raffia
for the local weaving industry which produces colourful mats and bags, arealso
products of the raffiapalm.3.31 AroundArchibongthereare also&ber plantations(Plates27 and 28) whichhave
been in the ownershipof local familiesfor manyyears."
3.32 Fishing is the main commercial activityin the area. Indeed, this part of the
Nigerian coast borders one of the most important commercialfishimgareas off
Nigeria. Fishing is carried out along the creeks, along the coast and in distant
waters. The geographicailocationof Bakassiis suchthat it is situatedrightat the
meeting pointoftwoverydifferentoceancurrents, theGuineacument,whichflows
from Westto East and is a warm current, and the Benguelacurrent, which flows
from South toNorth up theWest coast of Africa and is a cold current. This
confluenceproducesnot oniy avarietyof watertemperatures,but aiso seas which
are frequently choppy. These are conditions much favoured by shellfish for
breeding. The artisanalfishingactivityin the regionis dominatedby canoe-based
fishing.and is targetedat pelagicspecies such as bonga, sardinella,anchovy and
shad, as well as demersal species such as grouper, mullet, sole and shrimp.
Although the fishermen travela longwaydownthe coast, the main activityoccurs
withinfivemilesof the shore.
3.33 As the result of the unique combinationof maritime conditionsin the area,
"strangerfishermen" comefromthe NigerDelta, Ogoni, Okitipupa andas farWest
as Ghana. These strangersare full-the fishermen. They are not permitted to
exploit any forest produce exceptfirewoodand sticks tobe used for drying fish.
Theytherefore dependon the localpeopleforfishimgtraps, da nets (usedmainly
for shrimps,crayfishand lobsters),cames and roofing mats, the rawmaterialsfor
which ail come from theforest. Manyof the local fishermen traditionaliy spend
- ---
" NC-M64 containsa wriüsnsraremendtated23 October1997signedby MrsOfonyeterccountabrief
historyofthe~bberplantatio. C-M65wntainsaccountsforAgriculmrlo-operativleoans.TheseCo-
operativSocietiesreceivebackingfromCross RSrare. part of the yearrnaking or repairingthis equipment,not oniy for themselves but
also for these strangerfishermen. Over thelast 30 years the introductionof more
modem fishing equipmenthas meantthat a growingnumber of local people have
taken tofishingas a full-tirne occupation.Manyof themmigrateto distantfishing
groundsup and downthe CameroonCoastand beyond. These migrant fishermen
usuallyreturn homeduringfestive occasionswhentheybring back large quantities
of dried fish for sale, therein gmuch greater demand for fish in theCalabar
area than in the Cameroons.
3.34 A variety of fishing methods is employed, includingthe use of traps and nets
(Plate29), but weirs are not allowedexceptacross small creeks. The one-inch
mesh net may be used only to catch small-sized fish like Ekpai (ethmlosa
sardinella).Womentake part in creek fishing andgatheringperiwinkles,but their
mainjob in the fishingeconomy isto sel1the catch, which is usually disposedof
in the formof dried fish.
3.35 The innovationsin the local fishing industryof the past30 years, such as the use
of nylon nets which are lighter but stronger and more durable, has led to the
establishment of Fishing Co-operative Societies with the assistanceof State
funding2* There are over 170 groups identifiedfor credit administrationwithin
the CO-operatives,with approximately 11,150men and over 600 women beii
beneficiaries. Over 17 million Nairaz9have been paid out by the Federal
Department of Fisheries through the Cross River State Government Fisheries
DevelopmentUnit, which has its headquartersat Ikang. The CO-operativesuse
these moneys to purchase outboardenginesfor their canoes andnylonnets which
have resulted in larger catches, but the problemof preserving fish remains.
Smoking is the acceptable methodof preserving fish not sold fresh, but a
28Examplesof accounrproducedfor FishingCo-operaSocietieson BakassiarecontainNC-Mn 66,
together wihorrespondeneith theFederalFisheriesOfficerinrapplyinfora loanwonh£60,000
fromone oftheCo-operatiSocietieswhich compridakassiFishermeamongstirrmemben.
29TheNairahasflucaiarein valueovertheyears,butthe sumsinvolvedareof theorderof £500,000to
£1,000,000(U.S.S800.00to1.6m). considerable quantithas in the past gone to waste because of poor smoking.
Saltingwas introduced, butwas unpopular because, amongst other things, it
involvedexpenditure in purchashg sait as well as containers.As part of the
Fisheries Development Programme, processingovens have been installed at
strategicpointson andaroundBakassi.
3.36 Plates30to 31 showfishermenat workin the creeksandthe fishing fleetgoingout
to sea from West Atabong. Between 70 and 100 boa& were counted on the
occasion whenthesephotographsweretaken. Many moreboa&canbe seenon the
beachesat the Atabongsand Abana(Plates32 to 33).
E. The Naming ofSettlements on Bakassi
3.37 At the tum ofthe century the permanent populatnasmuchlowerthan it is now.
Bakassi tended to be usedby the inhabitantsof larger settlementsWestof the
CalabarICrossRiverestuary as a basefor seasonalfishingactivity." The practice
thus grewup of naming senlementson Bakassiafter the Efik familieswho used
these settlementsas a fishing base. Sometimes thefounder's name was used,
sometimes thenameofthe townfromwhichhe came. It is forthis reasonthat one
finds placeameson Bakassilinkedwiththe namesof settlementsiyingfurther to
the Westand North-west,but never(so faras is known)to the Eastor Southeast.
3.38 The word Ine in Efik meansfishingsettlement.ThusIne Ekpai is a fishing village
founded bythe head of the Ekpaifamily, andIne Okopedia settlementfoundedby
people from Okopediwhich isnow in the OkoboLocal Governmentha of the
presentdayAkwdIbomState. In addition,villagenamesmayincorporatereference
to a localhysicalor vegetationfeature: for exampleUtanin Efik means "sand".
Arabongliterallymeans "placeof cane".
Bakassiwascolloquiallyrefemdtoasthe "FishTom" ma, esbyctheBritish.3.39 The ongins of the name Bokarsi itself are variouslydescribed. Traditionally,in
Efik, it means "go early and arrive before dawn". However, the first Efik
fisherman toestablishhis fishmghut in the forestregionis traditionally thoughtto
have been Abasi Eke, a native of Old Town or Obutong @art of present day
Calabar). TheEfik at first cailedthe forestAkaiAbasi Eke (Abasi Eke Forest).
The British sailors who frequentedthe area in the eighteenth centuryare said to
haveanglicised AbasiEke toBakassey.
3.40 The earliestEfiksettlementsin theregionwere sitedat the northemendofBakassi.
Arsibon'sTown,which becameknownas Archibong,was referredto as early as
1786in Antera Duke'sDiary:" it was re-populatedby Prince AsibongEdem III
as his ownfamilycolony,in the early partof the 19thcentury.
3.41 Abana is situatedon land which is traditionallyheld to havebeen givenby King
OrokBasseyDuketo his twobrothers-in-law,Ntuen Umo and Ebe, who migrated
from Esuk Mba (in present-day Akwa Ibom) over a hundred years ago. The
original settlement has, according to the Town & Country Planning Division,
Department of Lands, Surveys and Town Planning, Calabar, been entirely
submergeddue tothe incursionof the Cross River estuary. The sand bars are
visibleduringlowebb tideat the originalsiteof Abana(AkaniObio). Mention has
alreadybeen madeaboveof this processof erosion.
3.42 Lists of settlements onBakassiappear in the Tablesat the end of this Chapter.
Table1 is a list of al1the present-daysettlementson Bakassi, together withtheir
CO-ordinates.Al1thesesettlementsappearon Map 5 in the Atlas. Table2 is a list
of settlementswithtranslationsofthe Efikordsin their namesanddetailsof their
founders, showing their Efik ancestry. The narnes are, where possible,cross-
referencedtothe genealogical tablesof Efik clans appearingin Tables3 and 4.
" Sec. hirther.refemethe Diaryin paras.4.10 and5.16 below.The Dukefamily,originallyfromOld
Calabar,arconeof themostprominentonBak-see paras.4etseq. andTables2attheendof this
Chaprer. Tables3 and4 list the twelve main familieswhoweremditionally membersof the
Council of the Obong of Calabar many of whom are associated withfounding
settiementson Bakassi. Sevenof these familiesnow remain. Manysettlements
have a central core with surroundinggroups of huts, each with its owndistinctive
name. These are too numerousto be shownon maps of the scale contained in the
Atlas. Examplesare listed inDr. Effiong-Fuller'srecentbook on Bakassireferred
to belowin paragraph5.19.32
3.43 The Efik origins of these names assumeparticular significancewhen readin the
context of the GovemmentEdicts and Decrees naming settlementsin particular
administrativeareas. Theseare considered indetailbelowin Chapter 10 andshow
incontrovertibletraditionallinksbetween thepopulationof Bakassi and its modem
administration.
32 TheStoryofBukassi.Calaba1996. A copyhasbeenlodgedwittheCourt. CHAPTER 3: TABL1
PRESENT-DMSETIZEiWNB ON BAKASSIm. 3.42)56. IneOkopedi 8"34' 34" 4" 30' 27"
57. ibuotUtanAtabong 8"32' 20" 4" 30' 03"
58. IneItung 8"34' 34" 4" 30' 00"
59. AkwaIneItung 8"36' 13" 4"29' 54"
4"29' 35"
60. EastAtabong 8"33' 09"
61. ibekwe 8"33' 30" 4" 29'41" CHAPTER 3:TABLE2 - BAKASSILIST OF SElTLEMENTS
WITH TRANSLATIONS AND FOUNDATION DEï'AiLS(para. 3.42)
NO. PLACE NAME TRANSLATION FROM EFIW TABLE HISTORY
EXPLANATION X-REF
1. Abana Namedafter the founder 3-12 Foundedabout 200yearsago by ObongAbanaNtuen Umo,
an Efikof EAatdescent
2. AbanaNtuen Ntuen'sAbana 3-12 Founded inthe nineteenthcenturyby EdidemNtuenUmo.
3. AdakUko or Adana Oko BoundaryLine - OriginallycalledAdanaOko EyoEmato showboundq
between Otung anEfiomEkpo Groupof Familiesat Creek
Town,W. Calabar. I
4. AkpaNkanya Namedafter the location whwild 3-12 Thepresenceof fishin Bakassiwasnotthe only incentive to
roofingpalmsgrow in abundance senle in the area. The wildpalmsthat growthere are of great
economicvaluefor they are used in weavingroofing mats.
Establishedby EfiongEtim Efa fromAkwaObioEfiat,
whichis TomShon in the estuaryof the CrossRiver.
-
5. Akwa A largetownnear ArchibongTown This townis a combinationof severalsmallvillages.
- Allocatedto indigenesof Ibekwein IkotAbasi,AkwaIbom
6. AkweIneIbekwe A largefishingsenlementof Ibekwe
people State.
4-14 Foundedby AntaiEmaOtongOtu~esembe of Adiabo,
7. AkwaIne Itung LargeBshingsettlementof cover
WesternCalabar.
Archibong Namedafterthe founder 3-11 Foundedcl886 by PrinceAsibongFkiemEkpoEffiom,a
8. descendantof DukeEphraimof Calabar.
9. East Atabong Placewherethereis cane 3-2 Establishedin the 19thCenturyby ObongEkpotAbia
Ntekim AntaiUmo ofHenshawTown. IbekweandOkopedi
II aretwo of the settlementsbelongingto AtabongEast.NO. PLACENAME TABLE
TRANSLATION FROMEFiW HISTORY
EXPLANATION X-REF
10. WestAtabong Place where thereis cane 3-14 Foundedin the 19thCenturybyObongAntai EmaOtong
Otu Mesembe, an Efikof Adiabo in WesteCalabar.
11. Edem Abasi PartIBackof God - Founded inthe 19thCentury.
12. IbiongUtanIbekwe lbiong-LyingacrossUtan -Sandy - Thename Ibekwesuggeststhat thesenlementis ownedby the
Areaïbekwe-Ibekwe peopleof Sandy ïbekwein AkwalbomState. (SeeNo.6
above)
13. ïbiongUtanltung A sandycovelyingacross 3-2 Foundedby EmaAndem1niang.
14. ïbuotUtanAtabong Sandyheadwherethere iscane - Establishedby Atabong indigenes.
15. lfiari1 Not known,but thereis aEfikword -
efiar(bitterkola nut)
16. IfiariII Notknown, butthereis anEfik word -
efiar(bitterkola nut)
17. IneAkpaIkang Fishing settlement, lgiver 4-5 Founded inthe 19thCenturybyObongAdimAtai, aKing
fromOldTown(Obutong),Calabar
18. IneAtpak Fishingenlement(foundedby) - FoundedbyAkpakNteObiongNtekimof IboutUtan.
Akpak
19. IneAmamong Fishingsettlement Establishedby persons fromAmamongOkoboin AkwaIbom
State
20. IneAtayo Fishingsettlementnamedafter 3-3 Foundedby AtayoUmoof Ntierofamily lineage. hereare
founder twovillagescalledby thisname,andthe second(smaller)
onewasfoundedbyAtayoOsosiof EsukEnwang.
-
21. Ine ïbighiEdu Fishingsettlementnamedafter Foundedbythe Okobopeoplefrom Ebighi-Edu in Akwa
founder lbom State.NO. PLACENAME TRANSLATIONFROMEFIKI TABLE HISTORY
EXPLANATION X-REF
22. Ine Effiom Fishing settlemetamedafter - Foundedin the 19thCentury.
founder
23. IneEkpai Settlementnotedfor Ekpaifishing - Ekpaiis a type offish,the sizeof a sardine.
-
24. IneEkeya FishingsettlementfoundedbyEkeya Fishingsettlementfoundedbypeopleof EkeyaOkoboorigin.
25. IneIkang Fishingsettlementin the . Foundedinthe 19thCenturybyObongAdimAtai, aKing
neighbourhoodofIkang fromOldTown(Obutong),Calabar.
26. Ine lkoi Fishingsettlementofthe Ekoi 4-5 FoundedbyObongAdimAtaia KingfromOld Town.
27. IneItung Fishing settlemett cove 4-5 FoundedbyEtimNtung.
28. IneMba Fishing settlemetamedafterMba 3-12 Mba Efiom,a trustedservantof GreatDukeEphraimIV,
Efiom whoalsofoundedEsukMba in Akpabuyo.
29. IneNkaneOkure1 A collectionof fishingSettlements 3-12 Foundedinthe 19thCentury.
IneNkaneOkureII Nkan-Okureis a typeof enclosed settlement.
30. IneNwahaOfong Fishing settlement - Inthe earlydaysof this settlemefightbrokeout in
whichthoseinvolvedhadtheirclothestorn, hence thename
"Nwaha-Ofong"(tornclothing).
31. IneOdiong Fishingsettlementfoundedby . - FoundedbyOdiongNsalkwoEmeneyoof Obong Nim.
Odiong
-
32. IneOkopedi Fishingsettlementofthe Okopedi FoundedbyOkobo peoplefromOkopedi.
33. IneUkpong Fishing settlemefoundedby Foundedinthe 19thCentury.
Ukpong
34. IneUtan Sandyfishlngsettlement -
35. IneUtanAsuquo SandyIishingsettlementfoundedby -
AsuquoNO. PLACENAME TRANSLATION FROMEFiW TABLE HISTORY
EXPLANATION X-REF
36. InuaMba Fishingsettlement - Sameas nos. 30 and31.
37. lshie Unknown 3-12 Thereis anlshieTownin theCalabarurbanarea.
-
38. Mbenmong Edgeof River Foundedin the 19thCenturybyObongEkanemEsin, from
hisextral-linealfarnilyof GreatDukeEphraim.
39. Nwanyo FishingSettlement - Settlementof UsakEdetEfik.
40. Ohm Akpa BreezeRiver 4-1
41. Onosi FishingSettlement - Onosi,n. thefabledabodeof thedead,Hodes,locatedon
S.W.pointof Bakassi.Accordingto Efiklote, Onosiis the
ghostlandto whereal1thedeadgoeachyear.It was
beliwedthatal1theghostsof personswhodieeachyear sail
in alarge canoeat midnightevery Decembr1, singingand
paddlingto theirnewhomein Onosiinthe wordsEkpoke
enyonoOnosi-OUwayaya!("Theghostsare returningto
Onosi-Uwayaya".) Founde idthe 19thCenturybyNtuen
AkpeOdiongNtekim.
42. Ufot Ineltung Middlefishingsettlementat cove - Foundedby EtimNtung.
43. UtanEdim Sand rain - CHAPTER 3: TABLE 3 GENEALOQY OF PRESENT DAY EFIK CLANAND POUNDERS OF BAKASSI SETTLEMENTS (i) (para 3.42)
(1) EFIOM EKPO
I
I I I I
(2)ANSA EFIOM (3) EDEM EFIOIM (4) ODO EFIOM (5)OKOHO EFIOM (F)
(AtabongEast) (IneAtayo)mily) (Childless)
(IbiongUtam Itung)
I I I
(8) EKPO (9) EDEM (10) ETIM
(3) EFIOM (EtimEf 1omHouee)
l 1
(11)ASI~ONG (12) EBEM (14) SE ETIM (FI (15) BDE ETIM (16) UTONG'ETIM (FI
(ArchibangTown)y) (AbamabAkua Nkanva1 1
(Ine Mba) . - I
(Ine Nkan Okure 1 011) (Ishie) (171 EDNC EDEM
I
I I
(18)IYO EDEM (19) E'IOM EDEM (20) OROK EDEM (21) EKPO EDEM
(22) BDED EDAK
(23)AFIONG (24) EYOANWAN I
(Motherof B.E.E. Adam) (23) EFIOM
(26) ENE MKPANG
(27) EDEM EFIOM (28) EYO EFIOM (29) EKPO EFIOM (30)UMO FIOM (31) EKEI EFdOM (32)EDEM EKPENYOUNG
(33) ENE EYO ENE MKPANG (Adam 1.1901-1906) (Adam 11 1961-1967)
I l
(Obongof Calabar 19897)BHAM (Obong of Calabar) 1992II CHAPTER 3: TABLE 4 QENEALOGY OP PRESENT DAY EFIK CANùJPOUERIERSOF BAKASSI SETTLEMENTS (ii) (para 3.42)
(1(INEATAYO)KU
I
(2) OKU 3 EMA
(4) UKONG (INEAKPA IKANG)
I l I (INE OKOI)
(6) EKPE (8) UKPONG (INE ITüNG)
I (" i" I
(9)ESSIEN (10) ENE (11) MESEMBE
I l I
(12) EKPE (13) EKPO (14)OTü
I I (AtabongWest&1AkwaIne Itung)
(15)ANS WF) (16) ITAM
(17)EKPO (18)0EFFA1 (19) INAMETI (20) EWA (21) ESU
(22)ANTIGHA (23)UKPONG (24) MARY (FI
(25) EFA (26) EKPENYONG
EDIDEM (27) EDIDEMOTU
OTEFFA IXONG EKPENYONGEFFA IX (28)OTü (28)OTü (29) UKPONG (30) EKPE (31) EFFA
I
(32) &A (F) (33) OKON
(34)EEE ASIDO (35) UK~ONG
m
(36) N YONG (37I ENA (FI
(39) OTU'BKPBNYONG
EFFAIX îHAPïER 4
1 THE HISTORICALBACKGROUND PRIORTO 1884A. Introduction
4.1 This part of Nigeria's Counter-Mernoriao lutlines the historical backgroundto
Nigeria'stitie to the Bakassieninsula.
4.2 The history of the south-easterncorner of Nigeria, whereBakassiis situated,has
many characteristicswhich can be explainedonly by referenceto the particular
geographyof the region. As indicated inChapter 3 above, Bakassiis largelya
collectionof mangrove islands,virtuallyinaccessibleexceptby boat up acomplex
network of creeks and sandbars. Thistopography, and the geography of the
hinterland further north, has done much to define the history not only of the
peninsulaitself, but also of the adjoiningtemtory furtherWest.
B. The Period UD to 1807
4.3 The Ibo" peoplesof South Eastern Nigeria,andtheir neighboursto the South-East
towardsthe Carneroonborder in the regionsof the Niger Delta, the CalabarRiver,
Cross River, Akpa Yafeand the Riodel Rey,already had a long history of their
own by the time the Portuguesefirst exploredwhat is now the Nigerian coastline
in the courseof the 15thcentury."
4.4 Geographicaland political conditions in south-easternNigeria have alwaysbeen
very differentfrom those prevailingin the North, which are describedmore fully
in Chapter 13. The forest areas East of the Niger were difficultto penetrate.
Consequentiy,the MuslimStatesof the Northseldommademuchheadwayintothe
Ibo temtories or into the rainforestto the South, bordering theGulf of Guinea.
' Alsocalled'Igbo"
" Theearlyhitoryitoa considetabdegreeundocumenteda.ndknowledgeof ittherdependsheavily
onarchaeologiclixoveriesandlocaltradition.Mostof theavwrinenrecords&te from1600and
later. In these areas, which had little experience of being invadedor overrun hm the
outside, there was linle tradition of developed monarchical govemment.
Nevertheless, a sophisticatedand populous society appears to have developed as
early as the 9th ~entury.'~
4.5 The peoples ofthe Guinea Coastwere thus to a considerabledegree sealedoff fmm
the developed northem states by geographical factors, and evolved in a very
differentway. Since the 16th century they havebeen materially infiuencedby, and
themselves infiuenced,the European tradersactive on the coast.
4.6 In the seventeenthand eighteenth centuries, theprimary commercialactivity of the
GuineaCoast was the slavetrade, whichexpandeddramaticallyto meet the demand
from the southem part of North America and from the Caribbean.'6 The kings
and chiefsof the area around the CrossRiver estuary were oftenthemselves active
traders andfishemen. In addition to slaves,they also exportedcomrnoditiessuch
as gold, gum, hides, timbers and palm pmducts.
4.7 By the eighteenthcenturymanyhad more than a smatteringof Europeaneducation,
and could read, write and reckon. Frequently they were powerful commercial
figures, playing an active part in the booming slavetrade. They dwelled in what
they consciously called towns, often compactly situatedwithii river estuaries or
indentations.
4.8 The emergence of such trading towns in and to the east of the Niger Delta
representeda social revolutionas wellas a politicaland economicinnovation. The
kinship systemgavewayto a "House"system, by whichboth freemenand the large
" This civilisaappearsIO haveenjoycdsurplusesof wealth supportgevelopedcranspecialisations.
includinghighanddistinctibronzeart.
36 There wasal thistimt a considerdemandforslaves inthe Europenoloniesin theAmericas. To
satisfythisdemanda substantlodyof tradegrewup. regulatbynumerousinternationaalgreemenn.
includithewell-knownSpanisAsientoconuacn. Themain sourcefsupplyfortheslaves wasthecoast
of WestAfiica. numbers of slaves neededto man trading canoes and strategic and economic
interestsmerged into large 'corporations'headed by the leadingmerchants. The
resultwas the emergenceof a series of "City States",dominated by the mling
Houses.
4.9 Therewasfarmore availablelandthancould befarmed,andconsequentlyitsvalue
was low. As elsewhere in South Eastern Nigeria,)7the land was in a sense
communal. In the Calabarareait wascontrolledby thetraditionalmlers, whoheld
it in trust for the people. Wealwas measured not in landbut, quiterealistically,
in the peoplewho couldproducefood,carry on tradeandfishing,exploitminerals,
practiseartsand crafts, and support the localkmgs and chiefs, their households,
administrations and armies. Measured by population, the area was wealthy.
Thanks to the practicallyinsatiabledemand forslavesfrom the mid-seventeenth
century omds, people were a commodity,for the European traders and the
indigene chiefi alike. The slavetrade was heavily focusedon the Guinea Coast,
and led to a prolongedcommercialboom anda greatgrowth intradeof al1kinds.
4.10 Thisboomingpattern of trade led to the appearance onthe coastof a new classof
African merchants,freed from many of the restrictionsof traditionalsociety and
able to accumulate personal wealth andpower to rival local kings, or even to
become kings themselves. Most of the new men were experiencedin European
ways,and oftensecuredfor their sonselementsof a Europeaneducation."
37 P. Amaury Talbot:ThePeoplcsofSoutheniNigeria, 19II.I. 680
38 For example.Antera Duke Ephraim (h'tiero Edem Efiom)of Calabar, was an Efik slave-tradingchief and
a seniorcmberof the Ekpe[hopardl Fraternity,the leadingEfiksecretsociety. He had receivcdEnglish
lessons, either from the schools. the European tradersor in England. He kept a valuablediaiy hm 1785-
1788(seebelow,Chapter5,Section E). The existenceof the diary showsthat longbefore the 19thcennuy
the Efiks were keepirlgrecords wriaen in pidgThiswaspresumablynecessary for commercial
purposes. Several published narratives fromthe early 19thwethe keeping ofaCC0Uand
journais bythe leadingEfiksof the time.C The Indi~enous Peoolesof the Coastlme of Old Calabar
4.11 The chieftribes in the regionof OldCalabarin theperiod after1700 were andare
theEfiks(abranch oftheIbibio,themselves sometimes classifieads a "semi-Bantu"
people3?, andthe Efiat (classifiedin the same way). This remains the position
in recent tirnes, as the NigerianEthnic Groups Surveymap of 1972 at Fig.4.1
shows. Thepredominantlocal people, intermsofnumbersandinfluence,were and
are theEfiks.
4.12 There are extensiveoral traditions as tothe early migrationsof the Efik people
before they came to Old Calabar, and these are discussedin some detail in A.K.
Hart, Report of the Enquis, into the Dispute over the Obongshipof Calabar,
published in 1964 by the GovernmentPrinter, Enugu, EasternNigeria." As
regardstheir subsequentimmigration intoOld Calabar and its environs,it seems
clear that there were at differenttirnes successive inliuxes of different tribal
group~.~~
4.13 Old Calabar appears to have been founded around the year 1400. From Old
Calabar Efik inûuence spread far and wide. Tradition has it that New Calabar,
some 150 kilometresto the West, wasfoundedaboutthe year 1650 by a member
of theEphraiimDuke familyfrom Old Calabar."
4.14 What is clear is thatby the eighteenthcentury, if not before,various Efik City
Stateshad emergedas the culminationof the southwardmovementof the Efik and
other peoplestowardsthe mouthof the Cross River?3
39P.AmauryTalbot,op.cit. 1926,Vol.IIp. 61
" SceChaprer4 of thatRepoatpp.24 et seq; a copyof theentireReporthasbeenlodgedwiththe Court.
E.E. Oku. ïhe Kingsand ChiefOidCalabarGladTidingsPress, 1989.pp.23-25.opyhasbeen
lodgedwiththeCourt.
42SeeOku,op.cir..p.xiii, ciunga qufromMaryKingsleyin 1899,recordedinEfionUkpongOid,
Calabarhroughthe Cennrries,Cal. opeWaddellPress.1967p. 43
Noah, Smiies inSouthentNigrrianHisfory,(1982)C4apterD. The Emer~ence ofthe Eilk hlitv
4.15 Over time the Efiks established themselves on the Coast and became active
fishermenand traders,ultimatelysettingup somethingof a sea-borneempire, with
City Statesup and downthe GuineaCoast fromthe NigerDeltato the Rio delRey,
and Settlementseven beyond. Many of their towns - Duke Town, Creek Town,
HenshawTown,ObutongTown - were clusteredtogether in theheart of the area
which becamelaiown as Old Calabar. This area includedother Efiksettlements
some of which were relativelyfar-flung,such as Tom Shott'sTown(west of the
CrossRiverat the mouthofthe estuary)andArsibon'sTown(Archibong)(nearthe
northem edgeof the BakassiPeninsula).The locationof theseTownsis shownon
Maps 14and 15in theAtlas.
4.16 The Efiks of this unique polity were govemedby a patriarchal "House" system,
under whicheach of the abovecornrnunitieswasheadedby its ownKingor Chief,
elected by that House." The mling oligarchywas united by a highly organised
secretSociety,the Ekpe Society,whichplayedan importantpartinthe religiousand
civiclife of thEfik polity and is still importanttoday." The local activitiesof
the Ekpe Societycentre on the PalaverHouse at Atabong (see paragraph 3.26
above).
4.17 Towardsthe end of the 18th century therewere thus severalpetty Kings inOld
Calabar. As Hart put it:
"Inteml strifeandnvalry intradebroughtaboutthe emergence in the
area oftwo dominant families, theEyoin Creek Townand the Duke
in Duke Town,headed by Eyo Honesty 1 and Great Duke Ephraim
respectively. It should, however,be noted that the paramountcyof
thesetwofamiliesintraditionalmatterwas onlyapparent, butnotreal
" A.K.Han o..cit. pp.45 et seq.
45 ibidpp. 52 et seq. .... The petty kings retainedtheir independenceand ruled overtheir
own Houses free from exteml interference. both Evo and Duke
Ephraim being still traditionally equal to the other family group
heads."&
4.18 Nevertheless,Hart acknowledgesthe gradua1emergence ofa paramountchieftaincy
or kingship at Old cal ab^.^^ The Efik polity evolvedquite rapidly in the course
of the 19th century. Great Duke Ephraim IV4 8 led at OId Calabar frorn 1814
to 1834. Ephraii IV appears to have been an authoritarianand dictatorial ruler,
reducing the number of "Houses" in Old Calabar from nearly 30 to 15, and
integratingmany of them into his own (Duke H)~use.~~Ephraim had a royalcourt
in which al1the seven clans of Old Calabar were represented, and his traditional
scribe was his cousin- an educated, rich and widely-travelledman."
4.19 Ephraim IV hadfull control of trade in Old Calabar and entrenchedhis position in
alliance with the European traders, so incumng the displeasure of neighbouring
settlementssuch as HenshawTown. The extentof his power and authority can be
seen from the fact that he refusedthe Europeans permission to settle on the Coast
or penetratethe hinterland, becausehe hadalready established flourishing markets
in various areas of the Cross River Basin such as Kipa, Enion, Agwagune,Ikot
Ana, Umon and Kiom." There he erected sheds at strategic points, collectedoil
from the neighbouringdistricts, and storedit at the shedsuntilcanoescould convey
ittoOld Calabar, whence it was shippedto England."
46 ibidp.70
47 ibidp.76
48 Bornin about1750, thispenon wasvariouslystyledAkwaDuke Ephr, kwaEfiomEdem andEfio
Edem Akamba.al1meaningGreatDuke Ephrai-:Oku,op.cit.p. 10
49 rbidp.13 andtheauthorittherecited.
" bid.p.23
Some oftheseareshow onMap14inthe Ath.
52 ibidp.144.20 The kmgs of Old Calabar were not absolutemonarchs, and none of them mled
withoutcounsellors. Theparamountchieftaii, or Obongship,emergedin modem
timesoperatinginconjunctionwith a "cabinet"or CouncilofEtuboms. An Etubom
is an Efik chiefof trank fromwhich theObongis selected: Etubomsare created
by the chiefsand membersof a Houseto adrninisterthat Hou~e.'~
E. TheGeomohical Extentof EnkRuleandTrade
4.21 Calabarwas(and is)the Efikmetropolis. In the 19thcenturyit wasalsothe major
port on the CoastbetweenLagos andDouala. By the 1880sOld Calabar and its
EfikHouseshad establishedtheir authority notjust overthe surroundingarea but
over al1the lands betweenthe Cross River and the Rio delRey. Al1these lands
were dominatedby the Efiks:seeAtlas Map 13, and, more generally,Chapter3.
4.22 By this period, the Ek had evolvedinto one of Africa's pre-eminent trading
peoples.For severalgenerationstheyhadbeen thechiefmediumthroughwhom the
Europeanshadtradedwith thenurneroustribesinhabitingtheriver-banksandinland
partsofthe CrossRiverbasin. Theirlanguagehadbecome the linguafmnca ofthe
Old Calabar and Cross River areas, their laws, customs and fashions had been
adopted by many of the up-river peoples," andthey hada virtual monopolyof
trade.
4.23 Efik influence had by such means come to permeate the spectrum of social,
economicandcultural lifenot onlyin south-eastemNigeriabut farintothe western
Cameroons, and the offshore islandsof what is now Equatorial G~inea.~~The
area subjecttothe direct mle of the Kingsand Chiefsof Old Calabar is shownin
the Ariusat Map 14. By virtue of the activitiesof the Houses of Old Calabar in
53 Han op.ciCt.apteXItoXHï andp.107
" SeeCharlesPamidgc.CrossRiverNatives, p. 32
55AjataAmos,FocuronSouthEancrnSrm ofNigerin.Lond1970,Vol1 No.1 foundii settlementsof increasingpermanence in the previouslyunsettled Bakassi
Peninsula, the dominionsof Old Calabar came to include the settlements inBakassi
specifically identified inChapt3.
F. EurooeanInfluencein the NineteenthCentury
4.24 The United Kingdom outlawedthe slavetrade in 1807, and other nations rapidly
followedsuit. In its opposition to the slavetrade, the United Kingdornanernpted
in 1807 to blockadethe WestAfrican coast, but thetrade continuedat OldCalabar,
to a limited extent, until1841, when British representatives signedanti-slavery
treaties with Duke Town and Creek Town.56 Since British shipping was
paramount inthe area, the rulers and merchantsofthe EfikCity Stateswereobliged
to adapt to the new conditions, whichthey did prirnariby offeringpalm oil asan
alternativeto slaves. Extensiveplantationslayto the Eastin the hinterland of the
main Efik settlementsin Duke Townand Creek Town,worked by slavelabour and
owned by the Kigs and Chiefsof Old Calabar. The growingcornmunitiesof Old
Calabar came to depend on these plantations for food.
4.25 By 1858 British and German missionanes and trading centres had been established
in a wide area of the WestAfrican coast, includingthe area from the Cross River
as far East as the towns which are now Victoria and Douala inCameroon. The
European traders had formed a Court ofEquity at Douala in 1856 to protect their
intere~ts.~An agreementwas signed in January 1860 between the British Consul
Hutchinson and King EyoHonesty III of Creek Town, to protect the interests of
British subjectstrading in the In May of the same year a sirnilaragreement
was signed betweenHutchinsonand KingArchibongII of Duke Town.
56DonaldSimmons,Sketchon theEfikPeople
57A.J.HLatham:Old Olhbar 1600-1891, Oxford,ClarenPress 1973p.137
58Oh op.cir.p714.26 The mid-nineteenthcentury saw the emergenceon the coast of Efik capitalist
enterprises,suchas the firmof HenshawBrothers. Europeanswerenowpermitted
to establishsettlementsashore, and in 1864the BritishWestAfrica Companywas
established.This was foliowedby Miller Brothersin 1868and the United Africa
Company in 1879. For commercial reasons, however, the Efiks remained
determined to exclude Europeans from their inland markets. Under no
circumstanceswould theypermit Europeanstojourney inland.
4.27 In the 1860sand 1870sthe economyof Old Calabar deterioratedmarkedly. The
area was still heaviiycommittedto the trade in palmoil and palmkemels, but the
boom conditionsof the precedingtwodecadeswere giving wayto the beginnings
of a recession.The trade in slaveshad finallycome to an end. The slaves were
now employedinternally on palm plantationsand food-producingfarms. Such
productioninvolvedfarlargernumbers ofpeoplethanhadpreviouslybeen involved
in the slavet~ade.'~
G. Colonial Activitieson the Guinea Coast
4.28 By 1884 the Britishhad for many decades been interestedin the West African
coast, including theCameroons. TheUnited Kingdomhad, as early as 1833,
refusedan offerby the indigenesto cede that part of the mainlandlying between
Bibia (nearpresent-dayVictoria,in Cameroon)andthe Riodel Rey. Instead,the
British Government from the 1830sonwardsentered into a series of treaties with
the kingsandchiefsin variouspartsof the GuineaCoast, includi the Cameroons.
Key British objectives inthis period were to encouragethe trade in palm oii and
ivory, and to end the traffic in slaves. Further informationabout Britishtreaty-
makingactivityalongthe GuineaCoastis providedin Chapter6.
59 CnmbniigeHi90ry ofAjiica, Vol.6 ppscq.Okuop. cii. pp. 82-844.29 In 1845, the first Bntish settlementin Cameroon was established, near Doualaon
the Cameroon River. The Court of Equity referredto at paragraph4.25 abovewas
establishedin 1856and presidedoverby the British Consul. In the 1860s.British
missionariesestablished the settlementofVictoria, but that senlementdid not enjoy
the forma1protection of the British Govemment.
4.30 Tothe West ofthe Niger, the British were,by the 1870s,establishedat Lagosand,
from 1874, the Gold Coast. Their traditional colonialrivals were the French, and
in this period the British feared French competition much more at Lagos than
further East along the Coast.
However,the threat to British commercialhegemony
on the Guinea Coastcame increasinglyfrom Germany rather than from France,@
althoughGermanywas not perceived in the1870sto have anysustainedinterest in
colonies.
4.31 In August 1879 five local kings in the Cameroons sent a lener to Queen Victoria
to say that they had spoken to the British Consulmany times about having "an
English Govemment"in the area, but had never had an answer:
"When we knew about Calabar River, how they have al1English laws
in their towns, and how they haveput awayal1their superstitions,oh,
we shall be very glad to be like Calabar Ri~er".~'
4.32 The British did not take up this idea. In the early 1880s.the Liberal Govemment
under Gladstone continued totum a deaf ear to WestAfrican requestsfor stronger
institutionalties with the UnitedKingdom. Britishpolicyon the Guinea Coastwas,
however,to changeshqly when Germany took Britain by surprise and established
a protectorateover Cameroon.
@ By 1883 Germanyconuolledsornethinglie half of al1WestAfricanmade.See AdalbenOwona: La
Naissancedu Cameroun1894-1914(1996)p. 27:a copyhasbeenlodgedwiththeCourt.
" Citedin1.Scott Keltie,ThePortifiAfncn. London.1873.atp. 197 THEHISTORICTITLEOFTHECITYSTATES
OFOLDCALABAR TOTHEBAKASSIPENINSULAA. Introduction
5.1 In very general terms, the City Statesof the Calabar regionwere, in pre-colonial
days,an acephalousfederation, the majorcitiesbeingDukeTown,CreekTownand
Old Town(Obutong). Inthe wordsof Dr. KannanK. Nair:
"The political systemof Calabar might be thoughtof as a federation
or conglomerationof loosely-knittowns. Each town was a political
unit with a temtorial basis, its head havingjurisdictionover his own
townor houseandrepresenting thefoundingancestorsofhisparticular
My. Each maintainedits ownadministrationand had the rightto
enforce sanctionon others. Both these factorspoint to thefact that
each of the towns was recognizedto be politicallyequivalent. The
relationsbetweenthe majortowns - DukeTown,CreekTownand Old
Town - were inthe order of inter-towndealings. Thus, they were in
their political relations similar to European nation States in the
eighteenthand nineteenthcenturies. Politicalpower wasultimately
residentin the segmentsrather than in a centralgovernment.
5.2 TheseCity Stateswerethe holdersof an originalor historictitie overthecitiesand
their dependencies,and the BakassiPeninsulawas for long a dependencyof Old
Calabar. It is this historictitle which the BritishCrown acknowledgin treaties
with the Kings and Chiefsof Old Calabar and it wasthis samehistoric titlewhich
subsisted under the umbrella of the Protectorateof Southem Nigeria created in
1906.
5.3 The originaltitle of the Kmgsand Chiefsof Old Calabarplaysa significantrole in
the processof historical consolidatiof title whichcodrmed Nigeria'stitie after
independencein 1961: see Chapter 10 below.
" K. K.Nair,PoliticsandSocietyin SouthEmem Nigeria1841-1906,Lo1972pp.2-35.4 On otder mapsthe estuaryof the CrossRiver is markedas the Old CalabarRiver.
The dispositionof thevarious City Statesand the relationshipwith the Bakassi
Peninsulacan be seen fromMap 13 in theAtlas.
B. The Political Indeoendence of the Citv States of Old Calabar
(i) The City Stateson AuthoritativeMaps
5.5 The historicalrecordvailableestablishesthat the independenceof the City States
of OldCalabardateshm the late seventeenthcentury.
5.6 Blaeu's famous atlas of 1662 includes a plate devoted to Guinea, on which
"Calbray" is marked. (Atlas, Map 16) Other maps of relevanceinclude the
following:
(1) Map prepared byN. Bellin, French RoyalHydrographer(1703-72), Carte
du Golfede Guinée (n.d.). (Atlas,Map 17)
(2) HermanMoll, Negrolanàand Guinea (part of Moll'sAtlasMinor, London
1729,and later editions).(Atlas,Map 18)
(3) Samuel Dunn, AfncaandItsSeveralRegions,LaurieandWhittle,1794(part
ofA NewAtlasof the Mundane@stem, London 1794).(Atlas,Map 19)
Bold,A CorrectedDraughtof Old CalabarRiverfromtheBreakersto Creek
(4)
Tm, circa 1822.(Atlas,Map20)
(5) John Bartholomew,DescriptiveHanàAtlas of the Wrld, A. Fullarton &
Co., Londonand Edinburgh,1871,Plate 19,Afnca (DukeTownismarked).
(Atlas, Map 21) (6) The ChurchMissionaryAth, 6th ed.,1879, p.36 : The Niger (Creek
Town,Old Town and DukeTownmarked). (Ath, Map 22)
(7) Map ofthe Cross River(OU Calabar),Proc. R.G.S., Vo1.12(1888).(Ath,
Map 13)
(ii) OtherExper Otpinion Evidence
5.7 Historicalatlases of African history indicateCalabar as a long-establishedpolity.
It appears on the relevantgraphic in Fage'sAtlas of Afncan History, which is
entitled "Africa as known to Europeansin the Mid-XVIiith Century" (Atlas,
Map 23). Similarly,the graphic showingthe nineteenthcentury picture includes
"Old Calabar" (Atlas, Map 24). It is clear that the author considers that Old
Calabarexisted inthe seventeenthcentury(Afh, Map 25).
5.8 The maps appearing in theHistoricalAth of Afnca by Ajayi and Crowderare
carefullycolour-codedand show "Africanpolities". "Calabar" indicatedas an
Africanpolity on the maps for 1850and 1884Ath, Map26).
5.9 The seventeenth centuryorigins of Old Calabar are confirmedby local historians
and genealogists. A helpfulsource, outmany ,s the accountof TheKingsand
Chi& of OId Calabar (1785-192 b5)Chief m.) Ekei Essien Oku, Calabar,
1989.63 The seventeenthcentury origin is also indicated by Kannan K. Nair,
Politicsand Sociefyin SouthEasternNigeria (paragraph5.1 above); and A.K.
Hart, Reportof the Enquiryinrothe Obongshipof Calabar.6"For a dating at the
'' ReferrtoinChapar4 abwe.
Seeparagra4.12 abwc. end of the fifteenth centursee Chief Eyo Okon Akak, Efik of Old Calabar,
Vol.IV,Calabar, 1983.65
(i) The Evidence ofTravellers
5.10 The regionof OldCalabarand itsCity Stateswasdescribedbya seriesoftravellers
in the course of the nineteenth century. The reports ofch travellerswhich
became mattersof record includethe f~llowing:~
C.H. Coulthurst, Journal of the Royal Geogmphical Society, 1832, Vol. 2,
pp.305-10.
R.K. Oldfield,Journalofthe RoyalGeogmphicalSociety, 1837,Vol.7, pp.195-8.
CaptainBecroftand J.B..King,Journalof the Royal GeogmphicalSociety, 1844,
Vol. 14,pp.260-83.
Captain James Broom Waiker,Journalof the Raynl GeogmphicalSociety, 1876,
Vol.20, pp.224-30.
Captain James Broom Walker,Journal of the AnthropologicalInstituteof Great
Britainand Ireland, 1877,Vol.6, pp.119-24.
Copies ofthesebookshavebeenlodgedwiththeCourt.
66 Copiesof eachof theserepornhavebeenboundtogetherandlodgedwiththeCourt.C The Recomition of the Inde~endence of the Citv States of Old Calabar in British
TreatvPractice
5.11 The political and legal personalityof the Kings andChiefs of Old Calabar were
recognisedin thetreaty-makingof the BritishCrown. Thus, in the period1823to
1884no fewer than seventeentreatieswere made betweenthe BritishGovernment
and theKing and Chiefsof Old Calabar.
5.12 The Inda of Briti Tsreaties1101-1968,published inthree volumesin 1970,lists
the following
Engagementof King of CALIBA(cession of Lemain Island), signed at
(1)
Lemain 14April 1823," (NC-M 1).
(2) Engagementof the King of CALEBApermittingBritish subjectsto cut and
heave Stonesand to make quarries on the mainland of Yani. Signed off
McCarthy'sIsland7 May 1827,@(NC-M2).
(3) Treatywith KingEyarnba. Signedat Old CalabarRiver 6 December 1841.
Parties: Greatritainand CALABAR,70 (NC-M 3).
(4) Agreement signedby KingArchibongof CALEBAR. Signedat DukeTown,
Calebar 28 May 1849,71(NC-M4).
67CliveParryand CharityHopkins(eds.), An IndexofBritish Trcatics1101-1968,3 vols., H.M.S.O., 1970;
Vol. 1, p.92. Copiesof these Treatiescan befoundin the TreatyVolumeof Annexes,NC-M 1 toNC-M
14 andNC-M21 toNC-M23.
63 BSP 1106; 14HCT942
6949 BSP 1124; 14HCT 960
7040 BSP908; 8 HCT 978
7138 BSP602; 8 HCT 58; 14Martens457 (5) Agreement betweenthe Chiefs of OLD CALABAR and the delegates of
slaves of the QUA PLANTATIONS. Signed at Duke's Town 15 February
1851. Parties: Great Britain, Old Calabar, slaves of Qua P~antations,~
(NC-M 5).
(6) Treaty with the Chiefsof Old Town, OLD CALABARfor the abolitionof
human sacrifice, the use of poison-nut and the practice of killing twin
children. Signedat Old Town 21 January 1856," (NC-M 6).
(7) Agreement with Duke Ephraim, King of Duke Town, OLD CALABAR.
Signed 17June 1856,14(NC-M 7).
Agreementbetweenthe Bntish supercargoesand the nativetraders of OLD
(8)
CALABAR. Signedat Old Calabar River 19 September1856>5(NC-M 8).
(9) Agreement with theThird Chief of Creek Town,OLD CALABAR,relative
tothe appointmentof a British consulto reside at FernandoPo. Signed 16
January 1860,'6(NC-M 9).
(10) Agreement with the Chiefsof Duke Town,OLD CALABAR,relativeto the
appointmentof a British consulto reside at Fernando Po. Signed at Duke
Town3 May 1860," (NC-M 10).
l241 BSP727;9 HCT23
l347 BSP555; 10HCT 33
l448 BSP906; 10HCT 685
l547 BSP 882; 1HCT 686
76 14HCT 966
14HCT 966 (11) Agreement withthe King and Chiefsof Creek Town, OLD CALABAR for
the abolition of substitutionary punishments. Signed 18 January 1861,'8
(NC-M 11).
(12) Agreementbetweenthe Britishand other supercargoesand the nativetraders
of OLD CALABAR. Signed at Old Calabar River 5 May 1862,'9
(NC-M 12).
(13) Agreement withthe King andChiefsof OLD CALABAR (Duke Town)for
the abolitionof substitutionarypunishments. Signedat OldCalabar26 April
1871," (NC-M 13).
(14) Treaty with the King and Chiefs of Creek Town, OLD CALABAR
(recognition of King, and ratification of former treSigned atOld
Calabar River 27 February 1874," (NC-M 14).
(15) Preliminary Treaty with Kigs and Chiefs of Creek Town, Old Calabar
River. Signed23 July 1884," (NC-M 21).
(16) PreliminaryTreatywith Kigs and Chiefsof Duke Town,OLD CALABAR.
Signedat Old Calabar River 24July 1884;' (NC-M 22).
(17) Treatywiththe King snd Chiefsof OLD CALABAR.Signed atOldCalabar
River 10September 1884. Accessions: Ef-8 September 1884;Idommbi-
9 September 1884,TomShot - 11 September1884,84(NC-M 23).
7855BSP182;11HCT31
7955BSP186;12HCT94
" 61BSP202;13HCT25
65BSP 118514HCT24
8217HCT i34
8317HCT 136
17HCT 1545.13 The last items on the liare important. TheKings and Chiefs of Old Calabar
concludedsuchtreaties asfull treaty partnersand did not, as a result of the treaty
as such, sufferanydiminutionof legalor politicalstatus. The legal consequences
of the treatiesof protectionl be examinedin Chapter 6,below.
D. Recomiitionin the Form of the A~oointment of Consuls
5.14 The practice of treaty-makingwas accompanied by the appointmentof consular
officers. In 1849John Beecroftwas appointedas Her Majesty's Consul to the
severalChiefson the coast of Africa, includingOld Calab:rsee theCommission
and Instructionsdate30 June 1849(NC-M 67). Theappointmentwasgazettedon
27 November1849:
"The Queenhas been pleasedto appointJohn Beecroft,Esq., to be Her
Majesty'sConsul in the Temtories on the coast of Africa lyingbetween
Cape St. Paul andCape St. John."=
5.15 The statusofOldCalabaranditscomponentCity Statesas independententitieswith
internationallegalpersonalityisofparticularsignificance ineproceedings.The
original title tothe BakassiPeninsulavested in OldCalabar and, in subsequent
political changes,his historic and original title hasprovidedthe benchmarkof a
titlefoundedupon regionalformsof legitimacy.
5.16 There is cogent evidence to the effect that, at al1 material times, the Bakassi
Peninsula was a dependencyof Old Calabar. The importantcontemporaryrecord
ri 1849LondoGazene3584(NC-M 68) of the 18"centuryEfikChief, Antera Duke, givesan accountof his visit to Aqua
BakasseyCreek, whichis clearly withinhis ownterritory."
5.17 The diary entry readsas follows(in materialpart):
"At 5 a.m. in Aqua BakasseyCreek; it was a fine moming and 1
arrived at Aqua Bakassey corral at 1 o'clock. 1 found Archibong
Duke and went alongsidehis canoe. 1took a bonle of beer to drink
with himand we called first atNew Townand stayedat the landing
and then went totown at 3 o'clock. We walkedup tothe palaver
houseto put the GrandEkpe in the houseand playedal1night."
5.18 TheJournaloftheRoyalGeogmphicalSociery,in 1872,printeda "Noteon theOld
Calabar and Cross Rivers" by Captain J.B. Waker. This containsthe following
passage:
"The Qua River has itnse inthe QuaMountains ...The smalltribes
of either bank - Efiat (Tom Shots), Usahadet (Bakasi), Idua (Ekri
Tobacco),Adon - are dependenciesof Calabar.""
5.19 The existenceof the sovereignauthorityof Old Calabarin the BakassiPeninsulais
confirmedby the studiesof E.O. Efiong-Fuller,a professionalgeographerteaching
at the Universityof Calabar: see,in particular, his work,TheSroryof Bnkcrrsi,
Calabar, 1996.=
86See DaryllForde(cd.Efik raderofOkiColabar. London.1956, p.27; TheDiary (1@Anrem
Duke.atp.43 (cnuyof 8 Febmary1786). A copyof this bookhasbeenlodgedwiththeCourt.
" JournaoltheRoyaGlcogrophiS caliety82.Vo1.16.pp.135atp.136:acopyof theanicleis includcd
inthe bundlof RoyalGeognpbicalSocietyJoumalslodgedwiththeCourt.
A copyof thisbookhasbeen lodgedwiththeCourt.E Conclusion
5.20 Theexistenceofthe City StatesofOldCalabarconstitutesthe foundationofa chain
of titlehich plays a significantrolein the present proceedings. For several
hundred years Old Calabar had hadboth a regionallegitimacyand an extemally
recognisedlegal personality. In the Chapters below the subsequentrole of the
onginal title of Old Calabarto Bakassiwill be developedfurther. CHAPïER6
THEPROTECTORATES6.1 In this Chapter and the three Chapters which follow,Nigeria will develop the
followinglegal argument:
(1) in 1884Germanyestablisheda Protectorateovercertainareasof whatis now
Cameroon(Chapter 6);
(2) in the neighbouringarea of Old Calabar the Kmgsand Chiefsat that tirne,
and for many years previously, possessedextemally recognised legal
personality(Chapter6);
(3) in 1884GreatBritain by Treatyestablisheda Protectorateoverthe Kingsand
Chiefsof Old Calabar(Chapter 6);
(4) under that ProtectorateTreaty Great Britain acquiredonly certain limited
powers, andin particular did not acquire sovereigntyover the territoriesof
those Kings andChiefs(Chapter6);
(5) Great Britain and Germany, as Protecting Powers over neighbounng
temtories, concluded variousagreements inand after 1885to delimittheir
respectivespheresof interest(Chapter7);
(6) Great Britainand Germany in1913concludeda Treatywhichpurportedto
transferthe Bakassi Peninsulato Germany(Chapter8);
(7) the BakassiPeninsuladid not belong toGreat Britain,which therefore could
not transferit to anotherState,and the relevantprovisionsofthe Treatyere
accordinglyineffectiveto bring about that transfe(Chapter8); (8) the 1913 Treaty accordingly did not alter swereignty over Bakassi, the
original titie towhich survivedthe Treaty,maintaininstarusquo ante
(Chapter8);
(9) notransferof sovereignty resulfromthe subsequenthistoryofthe Bakassi
Peninsulaup tothe Independenceof Nigeria in 1960,during which period
that area continuedbe under the authorityof the Kings andChiefsof Old
Calabar and of the Nigerian regional and local government system
(Chapter9).
B. Establishment of thGerman Protectorate in 1884
6.2 Bythe early 1880sBritish, GermanandFrenchrivalryin WestAfricahadacquired
considerable momentum (see Chapter). In particular,Germanywasbythen seen
as theprincipalcommercial threatto British interestsinthe area,andfromthe early
1880sbegan totakea great interestin acquiringterritorialinterestsin Theica.
Gem tradinghouse of Womann made a purelycommercial agreement withthe
Cameroonian King Akwa on 30 January 1883.
6.3 InApril 1884, Germanofficialaction on the WestAfricanCoastwas steppedup.
Dr Nachtigal,henGerman Consulat Tunis,wasappointedImperia]Commissioner
for West Africa. On 1 June 1884 he sailed for West Africa aboard a German
vesse],thMowe. On 11 July 1884the German Consulat Gabon, HerrSchulze,
who was also theagent for the Wormanntradinghouse, signeda treaty at Bibia
with the local chiefs, under which they made grants of their territory tothe
Wormann concem.
6.4 The Mowe amved at the CameroonRiverthat evening,and Nachtigal andSchulze
met. A fuaher agreement was quickly signed (on 12 July 1884) between the
German traders and King Deido. On the same day, the Mhe steamedup the CameroonRiver toBell Town and'Akwa Town,where an agreementwas signed
the same day by Kmgs Akwaand Bell (the two local chiefs of Douala), and the
representativeofthe Germantradinghouses,WormannandJantzen & Thormahlen
(NC-M 19).Underthat agreement,subjecttocertainreservations,KingsAkwaand
Bell assignedtheir rights of sovereignty,legislationand administrationover their
temtory to the two trading companies. The temtory of the two Kigs was
precisely identifiedas "the country called Cameroun situated alongthe River
Cameroon,betweenthe RiverBimbiain the Northand Kwakwain the South,and
up to 4" 10'North latitude". Thisdid not coverthe whole of Cameroon,but in
effectonly the areainhabitedby the peopleof Douala, whichwas the onlyarea
subjectto the authonty of the twoKings: theareadid not extendNorth beyondthe
parallel4" IO',nor beyondthe RiverBimbia, themouthof whichis approximately
at 3" 58'N (just tothe Northof the estuaiy of the CameroonRiver). Thus, the
whole of the area layell to the Southof the mouthof the Rio del Rey,which is
at approximately4"301N. Therelevantfeaturesare shownon Map27 in theAtlas.
6.5 The nextday,on 13July 1884,thetwoGermancompaniesconcluded an agreement
with the Imperia1 Commissioner(NC-M 2O)." Bythat agreement,the companies
transferredtheir nghts to the German Empire, and Germanyagreed toxtendits
protection tothe acquisitions made by the two companies and to extend its
suzeraintyover the territory of Cameroon. The Germanflagwas hoisted soon
aftenvards. German protectionover the temtones of KingAkwa and Bellwas
thereforestablisheby somewhatindirectmeans. Formally,the Germantrading
housesacquiredcertainrightsfromthetwoKings, andthentransferredthoserights
to Germany. Gennany in retum undertookto protect the rightsacquireby the
traders and toextend its suzeraintyover the territory of Cameroon(whichwas
somewhatmoreextensive termthan the strictlylimitedterritorialgrantmtothe
twocompanies: seeparagraph6.4 above).
89The text of this agreementand the agreementof 12 luly 18â4 (abovLoNaissancdeom
Cameroun1884-1914.Pari 1996.byAdalbenOwonwpy hasbeenlodgedwiththeCoun.6.6 On 19 July 1884 the BritishConsul, Hewett, arrived in the area. Next day he
registereda formal protest with Nachtigalat German activitieinan area whose
kings and chiefshad already fonned ties with Great Britain. However,Germany
paid littie attentionand movedrapidlyto establishits authorityin Cameroon. On
15 October 1884, Germanynotifiedthe major Europeanpowersand the USAthat '
Gemany had established a ProtectorateinKamerun(NC-M 18).
6.7 These wents establisheda signincantpart of the Cameroon territories aswhat in
Gennan law was known by the term Schutzgebiet,the formal meaningof which
comoted a protectedarea, but the significanceof whichas, in Germanlaw,close
to that ofa colony. By entering into an arrangement withthe local Cameroon
Rulers resulting in a significant part of Cameroon (Kamerun) becoming a
Schutzgebiet,Germanyacquiredjurisdictionin theRulers' territories.Thisopened
the wayfor their effectiveoccupationby Germany. In German law at the endof
the nineteenthcenturySchutzgebietwerefullyundertheauthontyofGermanyand,
in relation to foreigncountries, constitutedGerman temtory, althoughthey were
not part of the Imperial territory in the sense of the German constitutionand
legislation. This qualification uponthe quality of Schuhgebieteas fully German
territoryustifiedthe referenceto them, in English, as Protectorates,althoughtheir
actualstatusinvolveda muchcloserintegrationintothe ImperialReichthanwasthe
equivalentcase with, for example,BritishProtectorates.
6.8 On 23 January 1885 the British Lord Chancellor(Lord Selborne),writing to Sir
Julian Pauncefote, Permanent Under-Secretary of State at the Foreign Office,
showed his understandingof the German (and French) positionregardingtheu
temtones in Africa, and notedthat:
"..there is no substantial obstacletheir case,to their treatingthe
distinctionbetween Protectoratand amexationas purelynominal;so
that byProtectoratethey mean (as Sir TraversTwisssaid)annexation
under anothername." (NC-M69) Nevertheless, "Protectorate"was, at least initially,the term used to descnbe the
nature of Germany's interestin Cameroon,as is apparent from the termsin which
notice wasgiven that a BritishVice-Consulhad been appointed
"for the Temtones under the Protectorate of Germany, in the
Districtsof Cameroons, boundedon the Westby the Rio del R~Y."~
(NC-M70)
However,by the time of the conclusionof the Anglo-GermanAgreementof 14
April 1893, itwas consideredappropriateto referto the Riodel Reyas establishing
the boundary between the Oil Rivers Protectorate and "the Colony of the
Cameroons" (Article II).
6.9 Fiveparticularpointsare to be notedaboutthisGermanprotectorate,as announced
in the forma1communicationto certain EuropeanStates and theUSA in October
1884:
The protectoratehad a two-foldbasis - "Treaties whichhave been in part
(1)
concluded by Dr Nachtigal,the Consul-General dispatched to WestAfrica,
with independent Chiefs"and "partlyin vimie of applications for protection
made by Impenal [i.e. German] subjects,who haveacquiredcertain tracts
by covenants withindependent Chiefs" .
(2) The language clearly distinguished between "Treaties" made by the
representativeof Germanyand "covenants" made by German subjects:i.e.
there was no suggestionthat the latter agreementshad any international
status.
(3) .Boththe Treaties andthe covenants were made with "independent"Chiefs.
LondonGazene,5lune1885 (4) The language was that of protection, not acquisition of sovereignty: "has
taken certain districts of this Coastunder its protection", and "have been
placedunder the protection of His Majesty the Emperor".
(5) The extent of the temtory taken under German protection was, so far as
presently relevant, simply stated to be "Cameroonsn. The terms of the
agreementof 12July 1884with KingsBelland Akwa (above,paragraph6.4)
defined the area in terms which made it clear that it did not include al1of
present-dayCameroon.
6.10 It may also be noted that, notwitbstanding the establishment of the German
Protectorate over Cameroon, the British Consul continued for a short time to
convokeand preside over the Court of Equity at Douala referred in paragraphs
4.25 and 4.29 above -a Court which the British had establishedin Douala inthe
late 1850s by agreement between European traders and local mlers. Its function
was to resolve disputes between European traders (both British and Gennan) and
the indigenous people: in effect, the German traders had accepted this British
protection of theu interests. In July 1884 Dr Nachtigal soughtto undermine the
Court of Equity, but the British Consul (Hewett) and British traders and
missionaries refused to accept the virtual abolition of an institution setbyp
agreement. Eventuallythe German authoritiesin Cameroonabolished theCourt of
Equity by unilateral decision, paying noattentionto British protests. The incident
neverthelessdemonstratesthat Britishinfluenceonginally extendedintowhat is now
Cameroon, and did not end immediatelyupon the establishment by Germany of a
Protectorateover certain Cameroon temtories.
6.11 The natureof Germany's 1884ProtectorateoverCameroonsfell to be examined by
the Anglo-GermanMixed Arbitral Tribunalestablishedafter the First WorldWar:
see Nige r ompanyLtd. v.Gennan Sr~te.~~Before the war,a bill of exchange
91(1923Rec. T.A.M..VolIn. p. 232 had been drawn by the Residentof the German Protectorateof Kamerunupon the
kblonialhauptkasse(Principal Colonial Pay Office) at Berlin. The bill was in
favourof the Niger CompanyLtd. The bill was not receivedby the companyuntil
after the outbreakofwar and could not thereforbe sent to Berlin for payment: the
companycontinued to hold thebill. After theconclusionofthe Treatyof Versailles
the company soughtpayment from the German Goverment through the Clearing
Office establishedunder that Treaty. Germany contested the claim, interalia on
the ground that Kamerun possessed an independent legal personality, entirely
separatefrom the GermanImperia1Administration,and that, as it hadceased to be
German by virtue of Article 119of the Treaty of Versailles,its debts didnot form
part of the liabilitiesof Germany. The MixedArbitral Tribunalin effectupheld the
German Govemment'scontentions. It said:
"The administrative tutelage exercised for the Protectorate and
exemplified by the necessity for the budgetof the Protectorateto be
settledby the German Empire at Berlin does not excludethe separate
existenceof the Protectorate as a legal entity in private law, and with
regard to commercialmatters. This separateexistenceis exemplified,
interalia, by the German law of March 30th, 1892under Section V
of which it is providedthat the pecuniary liabilities arising fromthe
administrationof the Protectorateare to be covered only by the assets
of the Protectorate. This excludesany debt or liability of the Empire
with regard to transactions entered into by the officials of the
Protectorate.=
C Establishment of the British Protectorate in 1884
(i) General
6.12 In the 1880s, Bntain and Germany sought to establish and consolidate their
respective spheres of influence in the area, and in particular along the coastal
92.ibrdatp.236 stretches ofwhat are todayNigeria andCameroon. Tothat end, numeroustreaties
were enteredintobetweenthesecolonialpowersand native chiefs.Whilegenerally
these treaties are often referredto as "treatiesof protection" or "protectorate
treaties",heir true legal significancecan only be establishedby a carefulreading
of their terms.In particular, itis importantto distinguishbetweenthe notionof
protectorate asreflectin the interna1law of the Stateexercisingthe protectorate
(e.g. the German conceptof Schutzgebiet (above,paragraph 6.7) and the British
concept of a "protectorate"below,paragraph 6.72 et seq.))and the equivalent
notion in international law govemed by the terms of the treaty by which the
protectorateasestablished(below,paragraph 6.38 et seq.).
6.13 For the UnitedKigdom, a series of suchtreatieswas concludedbetween19 July
and 10 September 1884, coveringthe suetchofcoastfromOldCalabarin the West
to Victoria, some 60 miles along the coast to the East. These treaties were
concludedby or under the authorityof the British Consul, EdwardHewen. He
reportedon these varioustreaties, copiesof whichhe sent back toLondon, in his
despatchof 24 September 1884 toLord Gran~ille.~'
6.14 In relation tothe Bakassi Peninsula, the directly relevant treaties are those
concluded withthe Kings andChiefsof Old Calabar in July andSeptember 1884.
Theyformenclosures 2and 4 to ConsulHewen'sdespatchof 24 September 1884.
For conveniencethey are reproduced separatelas NC-M 72.
(ii)Internationai personaiity of pre-1884 Old Caiabar and its component City
States
6.15 Before(and after) 1884 an effectivesystemof govemment existed inthe regionof
Old Calabar,based on the acknowledgedrole of the traditionalrulers.
Thetex8of thedespatch.andofenclosurareatNC-M 71.6.16 Generally,pre-colonialAfrica did notconsistof the type of European nationStates
existingwithin fixedborders. Rather, there were a number of empires, emirates
and kingdomsin manyareas of the Continent, eachof whichwasa governmentin
its own right with sovereignpowers. This was the case in Nigeria. In the North
there were the Sultanof Sokotoand Emin (suchas the Fulani-KanuriEmpiresor
Emirates)as well as variousother potentatesof the middleand lowerNiger, with
sovereignpowers. In the Southern areas there were the Yorubalandand Benin
Empires (wherethe Obas reigned)as well as, along the coastalareas, what were
in effecta number of City States. These constituted theindigenousgovernmental
systemin pre-colonialNigeria. The Sultan,Emirs, Obas, Kings andChiefsof Old
Calabarand other traditionalmlers weretemtonal mlers. The Europeanimperial
powers usedthe concept of "protectorate" asthe legal basis for much of their
activity inAfrica, acquiring protectorateson the basis of treaties of protection
between themselvesandthe Kingsand Chiefsof the protectedlands. This system
effectivelymet the EuropeanPowers' needs for a degree of control in "their"
protectorates whichexcludedthat of theirrivals, while atthe sametime leavingin
place the localauthorityof the Kings and Chiefswithimtheir temtories.
6.17 The traditional mling classwas a recognisedfeature of the pre-colonialNigerian
reality. Theexactnumberofthesepre-colonial Empires, Kingdoms,Caliphatesand
autonomous communitiescannoteasily be determined,and varied from period to
period. Furthermore,the size,characterandformofthesetraditionalpoliticalunits
werenot uniform. Some wereas largeandpopulousas someAfncan Statestoday,
while theinfiuenceand activitiesof otherswere limited. The Kings and Chiefs of
Old Calabar, however,constituteda very powerfulpolity wielding considerable
influence andauthority,extendingevento Victoriain Carneroon. Duringthe pre-
colonial period, these traditional authoritiesexercisedcomplete sovereignpower
overtheir peopleand temtory. In some pre-colonialsocieties, politicalpowerwaS
centralisedin the officeof the traditionalruler while inothers itwas dispersedto
a varietyof smallerunits.6.18 It is important to emphasisethat duringthe precolonial periodan effectivesystem
of govemmentof the abovekind was in operationin the region. This was why,
when EuropeanPowersand their agents(includingpublic and privatecommercial
enterprises) sought to establish themselveson the shores of West Africa, they
negotiated andenteredintotreatiesof friendship, protectionandcommercewiththe
relevantTraditional Rulers. Alongthe coast of Nigeria suchtreatieswereentered
intowiththe City States,and similar treatieswereenteredintowiththe Obas inthe
Yorubalandand Benin Empires. In Northem Nigeriaby 1888some 235 treaties
had been enteredinto.
6.19 The International Courtof Justicehas accepted that whereterritoriesare inhabited
by tribes or peopleshavinga socialandpoliticalorganization,thosetemtories are
not terraulliusbut are rathertemtories overwhichthelocalrulershaveauthority,
and anyacquisitionofrightsoveror inrelation to thoseterritoriesmustderivefrom
agreements withthose local rulers: seeAdvisoryOpinionon WesternS~ham.~
6.20 Chapter 5 of this Counter-Memonalhas notedthe extensivetreaty-makingpowers
exercisedby the Kings and Chiefsof Old Calabar: this power extendedto the
conclusionof the Treatyof Protectionof 10September1884(NC-M 23). As has
been said:
"it does seem that theconclusionof treaties of protectionconstitutes
a recognition of personality both of the ruler and of the people
concerned and thereforeeiiinates the possibility of the area in
questionking considered ares n~llius":~
6.21 The internationalnghts and obligations which thelocalrulers in WestAfricawere
generally regarded by European Powersas possessingincluded sovereigntyover
temtory. Thusthe Agreementof 6 September 1878 betweenthe British Consul(on
behalf of Her Majesty'sGovemment)and KingArchibongIII (NC-M 15)and his
94ICJReports1975.atp.39,para80
95 Shaw,ïitlc to TemtinAfica: Intemotiokgal Issue(1986)p. 37 Chiefsconcerningtrade and commerceand certain other matters asserted, in the
preamble,
"thatthe King willcauseat once to be madeknownthroughoutal1the
land wherehe chim sovereigtuy,eitherby the beatingof Egbo Dm
or othereffectivemethod,the followingarticles.." (emphasisadded).
6.22 In the particular caseof OldCalabar, Article 1of the Treatyof Protectionof 10
September1884(NC-M23)expressly prescribed the scopo efthe British protection
being granted by the Treatyby referenceto "the temtory under their [Le. the
Ku@' and Chiefs'] authorityand jurisdiction", thus clearly acknowledgingtheir
possessionof temtorial rights. Moreover,the authorityof the Kigs and Chiefs
over theu temtories was demonstratedby their rejection in the draft Treaty of
Protectionpresentedto them of an ArticleVI whichprovidedthat:
"the subjectsandcitizensof al1countriesmayfreelycarry on trade in
everypart oftheterritoriesofthe Kings and Chiefspartieshereto,and
mayhave housesand factoriestherein" (emphasisadded).
6.23 Althoughthe Kings andChiefs signed theTreaty,they expressly did not agree to
thatArticle.Their successin protectingtheir inlandareasfromforeign commercial
encroachmentshowsthat they had - and wererecognised by European tradersand
theirgovernrnents ashaving - effectivetemtorial controinthose areas, equimlent
to that whichtodayamounts to territorialsovereignty.
6.24 in consideringthe status of localRulers in West Africa over a century ago it is
importantnot to apply terms and conceptswhich, while current today,would be
anachronisticif appliedto the circumstancesof those times in that region. Those
circurnstancesmustbe evaluatedin the lightof the lawas it stood atthe tim- the principle of the "inter-temporallaw" enunciated in the Island of Palmas Case,%
where the Arbitrator (Huber) said that:
"... a juridical fact must be appreciated in the light of the law
contemporary with it, and notof the law in force at the time when a
dispute in regard to it arises or falls to be settled".
6.25 The principle has been acted upon by the International Court in several cases.
Wnting in 195397 Sir Gerald Fitzmaurice was able to Say (dating the full
acceptanceof the nile from its enunciatioin the IslandofPalmas Case):
"lt canow be regardedas an establishedprinciple of internationallaw
that insuch cases the situationin questionmust beappraised, and the
trealy interpreted, in the lightof the niles of internationallaw as they
existed atthe time, and not as they exist todayUg8
6.26 Considered in that light, it is clear from what has been said in Chapter5 and
preceding paragraphs inthis Chapter that the local Rulers in West Africa were
generally regarded by the European powers as having rights and obligations in
internationallaw, includingtreaty-makingpowersand sovereigntyover territory.
(iü) The Mties of 23-24 Julyand10September1884betweenGreatBritainand
OldCalabarandits Component City States
6.27 By the end of the eighteenthcentury,three major tradingtownshad emerged in the
area of the Old Calabar River -Creek Town, Duke Town(which became knwn
as Old Calabar, and later the present day Calabar), and Obutong(also known as
Old Town) - each with itsown Ruler: other trading towns, such as HenshawTown
and King Qua Town, also existedat that time (Atlas,Map 13).
% 19282 R.I.A.A. 82ap. 845
YJBYBIL,Vol.30 (1953p.1
CollectcdPope(1986)p. 1356.28 The British Consul (Hewett)negotiateda nurnber of treaties with local rulers
throughoutthe region,includingthosewithOldCalabarandits componententities.
These treaties, itshouldbe remarked,were not draftedon the spotby the British
Consul duringthe courseof his negotiations with loclilers. Theywere basedon
draftswhichhadbeen carefullypreparedinLondon,andwith which the Consuh lad
been provided to use as "model" drafts in his negotiations: see below,
paragraphs6.49 -6.51.
6.29 These negotiationswere farfrom a formality. Thus the refusalof the Kings and
Chiefsof Old Calabartoaccept ArticleVI of the "model"draft has already been
noted (paragraph6.23). The British Consul's explanationsof the difficultieshe
encounteredin negotiatingthe ProtectionTreaties (below,paragraph 6.30), and
manuscript amendrnentswrittenin tothe printed"model"draftwhichwasthebasis
for British discussionswith the localKings and Chiefs,showthat there werereal
negotiationswith independent localrulers negotiatingat am's lengthevenwith so
strong a Europeanpoweras GreatBritainwas at the time. And where they were
not sure what they were being asked toagree to, theydid not hesitatetodemand
explanationsand reassurance,as in July 1884when KingJa Ja of Opoboasked the
BritishConsulaboutthe meaningof "protection" asthatterm wasused in the draft
treaty (seeparagraph6.59 below).
6.30 Indeed, the negotiating difficultsacedby the British Consul (Hewettw) ere such
that with some localrulers he had to take things in stages, firstconcluding
preiimii treaties, and later returning toconclude full treaties of protection.
Writingof the difficultywhichhe had in makingtreatieswith theKings andChiefs
in his district, the BritishConsul continued:
"1do not despau of obtainingtheir assent to al1the Articles which
appear in the printed form supplied to me by your Lordship's
direction, butit requiresso much time to explainand argue out, and
for the Kmgs and Chiefsto consider arnongthemselves theseveral
points, tha1 havebeen obligedto contentmyselfin most cases with what1havecalled a PreliminaryTreaty. ThisembracesoniyArticles
1,II, and M of the printed form, which appearedto be of the first
importance. 1 intend revisitingby and by the places wherethese
Preliminary Treatieshavebeen signed,and makingother Treatiesto
include them and as manymoreof the Articlesof the printedfonn, as
1 cm:" (Desparchof 30 July 1884 to the Secretary of State for
Foreign Affairs," NC-M 73)
6.31 The first of the Old Calabar ProtectorateTreatiesto be concludedby the British
Consul was the PreliminaryTreatywiththe Kings and Chiefsof Creek Town,Old
CalabarRiver, signedon 23 July 1884(NC-M21). It wasconcludedbetween,on
the one hand, the Kmgsand Chiefsof CreekTown,Old CalabarRiver,and, onthe
other, Her Majestythe Queenof the UnitedKingdomof GreatBritainandIreland,
Empressof India, &c, representedby LieutenantMoore, theCommanderof HMS
Goshuwk. It states that the parties, "being desirous of maintaining and
strengtheningthe relations of peace and friendship which have so long existed
betweenthem", "haveagreed uponand concluded thefollowingArticlesn. There
followonly twoArticles of substance(Article IIIsimply stipulatesthat the Treaty
is to comeintooperationfromthe dateof itssignature). Article1records that there
had beena "requestof the Kings, Chiefs, and people of CreekTown,Old Calabar
River" and that Her Majestythe Queen "incompliancewiththe request ...hereby
undertakes to extend to them, and the temtory under theu authority and
jurisdiction, hec gracious favourand protection". By Article IIthe Kigs and
Chiefs agreedto refrain from entering into any correspondence,Agreementor
treaty with any foreign nationof Power,except withthe knowledgeand sanction
of the BritisGovernment. A similarPreliminaryTreatywas concluded thenext
day by the British Consul(Hewett)on behalf of Her Majestywith King Duke IV
of Duke Town, "in compliance with the wishof the Kings, Chiefs and people"
(NC-M22).
- -
99 F.O.Confidcntl ri5021.pp.27-86.32 The second, and final, treatyin theesent contexwas the Treatyof Protection
with the Kings and Chiefsof Old Calabar, concluded on 10 September 1884
(NC-M23). Againthe parties were theBritish Queen(representedby the British
Consul, Hewett) and the Kuigs and Chiefs of Old Calabar, apparently a
compendious nameforthe variouskingsandchiefsin the areaofthe CalabarRiver.
The purpose of the Treaty was the same as that of the Preliminary Treaty
(NC-M21) signed nearlytwo months earlier, and the firsttwo Articles, and the
final "entry into operation" Article,were in substance identicalwithf that
earlier Treaty. The SeptemberTreaty,however,ontainedsix additionalArticles.
These concerned thereservation of civil and crimiil jurisdiction over British
subjectsto British authorities (ArIIIl)ettlementof disputes (ArtiIV) ,he
obligationsof the Kings and Chiefsto assistthe BritishConsular authorities,and
to act on theirviceon a rangeof specifiedmatters(ArticleV), freedomof trade
in the temtories of the Kings andChiefs(Article -but this provisionwas not
agreed by the Kmgs and Chiefs: see above, paragraphs 6.22-6.23), religious
freedom (ArticleVII), andshipwrecks(ArticleWI). ThisTreatyof 10September
1884did not say anythingregardingits relationship with thePreliminaryTreaties
concludedtwomonthsearlier. Itis probablyimplicitthat the Prelimimry Treaties
were supersededby thelater Treaty, giventhat Creek Townand Duke Townwere
parties and that their two substantiveArticles were repeatedi imthe later
Treaty,whichwent on to add a series of additional Articles. Hewett, in reporting
the conclusionof theeries of WestAfrican treatiesconcluded betweenJuly and
September 1884 (NC-M 71), referred to Old Calabar having 'signed the full
Treaty',hus indicating that thePreliminaryTreaties just a firststep,pending
the conclusionof aullertreaty in due course.
6.33 The Treatyof 10September1884wasconcluded withthe Kingsand Chiefsof Old
Calabar. There were, in addition, anumber of Kigs and Chiefs inneighbouring
areaswho weresubjecttotheauthorityof theKingsandChiefsof OldCalabar,and
who therefore could not themselves becomediict parties tothe Treatyof 10
September 1884. Inordertoensurethattheytoo werebroughtwithinthe scopeof that Treaty, each of them made a Declaration, in substantially identicalterms,
stating that they "are subject to the authority and jurisdiction of the Kigs and
Chiefs of Old Calabar", that they "cannot, therefore, make any Treaty with a
foreignPowerfor ourselves",but that "anyTreatythe saidKigs and Chiefsof Old
Calabar havemade, or may hereafter make, is, and will be, binding on us". Such
Declarationswere made on, respectively,11,8 and 9 September 1884 by the King
and Chiefs of Tom Shot, the Kig and Chiefsof Efut, and the King and Chiefsof
Idommbi (texts of the Declarations are set out in NC-M23). In reporting these
Declarationsto Lord Granville(who at the time was Secretaryof State for Foreign
Affairs), togetherwith the text of t1884 Treaty itself, Hewen referredto them
in the following terms: "The Chiefs of Tom Shot country, of Efur, the country
about the Rio del Rey, and of Idombi, the country about the River Rumby,made
declarationsthat they were subjeto Old Calabar" (emphasissupplied). It will be
noted that the River Rurnbyis a river well to the East of Bakassi.us clearly,
quite apart from the direct impact of the Treatyupon Bakassiby virtue of Bakassi
being within the domains of the Kingsand Chiefsof OIdCalabar, the Treatyalso,
by virtue of the Declaration of the King and Chiefsof Efut, covered the Efut
country "aboutthe Rio delRey" (whichwaterway,of course, is on the eastem side
of the Bakassipeninsula), as well as temtory even further to the East.
6.34 As a result of the the Declarations, therefore, the Treaty10fSeptember 1884
applied tothe temtories of the King and Chiefs of Old Calabar, including, as
temtones under their "authority and jurisdiction", the territoriesof the Kings and
Chiefs of Tom Shot, Efut, and Idommbi. The general area of these temtones is
indicatedon Map 28 in the Ar&.
6.35 Contemporaneous evidence of the extent of Old Calabar, and in particular its
inclusion of the Bakassi Peninsula, is availablein the reports of the British Consul
(Hewett) in September 1884, and of the later Consul (Johnston) in1890. In a
memorandumsent withhis despatchof 27 September 1884 to the Secretaryof State
for Foreign Affairs,Hewett includedthe following passage: "OldCalabar:- This countrywith itsdependenciesextendsfrom Tom
Shots(which liesimmediatelytothe eastwardof Qua Ibo)to the River
Rumby (on the west of Cameroon Mountains), bothinclu~ive."'~
(NC-M74)
6.36 In a lettetothe ForeignOfficedated 23 October1890,Johnstonstated:
"Originally[i.e. in 1884,whentheProtection treatieswereconcluded]
the rule of the Old Calabar Chiefsextendedfar beyondthe Akpayafé
River to the very base of the Cameroons,but the Calabar race (the
Efi keople) andianguageonly went as far east as the right bank of
the NdianRiver.
The trade and rule of the Old Calabar Chiefs extended, in 1887,
considerablyfurtherto the eastthanthe NdianRiver,as did the scope
ofour Treatieswith ChiefYellowDuke andothers, but as the Ndian
wasthe mostimportantafiiuentof the Riodel Reyestuary,and about
midwaybetweenthe extremeeastem and westernfeedersof that inlet,
1 drew the true boundary between Calabar and Cameroons at the
Ndian, and advised thealabarChiefsto content themselveswith that
Iimit.
The left or eastem bank of the Akpayaféand the land between that
river and the Ndianis under the rule of Asibonor ArchibongEdem
III,a big Chief of Old Calabar, who is the legitimateheir to the
Throne of Old Calabar ...
At my advice the Old Calabar Chiefs retiredfrom the occupationof
districts east of the Ndian, and withdrewtheir claims for damages
againstthe GermanGovemment for thereallyundeserveddestruction
of their settlementsand the disposalof their followers. Toyield mer
more of their temtory, and this tirnetheir mal, undoubtedtemtoto
the Germans, would create, firstly, a very angry feeling in Old
Calabar; and, secondiy,a Gennan party among the Efik Chief~."'~'
(NC-M 75)
lu, F.OConfidentilrintNo.5033. pp.79-80
'O' F.O. onfidentlrintNo.6146, p. 122:emphasisadded It is apparent that Bakassi was not peripheral to the domains of the Kings and
Chiefsof Old Calabar,but waspart of their heartlands.
(iv) The effectothe 1884Agreementof Protection: establishment afProtectorate
6.37 It is central to theproperunderstaof the Treatyof 10Septembe1884 to note
thatit was a TreatyestablishingBritish protectionover the temtories in question,
and not a treaty purporting to acquire territorial sovereigntyor other title over
them. Although thelocal Rulers had, by virtue of their sovereigntyover their
temtories, the power in internationaltowcede territorial sovereigntyto Great
Britain (seebove, paragraphs6.19and 6.26) t,ey did not exercise thatpower.
They grantedto GreatBntain only the more limitedrights of protection,so as to
make themselvesa British Protectorate. An Article providingfor the cession of
their temtory when requestby Great Britainwas omittedfrom the Treaty they
signed(seebelow,paragraphs6.49-6.51)
(a) The notion of a "~rotectorate"or "~rotectedState" was at that time. and is now.
wellknownin internationallaw
6.38 For these purposes the two terms "protectorate"and "protected State"are largely
synonymous. Article34of the General Act ofthe Conferenceof Berlin, signedon
26 February1885,I providedthat:
"LaPuissance quidorénavant prendra possesd'unterritoiresurles
côtes du Continent Africain situé en dehorsde ses possessions
actuelles.ou qui, n'en ayantpas eujusque-là,viendraitacquérir,
et de même laPuissance qui yassumera unProtectorat,accompagnera
l'acte respectif d'une Notification adresséeaux autres Puissances
'" BFSP ,ol.6(1884-188P.4 Signatairesdu présentActe,afinde les mettreàmême de fairevaloir,
s'il y a lieu, leursréclamation".
This language acknowledges that there was a distinction between acquiring
"possessions"and assuminga "Protectorate",that this distinctionwasapplicableon
the coastsof the African continent,and that EuropeanPowersmight in that region
have only a Protectorate. As with the lessformal establishmentof spheres of
influence(seebelow,paragraphs 7.8 -7.10). so too Protectorateswere notcreated
primarily for the purpose of acquiring temtory (for whichcolonial annexation
wouldhavebeen appropriate)but ratheras a wayof preventingother States from
extending their interests (usually commercial) into the territory over which the
Protectoratewasestablished (seealsobelow, paragraphs6.47 -6.49).
6.39 As to the international positionof protectorates (to usethe term most commonly
used inthiscontext) thelegal, social,economic,culturaland politicalcircumstances
of each "protectorate"variedgreatly. Sotoo - consequentially -did the natureand
contentof the arrangementswhereby theprotectoratewascreated.
"An arrangement may be entered into whereby one state, while
retainingto someextentits separateidentityas a state, is subjectto a
kind of guardianshipby another state. The circumstancesin which
this occursand the consequences which resultvary from caseto case,
and dependupontheparticularprovisionsofthe mangement between
the two states concemed ... Protectorateis, however,a conception
which lacks exact legalprecision, as its real meaningdepends very
much upon the special case ... The positionwithinthe international
community of a state under protection is defined by the treaty of
protection which enurneratesthe reciprocal rights and duties of the
protecting and the protected states. Each case must thereforebe
treated accordiig to itsown merits ...But it is characteristic of a
protectorate that the protected statewayshas, andretains, for some
purposes, a positionof itsownas an internationalpersonanda subject
of internationallaw".lm
103 Oppenheim'sInrernatiol aw.Vol1,9thcd., 1992.pp.267, 268. 2696.40 The international positionof Protectoratesvolvestwo essential elements. First,
beforetheProtectoratecomesintoking thereis in existencean internationalperson
havinglegal personalityin internationallaw; second, that personcornesunder the
protectionof (withoutbeing absorbed into)another Stateby virtue (usually)of a
treatyor agreementbetweenitself andthe otherState. Bothelementsweresatisfied
in relationo the Kingsand Chiefsof Old Calabar.
6.41 The Permanent Courtof InternationalJusticehad occasionto considerthe statusof
protectoratesin internationalwin itsAdvisoryOpinionon NationalityDecreesin
Tunisand Moroc~o.'~ In that case the Court, in considering questionsof
cornpetence to legislate on matters of nationality, treated theprotectorates in
question ('Iiinisand Morocco)as separatefrom the protecting Stateitself, and not
as mere portionsof the latter (at pp.27, 28).
6.42 TheInternationalCourtofJustice addressedtheissue intheCaseConceming Rights
of Nationalsof the United Statesof Arnericain Morocco.'" In that case the
issuesbeforethe Courtconcerned thediscriminatorycharacterofcertainMoroccan
decreesand the extentof United Statesjurisdictionin Moroccopursuantto various
earlier treaties. Relevantto those issues, and in particular the obligation upon
France and Morocco to guaranteecommercialor economicequality in Morocco,
was the staais of Morocco as a French Protectorate. That Protectorate wds
estabiishedby the Treatyof Fez 1912.1mThe Courtheld that:
"The establishmentof the French Protectorateover Morocco by the
Treaty of Mmh 30th. 1912, betweenFrance and Morocco, did not
involve any modification in this respect" [Le. in respect of the
requirementof 'equalityoftreatment incommercialmatters'in certain
earlier treatiesconcludedy Morocco,and notably theGeneral Act of
Algecirasof 7 April 19061(at p. 184);
lw 1923,PCU ,erB.No.4
ICIReports1952,p. 176
lm ICIPleadings,MoroccoCQFC(FmncevUSA)Vol.1.p. 650 "It is not disputed by the FrenchGovenunentthat Morocco, even
under the Protectorate, has retained its personaiity as a State in
internationailaw. The rightsof Francein Moroccoare definedbythe
ProtectorateTreatyof 1912." (atp. 185);
[in consideringthe treaties whichdetermined theextentof the nghts
of the United Statesrelatingto consularjurisdiction]"Thethirdgroup
of treatiesconcernedthe establishmentofthe Protectorate.It included
the agreements which preceded the assumption by France of a
protectorateoverMorocco,andthe Treatyof Fez of 1912. Underthis
Treaty, Morocco remained a sovereign State but it made an
arrangementof a contractual characterwherebyFrance undertookto
exercise certain sovereign powers in the name and on behalf of
Morocco, and, in principle, al1 of the international relations of
Morocco. France, in the exerciseof this function, is bound not only
by the provisions of the Treaty of Fez, but also by al1 treaty
obligationsto which Moroccohadbeen subjectbeforethe Protectorate
and which have not since then been terminated or suspended by
arrangementwith the interestedStates." (atp. 188).
6.43 It is apparentfromthesepassagesthat:
(1) before theestablishmentof the Protectorate, Morocco was an international
person and entered as such into treaties with other States: the Judgment
referredto such treaties concludedby Morocco in the 17th, 18thand 19th
centurie^;"'^
(2) the Treaty of Fez (1912) establishingthe Protectoratewas a true treaty in
internationallawbetween twointernationalpersons,Franceand Morocco;
(3) France'srightsandobligationsunder the ProtectorateTreaty were extensive;
(4) notwithstandingthe extentof the rightsand obligationsconferredon France
by the 1912Treaty,Moroccocontinued to be an internationalpersonduring
the currencyof the Protectorate upto at least 1952 (thedate of the Court's
'O7 At,forexample.pp. 187. 1seealsoPleadings.Vol.1,pp.417-564 judgment)and.in factuntil 1956(when the Protectorateterminated upon the
independenceof Morocco);
the internationalnghts and obligationsof Moroccocontinuedto existunder
(5)
the Protectorate, althoughby the terms of the Treatyof Fez they were,on
the international plane,xercisedby France.
6.44 Moreover,in considering the natureof a protectorateit must be recalled that the
relationshipwhich it establishesbetweenthe protectingStateand the protecteState
is one of "protection"of the lattby the former. Asexpressedin the firstedition
of Oppenheim'sInternational Law (1905)in introducingdiscussionof Statesunder
protection,
"Generally speaking, protectorate may ... be called a kind of
international guardianrhip (at p. 138). [Substantially the same
language has been used in al1subsequenteditions, up toand including
the 9thed., 1992,at p. 267.1
It was a means for "furthering the moraland material well-beingof the native
population", which was one of the concernsexpressed inthe GeneralAct of the
Conferenceof Berlin of 26 Febmary 188510( 8see below,paragraph 8.50). This
givesto the positionof the protectingStatea strong fiduciary character:its duty is
to act in support of, and not against, the interestsof the protectState,and to
refrainfrom taking for itself any advantagefrom the relationship withoutmaking
the protectedState fully aware of what was being done in the protectionof its
interests. The relationshipinvolvesstrong considerationsof trust and good faith.
'"BFSP.Vol. 76 (1884-1885p.4 (b) The distinctionbetweenthe acauisitionof sovereientvand the establishmentof a
Protectoratewaswellknownto the BritishGovernment atthe the
6.45 In the 1880s there was much debate in Britishcircles about the possibility of
annexingparts of West AfnM and formallyacquiringsovereigntyover them. In
part these discussionsoriginatedfrom requestsby local Rulers that Great Britain
should annex their temtories. Thus (see paragraph4.32 above)in theearly 1880s
the BritishPrime Minister (Gladstone)rejectedWestAfricanrequests forstronger
institutionallinks withGreat Britainand politelydeclinedto annex localtemtory
when requested to do so by King BellHonestyof Douala (in 1881)and by King
A. (in November 1881). Sirnilarly,in 1883 the supportersof Prince James
Eyambacomplainedtothe ForeignOffice in Londonaboutthe barbaritiesof the
Ki, and requested,unsuccessfully,that Britainannex thetemtory. Suggestions
that Britain shouldannex the lands in theregion had the support of the British
Consul (Hewett);he wanted toforestallthe French (whohad already established
themselvesat Porto Nuovoin 1883, were beginningto rival the Britishin the Oil
Rivers District and the Niger Delta, and were evengetting neartoLagos) and
favouredthe annexationof the whole coast from Cameroon to Benin. Sodid
British trading interests,aring that Francewas aimimgat temtorial annexations
both near Lagos and nearBig Batanga below Douala. Although the British
Consul'swish to see the entire coast annexedwasnot accededto, the pressureon
the British Governmentfrom various quarters to take some action to forestall
French aspirationsin the area mountedsteadily. Annexationwas not agreedupon,
but the British Cabinetdid decide, by the end of 1883,to strengthenthe consular
administrationin Calabarand to send the British Consulto visitthe coastalchiefs,
ta- withhim a draftmode1treaty by whichtheycould obtain Britishprotection
(paragraph6.28 above,and paragraphs6.49-6.51below). In the event,as hasbeen
seenabove,it wasthe developmentof Germaninterests in neighbouring Carneroon
which provided the practical spur to the conclusionof the various protectorate
treaties.6.46 It is clear from the interBritishGovemmentpapersof the the that the British
Governent was well awareof the distinctionixtween protectionand sovereignty,
and consciously chose to opt for the morelimited "protection"agreementand to
avoid any acquisitionof sovereignty. The nature of a Protectoratewas correctly
and clearly acknowledged in 1883by Sir Edward Hertslet, the Librarian of the
ForeignOffice(whowasused withinthe ForeignOfficeas an expen on mattersof
internationalaw at a tirnewhen the ForeignOfficedid not haveits own full-time
staff of lawyers). In responseto certain questionsput to him in writinby T.V.
Lister (AssistantUnder Secretary of State,Foreign Office, in charge of African
Mirs), Hertsletstated:
"A Protectorateimpliesan obligationon the pan of a powerful State
to protect and defend a weaker State againstits enemies, in all, or
certain specifiedeventualitie... The usual form of establishinga
Protectorateisby the conclusionof a treaty,either between the more
powerful Statewhichhas undertakento defendor protectthe weaker
one, and the weakerstateitself, or betweenthe protectingPowerand
other Powers,relatingto suchprotection."lo(NC-M 76).
6.47 The questionof exercisingvariousdegreesof authorityin Africantemtofies within
the British sphereof interestwas consideredby the British Cabinetduring 1883.
On 23 November 1883 Cabinet decided upon a policy of not acceptingoffers of
cessionsof temtory on the Bightsof Benin and Biafrabut of concludimgtreatiesof
protectioninstead. In a memorandumdated 27 February 1884, H.P. Anderson
(SeniorClerk in the ForeignOffice)describedthe Cabinetdecisionthus:
"No progress has yet ken made as to the policy approved by the
Committee of the Cabinet, though the details are ready. It was
decided, as1understand,that theCameroonsdistrictwasto be placed
under British protectionon certainconditions;thatTreatieswereto be
concluded with theChiefsat the mouthsof the Niger andon the Oil
Rivers which would prevent themfrom placing themselvesunder
foreign protection, to the detriment of British trade; and that an
'O9F.O . omïdentil rintNo.4825, p. 7 effectiveConsularestablishmentwas tobe organkd tosupervisethe
executionof the Treatiesand protectour commerce.""O (NC-M77).
6.48 It seems that the ForeignOfficewished toaccept "to a limitedextent" offers of
cessionmade by certainKmgsand Chiefsin the Carneroons and that the "Treaties"
for thisurposewere tobe drawnup by the ColonialOffice. On 5 January 1884,
the Colonial Office(R. H. Meade, AssistantUnder Secretary of State, Colonial
Office)wrote to the ForeignOffice(SirJ.Pauncefote):
"3. Lord Granville[Secretary of State for Foreign Affairs]will
remember thatit wasrecommendedby the Committeeof the Cabinet
which considered the question that there should be no attempt at
present tocreate a new British Colony or Settlement, with al1 the
necessarilyexpensivemachinetyof govement, but that the districts
tobe taken over should continue for thepresent under such control
and supervision as the Consul for the ightsof Beninand Biafracan
exerciseby means of visits paid as frequently ascircumstancesmay
permit." (NC-M78)
Meade thenstatedthat there wouldbeobjections toacceptingcessions,inparticular
in respectof the slavtrade. He continued:
"9. The most convenientcourse would seem to be that the
Chiefs should, atal1eventsfor the present,be left tomanagetheir
own affairs, and that they should receivefrequent visits from the
Consul,whoshould be authorisedtoinquireinto andsettleanymatters
whichhe mightfindtobe indispute.
10. As the principal object which it is sought toobtain by
acquiringjurisdictionat theCarneroonsis theexclusionofthe French,
it appearstoLordDerby [Secretaryof Statefor the Colonies] thatthis
mightbe sufficientlyeffectedby makinga Treatywith the Kings and
Chiefs, guaranteeing to them the favour andprotection of Her
Majesty'sGovernment,and takingfromthem an engagementtocede
toHer Majesty, whenever required to do so, so much of their
temtories as she mayconsiderit necessaryor desirabletoacquire.
"O F.O.ConfidentilriNo. 5004PP.33-34 This would get over the immediate difficulty of making British
temtory land which we are not at present prepared to occupy or
govem, and would at the same time render its acquisitioneasy if at
some future time circumstancesshould make it advisable. Al1the
objectswhichHer Majesty'sGovernmenthavein viewinregardto the
Cameroonswouldthusbe attainedwithoutincurringanyofthe serious
inconveniencesalreadymentioned.
A draft of such a Treaty as is proposed is inclosed, for Lord
Granville'sinformation,and the useof your Department."
6.49 The "Draftof TreatywithKingsand Chiefsof the Cameroons"sent withMeade's
letter to the Foreign Office, was in substantially thesame fortn as that later
concludedon 10September 1884 with theKigs and Chiefsof OldCalabar,which
is discussedbelow. There was, however,an important provision inthe Colonial
Officedraft for the Cameroonswhich was not included in the treaty eventually
signedwith Old Calabar. The draftproposedby Meade in January 1884 contained
an Article IIas follows:
"In return for the benefitsaccordedto themby Article 1, the Kis
and Chiefsof the Cameroonsherebyundertaketo cedeto Her Majesty
the Queen of Great Britain and Ireland, etc., whenevershe may cal1
upon themto do so, so much of their temtory as she mayconsiderit
necessaryor desirable to acquire in order tofacilitate theobjectsof
this Treaty."
6.50 By a letter dated16 May 1884, the Secretaryof State for ForeignAffairs, Earl
Granville,with theconcurrenceof the Secretaryof State forColonialAffairs,Lord
Derby, instructedthe British Consul,Hewen, to rake the necessary stepsto enter
into agreements with"the variousnativeChiefs". It is clear that theChiefs were
regarded as having the cight to refuse, andthus were regardedas having equal
bargainingpower,sincethe instructions,signedby T.V.Lister, stated:
"You should explain to them that you have special instructionsto
expressto them the desireof Her Majestyto maintainand strengthen
the relations of peace and friendship which have for a long time existed; you should statethG[Her Majesty] is williifrequested,to
extend to them her favourand protection on condition that they give
such guarantees as shall be considered satisfactory for the livesand
property of British subjects, and for the freedom of commercial
intercourse and religious worship." (emphasis added)(NC-M 79).
6.51 Attached to the instructions of 16 May 1884was a "Draft of a Treaty with the
Kigs and Chiefs of ..."to be used as a model for the agreements to be made.
This draf wtas simiilarto that sent in respect of the Cameroons by the Colonial
Office to the Foreign Office in January 1884though significantly it lacked the
Article II. cited above(paragraph6.49), of the Cameroons draft. Artic1of the
May draft, like Article 1of the January draft prepared forCameroons, read (ibid.,
p. 58):
"Her Majesty the Queen of Great Britain and Ireland, etc., in
compliance with the requestof the Kings and Chiefs, and people of
.., hereby undertakes to extend to them, and to the territory under
their authority andjurisdiction, Her graciousfavourand protection."
6.52 This text thus indicated that (i) the Kings and Chiefshad voluntarily sought the
agreement; and (ii) the agreementwas to be one of protection, not of a~exation.
6.53 ArticleIIof the model draft of 16May 1884read:
"The Kings and Chiefs of ...agree and promise to refrain from
entering intoany correspondence, Agreement, or Treaty with any
foreign nation or Power except with the knowledge andsanction of
Her BritannicMajesty'sGovernment."
6.54 This text thus indicatedthat Great Britain acknowledgedthat the Kings andChiefs
were still capable of entering not only into a mere "Agreement" but also into a
"Treaty" with "any" foreign "nation" or "Power", whichnecessarily implied that
the British Government recognisedthe Kings andChiefs as actors at the level of
internationallaw.6.55 On 3 January 1885, less thansix months after the conclusionof the Treaty of
Protectionwith the Kmgsand Chiefsof Old Calabar,the British Lord Chancellor
(Lord Selborne) wrote anote, in whichhe referredto a draft report of the Law
Officersof the Crownconcerning"theformalitiesto be obsemedin orderto render
funireoccupationson the Coastof Africa effective". In that notehe said:
"The Law Officersdo not expresslyadvertto the distinction,which 1
thinkimportant(and whichappears tome to be wellelucidatedby Sir
E. Hertslet's memorandum of the 24th April 1883). between
annexationsand Protectorates. Annexationis the direct assumptionof
temtorial sovereignty. Protectorateis the recognitionof the right of
the aboriginal,or other actualinhabitants,to their owncountry,with
no furtherassumptionof temtorial nghts thanis necessaryto maintain
the pararnount authority and discharge the duties of the protecting
Power." (NC-M 80)
6.56 Later that same month, on 23 January 1885, Lord Selbornewrote to Sir Julian
Pauncefote, Permanent Under-Secretary of State at the Foreign Office, about
Germanand French activitiesin Africa, statingthat
"...there is no substantialobstacle,in their case, totheir treatingthe
distinctionbetween Protectorate andannexationas purely nominal; so
thatby Protectoratethey mean (as Sir Travers Twisssaid)annexation
under anothernarne. Butit is otherwisewith us, andthatfor reasons,
some of which are of peculiar force in Africa. If we annexed any
temto~y in Africa, the immediateconsequencemust be that, in that
temtory, slaves, must at oncecease to exist." (NC-M69)
6.57 This legaldistinctionwasneverabandonedinBritish practice. Evenon thelastday
of British authoritin respectof Nigeria- 30 September1960 - the Protectorateof
Nigeria, as distinct from the Colonyof Lagos, was Britishprotectedtemtory, not
British temtory, and those born in it were British ProtectedPersons, not British
subjects.
6.58 The British Consulin the region (Hewett),as negotiatorof the severaltreaties of
protection,was well awareof the difference between the acquisitionof sovereignty and the grant of protection. This is, for example, apparent from his
contemporaneousdespatch toLord Granvilleof 28 July 1884,reportingthat he had
"annexedto the dominionsof [the Crown]" the settlementat AmboisesBay (more
usually referredtoas Ambas Bay). The actual Noticeeffecting the annexationwas
entitled"Assumptionof Sovereigntyover the Settlement at Amboises Bay, West
Coast of Africa" and its body statedthat "thetemtory ...has nowbeen taken over
by Her Majesty the Queen of Great Britainand Ireland, and forms an integralpart
of her dominions" (text at NC-M 81). Siilarly, Great Britain proclaimedthe
takingpossessionof Lagoson 4 August 1861,and thecessionof the Port and Island
of Lagos was confirmed by the Treatyof 6 August 1861between Great Britainand
the King of Lagos."' That ceded settlementbecame a separate British colony in
1886,112 known first as the Colony of Lagos and, after the Letters Patent of 28
February 1906, as the Colony of Southern Nigeria, describedas the "Island of
Lagosand suchportions of the neighbouringtemtories as havebeen annexedto our
dominions"."' But Great Britain also over a period acquired rights of protection
over temtories in the neighbourhoodof, but outside, the limitsof the settlementof
Lagos. Those outer temtories were designated as the separate Lagos Protectorate
in 1885(and weresubsequently absorbed into the Protectorateof SouthernNigeria
in 1906). The distinctionbetweenthe Colony andProtectorateof Lagoswas made
clear in the Lagos ProtectorateOrders in Council 1899and 1901, which defined
the Protectorate in such a way as expressly to exclude "that portion of Her
Majesty'sdominionswhich isknown as the Colony of Lagos".
6.59 Hewetthimself explained therestricted nature of a protectorate. He had submitted
one of the standarddrafts to King Ja Ja of Opobo, in the Niger Delta. On 1 July
1884 the King had asked him for clarificationof the word "protection" in Article
1of the draft treaty. Hewettreplied:
11' Henslet'sCommerciaiTreariVol.11pp.41. 42
ibidVol.17,p.113
113 ibrdVol .4.p.147 "1write, as you request, with referenceto the word 'protectorate'as
usedin the proposedtreaty that theQueendws not wantto takeyour
country or markets, but at thesame time is anxious that no other
nation should takethem. She under[takes]to extend her gracious
favourand protection,which will leaveyour country still under your
Govenirnent." (NC-M82)
6.60 Throughout the discussionswhich led to the conclusionof the 1884 Treaty of
Protection, andin that Treaty itself. it is evident that the languageused was
consistently that of protection, and not that ofnnexation and acquisition of
sovereignty,with which it stands in marked contrast. This distinctionwas
maintaineduntilthe independenceofNigeriain 1960,andwasconsistentlyreflected
in British Ordersin Council(wherethey applied tothe twodifferent categoriesof
temtory in the Southemparts of the country)y their separatedesignation as"the
Colony andProtectorateof Southem Nigeria" or "the Colonyand Protectorateof
Nigeria" (see further below,paragraph6.68 (1- (10)).
(v) The substantivecontent of the1884 Protectorate
6.61 "Protectorate"is not a concept with a single substantive contentwhich can be
applied generally to al1 Protectorates. The legal nature of any particular
Protectoratedependsupon theterms by which theProtectoratewasestablished.
6.62 In the Tunisand MoroccoNationality Decrees case (PCIJ, Ser. B, No. 4) the
Pement Court said:
"The extent of the powersof a protectingState in the territoryof a
protected State dependsfirst,uponthe Treatiesbetweentheprotecting
State and the protected State establishing the Protectorate, and,
secondly,upon theconditionsunder whichthe Protectorate has been
recognised by thirdPowers as againstwhom there is an intentionto
rely on the provisionsof these TreatieIn spiteof commonfeatures
possessed by Protectorates under international law, they have
individuallegal characteristicsresulting from thepecial conditions under which theywere created, and thestageof their development."
(at p.7)
See also above,paragraph6.39.
6.63 Theessential"protectorate"provisionsofthe Treatyo10 September1884with the
Kings and ChiefsofOld Calabar (NC-M 23)are as follows:
"MCLE 1. Her Majestythe Queenof Great Britain andIreland,
&c, in compliancewith the requestof the Kings, Chiefs,and people
of Old Calabar, hereby undertakes to extend to them, and to the
temtory undertheirauthorityandjurisdiction,her graciousfavourand
protection.
AKïICLE 2. TheKings andChiefsof OldCalabaragreeandpromise
torefrain from entering into any correspondence, Agreement,or
Treaty withany foreign nationor Power,exceptwith the knowledge
and sanctionof Her BritannicMajesty'sGovernment."
6.64 Five featuresof theseprovisionsmaybe noted.
(1) First, they record that theprotection arrangementswere the result of a
request from the Kigs and Chiefsof Old Calabar. A similarrequesthad
been recorded in thereliminaryTreatyconcludedwith CreekTownon 23
July 1884,while the Preliminary Treaty concluded withDuke Townhad
stated thatprotectionwas being given "in compliance with thewish of the
Kings, Chiefs and people" (above, paragraph 6.31). This was no mere
formal recital. The instructionsgiven to the British Consul(Hewett)to
negotiate thevariousprotectionagreements stipulathat he wastoexpress
Britain's willingness,if requested, to extend its protection (above,
paragraph6.50). And as already seen, there had been several previous
requests by local mlers tosecure British protection, and even annexation
(above,paragraph6.45). Thishasbeen acknowledgedby Carneroon, which
in its Memorial cites with approvalan extract from the pleadings in the
NorrhernCameroonscasewhichbegins "Thelocalmlers [inthe Cameroons coastai strip] requested formal Bntish protection on various occasions
n 114
....
(2) Second,the protection arrangements clearly involved"an arrangementof a
contractual chara~ter".~~~Indeed, specifically, they were brought into
effectby a treaty, the international contractual arrangemeptar excellence.
The 1884 Treaty of Protection was expressly described as a "Treaty"in
ArticleIX, and was consistentlyregarded by the Bntish Governmentas a
treaty.Thus on 17January 1885the Secretaryof Statefor ForeignAffairs,
Lord Granville, wroteto the British Ministern Madridasking him to point
out to the SpanishGovemmentthat the Bntish Government "by Trearies
concluded withthe native Chiefs" had "assumed the Protectorateover the
whole Coastfrom AmbasBayto the RiverBenin inclusive,comprisingOld
Calabar and the lower portion of the Cross River" (emphasis supplied)
(NC-M83); this notificationwas duly passed to the Spanish Ministerof
ForeignAffairson 30January 1885 (NC-M84). Similarly,in the noticeof
5 June 1885 proclaimihg the British Protectorateof the Niger Districts
(NC-M-70). it was recited that "By virtue of certain Treariesconcluded
between the month of July last and the present date, and by other lawful
means, the territorieson the WestCoastof Afnca, hereinafterreferred toas
the Niger Districts,were placed under the Protectorateof Her Majestythe
Queen hm the date of the said Treariesrespectively" (see below,
paragraph 6.66: emphasisadded).
(3) Third, Article 1 does not provide for Great Britain to exercise the
international relationsof theigs and Chiefsof Old Calabar,or othenvise
act. in their nameand on their behalf.
"4MC, 2.07
"'>ICIRepow 1952,atp.188.quofcdaboveinparagrap6.42 (4) Fourth,Article 2does not providethat theKings andChiefshavegivenup
their right and power to have dealings (including making Treaties and
Agreements)with foreign States, but thathey will do so only afteraving
first infomed the British Government andobtained its approval(above,
paragraphs 6.53-6.54).
Fifth,it must also be borne in mindthatby virtue of the Treatyconcluded
(5)
in September 1884 together with the the contemporaneousunilateral
declarationsby Kings and Chiefswho were subjectto the authority of the
Kings and Chiefsof Old Calabar,the geographicalextentof the Protectorate
arrangementsestablishedby the 1884Treatyincludedthe areaof the Bakassi
Peninsula(see paragraphs6.33-6.36 above).
Thus, the Kings and Chiefs of Old Calabar retained, afterthe conclusionof the
6.65
TreatyofProtectionin 1884, theirseparateinternationalstamsandrights,including
their power to enter into relationships withother intemationalrsons, although
under the Treaty that power could only be exercised with the knowledgeand
apprml of the British Government. Thap tosition,in its essentials,did not change
before theconclusionof the March 1913 Anglo-GermanTreaty;nor indeeddid it
change in substanceuntil Nigeria becamean independent Statein 1960.
6.66 Following the conclusion of the 1884 Treaty of Protection, Great Britain by
proclamationestablished the"BritishProtectorateof the Niger district^"."^The
proclamationrecited that "By virtue of certain Treaties concludedbetween the
month of July last and the present date,and by other lawful means," British
protectorateshadbeen established.It wenton to bringtogether inone Protectorate
theMnous territoriescovered by the individualtreatiesof protectionand lying"on
the lineofCoastbetweenthe BritishProtectorateof Lagos andthe rightor western nver-bank of the mouthof the Rio del Rey",together withcertain inlandareas to
the North. It thus includedthe BakassiPeninsula.
6.67 During the samepenod (and principallyin the penod from Octoberto December
1884 theNationalAfricanCompany Ltd .oncluded"treaties"withnumerouslocal
nilers,y which themlers typically "ceded"their temtones to the Company. In
1886 ,RoyalCharterwas grantedto the Company(whosenamewaschangedlater
to The RoyalNiger Company,Chmred and Lunited). This Companycontinued,
although less frequently,the practice of concluding agreementswith localmlers.
It isto be notedthat, sinceneither theNationalAfncanComLtdynor theRoyal
Niger Companywas an internationalerson, terms suchas "treaty"and "cessionn
in their agreementswith local nilers do nothe meaningwhich they havein
intemationallaw. They did not havethe powerto conclude "treaties"or to hold
sovereignty overtemtory "ceded" to them, or to exercisegovemmentalrights as
understoodin internationallaw.
6.68 Afterthe1885Order in Council, furtherProclamationsor Ordersin Council from
time to timened the name by whichthe Protectoratewas known, its territonal
limitsand the arrangementsfor its govemance. Thus:
(1) On 18 October1887Il (7 C-M 85) the British Protectorateof the Niger
Districtsasexpandedto includeal1the territoriesin the Basinof the Niger
and itsluents which wereadministeredbythe RoyalNiger Company.
(2) At some time before1891 the term "OilRivers Protectorate"entered into
use. Thepreciseextentof that Protectorateand its relationshipto the British
Protectorateof the Niger Dismcts not clear, butit certainlyincludedthe
eastem portionof theCoastof that Protectorateup to the Anglo-German
Il7LondonGnrcnc.21Ocwbe1887p.5651 boundaryandincludedOldCalabarandBakassi:in CommandPaper C9372,
at p. 36, it said:
"The Oil Rivers are the Benin, Escarvos, Warri,Forcados,
Brass, St Nicholas, St Barbara, St Bartholemew,Sombrero,
NewCalabar,Bonny,Andorio,(StAntonio),Opobo,QuoIbo,
Akpayafi, Qua, Cross, and Old Calabar." (NC-M86)
(3) In 1893'18(NC-M 87) part of the British Protectorateof the NigerDistricts
was constituted a separate Protectorate, under the name "Niger Coast
Protectorate", andeased to be knownas the "OilRiversProtectorate". The
eastern limit of the Niger Coast Protectoratewas expressed as the limit
definedin the Anglo-GermanAgreementof 14April 1893 (NC-M 28).
(4) At the end of 1899the Charter of the RoyaiNiger Companywas revoked,
and the RoyalNiger CompanyAct 1899was passed. The preamblerecired
that "it [was]proposedto transferto the Crown theadministrativepowersof
thesaid Company,and the benefit of the treaties made by the Company".
Sincethe Crowndid nottherebyacquireanygreaterrightsthat theCompany
had itself possessed, thisrecital needs to be understood inthe light of the
commentsmade in paragraph6.67 above.
On 1 January 1900119 (NC-M 88), the Northern Nigeria Order in Council
(5)
1899and the SouthernNigeria Order inCouncil 1899cameinto force. By
the first Order, temtories formerly administered by the Royal Niger
Company within a definedarea were constitutedinto "Northern Nigeria".
By the second Order, certain of the temtories formerlyadministereby the
RoyalNiger Company were added to the Niger Coast Protectorateto form
lL8LondonGazene,16 May 1893p.2835
lL9Won Gazene,5 lanuar1900.pp.69-73 the "Protectorateof Southem Nigeria". This latter Protectorateincluded
Bakassi. Its easternboundarywasdefinedin part as
"a linecomrnencingon the Coastof the Gulf of Guineaat the
mouth of the Rio del ReyCreek, the nght bank of which it
followsto the head of the Creek,...".
It appearsthat itwas in thosetwoOrdersin Councilthat the term "Nigeria"
was used for the first time in forma1officia1British instruments. It was
probablya conglomeratename inventedfor administrativeconvenience.
(6) The positionreached by that stagewassummarised by the Chancellorof the
Exchequer, Sir M. Hicks-Beach, in introducingthe Ordersin Councilbefore
a Committeeof the House of Commons. Havingreferred inpassingto the
"German sphereof influenceat theCameroons". He saidthat
"...withinthis regionof Afnca threedifferentkindsof British
administrationwere established. First, there was the Colony
of Lagos under the controlof the Colonial Office;secondly,
there was the Niger CoastProtectorate under the Foreign
Office; and, thirdly, there was the Royal Niger Company,
subject only, as far as Her Majesty's Govemment were
concemed, to the very slight control 1 have stated to the
Comrnittee."lm (NC-M 89)
He later added:
"For the present, and until a healthysite for a capital be
selected and better means of communicationprovided, the
temtones will be divided for administratieurposesintothree
divisions, al1under the controlof the Colonial Office. One
division will be in Lagos, with its presentarea; the next will
be SouthernNigeria,composedofthe NigerCoast Protectorate
and part of the Niger Company'stemtories, nearly half as
ParliamenroryDebates (Commom,thseries. V73.cols.1290-129(3 lul1899) largeagainas now;and thethird,NorthemNigeria, composed
of therest of the company'stemtories, includingBorgu and
Ilorin, boundedon the south by a line drawn fromDahomey
along the 9th parallel of latitude to Idda on the Niger, and
thence following the same diction to the Anglo-German
frontier"Iz1(NC-M 89)
(7) The Southem Nigeria ProtectorateOrder in Council 1906 (NC-37). which
applied to "the temtories of Africa which are boundedon the...north and
north-eastby the British Protectoraof Northem Nigeria, andonthe east by
the frontier between the Britishand German temtories" had the effect of
incorporatingintothe Protectorateof SouthemNigeriatheterritorieshitherto
withinthe Lagos Protectorate.
The SouthemNigeria Protectorate Order in Councii 1911(NC-M44) made
(8)
new arrangements for thegovernanceof the SouthernNigeria Protectorate,
principallyby combining theexerciseof certain functionsin respect of the
Protectorate withhose of the Colony of Southem Nigeria (Le. the former
Colony of Lagos: see above, paragraph 6.58). The Order nevertheless
maintained the distinction between the Colony and Protectorate, and
continuedto definethe territories of the Protectorasebeing "bounded ...
on the east by the frontier between the British and German temtories"
(Articleïï).
(9) By Letters Patent issued on 29 November1913(NC-M 90) the Colonyof
SouthernNigeria wds in futuretobe known as the ColonyofNigeria. Atthe
sametirnethe NigeriaBoundariesOrder (NC-M48) definedthat Colonyof
Nigeriaby a perimeterline, and annexedto itany territorieswithinthe line
which were nothithertoincludedin Her Majesty'sdominions.
lZ'ibidc..ls1.298-1299 (10) The NigeriaProtectorateOrder inCouncil 1913 wasmade on 22 November
1913 (NC-M47) and cameinto forceon 1 January1914. Thus it wasboth
made, and entered into force, afterthe Anglo-GennanTreatyof 11 March
1913.~ concluded. The Order amalgamatedthe Protectoratesof Nonhern
and Southern Nigenaintoone Protectorate,under the narne "Pmtectorateof
Nigeria",defined inpart as the
"territoriesof Afnca which are boundedon the south by the
Atlantic Ocean...and on the easby the frontierbetweenthe
Britishand theGermantemtories",
butexcludingfrom the territorial scope of the Protectorate theColonyof Nigeria
(Le. the former Colonyof Lagos). Boththe Order and theLettersPatent provided
that the term "Nigeria", used without qualification, meant the Colony and
Protectorateof Nigeriathusconfirmingthe distinctionbetweenthe twoconcepts).
6.69 Thus, at the time the Anglo-Geman Treatyof 11March 1913 wasconcluded,
(1) the relevantBritish-pmtectedtemtory borderingthe Coastalongthis part of
WestAfrica wasthe British Protectoratof SouthernNigeria;
the BakassiPeninsulawaspart ofthat Protectoraby virtueof the definition
(2)
ofitseasternboundaryas beingthe rightbank of the Riodel Rey- Southern
NigeriaOder in Council 1899 (above,paragraph6.68 (5)). Thereafter,no
Anglo-Gennan agreement changed the boundary in this respect, so that
equally no change resultedfrom the subsequentdefinition of the eastern
boundaryof the Protectorate in theSouthern NigenaProtectorateOrder in
Council 1906 as beiig "the frontier between the British and German
temtories" (above,paragraph6.68 (7)); (3) accordiily, the easternbo&d;uy of theProtectorate as itstoodirnmediately
before the conclusionof the Treatyof 11 March 1913was as shown on
Map 29 in theAth.
6.70 Upon thesubsequentamalgamationof the Protectoratesof Northern and Southern
Nigeria into theProtectorateof Nigeria, witheffectfrom1January 1914,the sarne
languagefor the definitionof the easternboundaryof the Protectoratewasadopted
(above,paragraph6.68 (10)).
6.71 Thus, by the variousstagesoutlinedabove,the constitutional relationshipbetween
Great Britain and Old Calabar and other temtories in the area of what is now
! Nigeria from 1884 to 1913 remained (despite some evolution in matters of
l
administrativedetail, and apart from thesmallareaswhichwerespecifically made
colonies)one of Protectorate,governed(in the case of OldCalabar) by the terms
of the Treaty of Protectionof 10 September 1884,and subjectto the limitations
imposed by it. During that periodthe rights and obligationsof the Kings and
Chiefsof Old Calabarcontinuedto exist, includingtheir rightsoverBakassi. The
fact thaturingthat penod the interna1administrativepracticeof Great Britain, as
the ProtectingState,was to refer increasinglyto "Nigeria" as aseparateunit of
administration,maniksting itselfdifferently inthe variousareas of "Nigeria"(e.g.
Colonyof Nigeria, Pmtectoratesof SouthernNigeriaandof NorthernNigeria)does
not detract from the essential nature of the relationship, forinternationallaw
purposes,as one flowingfromthe 1884Treatyof ProtectionbetweenGreatBritain
and the Kings andChiefsof Old Calabar.
(vi) The law of the UnitedKigdom as tothe statu5 of BritishProtectorates
6.72 Great Britain had a well-developedpractice of acquiring sovereigntyover some
overseas temtories (thereby makimgthem part of the Crown's dominions, as
colonies) and of establishing "Pmtectorates"over others (thereby making them British Protected Statesor Protectorates, but leavingthem still in law essentially
foreign States). The distinction was apparent in the constitutional arrangements
made for the govemance of the various temtories. In the last quarterof the
nineteenth century, the British Govemment administered its overseas interests
throughthe ColonialOffice(inthe case of colonies),the ForeignOffice(inthe case
of protectorates, because of their "foreign" status), and the India Office(inthe
specialcase of India). Legally,the govemmentof Colonies, as part of the Crown's
dominions, was in principle and until replaced by some statutory arrangement, a
matter regulated by Orders inCouncil made in exerciseof the prerogativepowers
of the Crown. The govemmentof Protected Statesand Protectorates, on the other
hand, wasregulatedby Ordersin Councilmadeunder powersgrantedby successive
Foreign Jurisdiction Acts, the first enacted in 1843 and substantively'" the last
in 1890.
6.73 The Foreign Jurisdiction Act 1843 (NC-M 91) was enacted because doubts had
arisen as to the Crown'sauthority withinforeigntemtories within whichthe British
Crown had acquired various powers. The long title of the Act establishedthat it
was-
"AnActto removedoubts as to the Exerciseof Powerand Jurisdiction
by Her Majesty within divers Countries and Places out of Her
Majesty's Dominions, and to render the same more effectual."
6.74 Section 1of the Act provided in relevantpart:
"Whereas by Treaty, Capitulation, Grant, Usage, Sufferance, and
other lawful Means Her Majesty hath Power and Jurisdiction within
divers Countries and Places out of Her Majesty's Dominions; And
whereas Doubts have arisen how far the Exercise of such Power and
Jurisdiction is controlled by and dependent on the laws and Customs
of this Realm, and it is expedient thatsuchDoubts shouldbe removed:
-
'" A laterAct, theForeign Jurisdnct 1913.madesomeminoramendmensw the 1890Act.butleftthat
earlierAct theprincipalActon themater. Be it therefore enacte...That it is and shall be lawful for Her
Majestyto hold, exercise,and enjoyany Poweror Juridiction which
Her Majesty nowhath or may atany Tme hereafterhavewithinany
Countryor Placeoutof Her Majesty'sDominions, inthe sameand as
ample a Manner as if Her Majesty had acquiredsuch Power or
Jurisdictiony the Cessionor Conquestof Temtory."
6.75 It is clear hm theseprovisions thatthe Awas concemedwiththe acquisitionof
power and juridiction in temtories outside Her Majesty's dominions, that is
temtories which werenorunder Britishsovereignty. Similarly, thepurposeof the
Actwasto makeit clear,asa matterofthe law ofthe UnitedKingdom,that it was
lawfulfor the Crownto exercisethepaver andjurisdictionwhichthe Crown had
acquiredinthe sameway "as if" thatpowerandjurisdictionhadbeen acquiredby
wayof cession or conquest, i.eas if the temtory had become subject to British
sovereignty.Thisclearlytreatsthese "foreign"temtorias remainingforeignand
asnot havingbecomeBritish sovereigntemtory, and providesfor the exerciseof
only those powers whichthe Crownhad acquired by the "Treaty,Capitulation,
Grant, ..etc." in question. It does not (nor could it) establishthat the Crown's
powers overthat temtory, as laid down iruemationaliyin the "Treaty,etc" by
which they were acquired, exceedthose acquiredby the Crownpursuant to that
"Treaty,etc..
6.76 Althoughthe 1843Actwasamendedseveraltimesbefore1884(e.g. in 1865, 1866,
1875and 1878)and theActswere collectivelyknownas "the Foreign Jurisdiction
Acts,1843to 1878".thoseamendmentsdid not affectthe essentialstructureof the
1843Act, which remained the principalAct in force when the1884Protectorate
Agreementwas entered into. In particular, although Section3 of the 1878Act
providedthatby Order in Councilcertain statutesmight be extendedto countries
or places to which the Foreign JurisdictionAct 1843 applied (i.e. "foreign"
countriesor places)andthat thereuponhosestatutesshallapply "asif that country
or place were one of Her Majesty's Colonies", use of the words "asf" makes
it clear that the countriesor places in questionwere not colonies. Similarly,the fact thaby Section4 any countryor placeto whichOrdersin Councilmadeunder
the Foreign JurisdictionActsappliedwere, for a particularpurposeof Englishlaw,
"deemed" to be a colonymakesit clear that they were in realitynot colonies.
6.77 The fact that, as a matter of English law, powers were taken to deal with
Protectorates "asif" they were colonies,notonly showsthat they were in factnot
colonies, but also does not, as a matter of international law, affect their
internationalstatus as Protectorates, as derived from the relevant treaties of
protection. Thosetreatiesmustbe observedwhateverparticularmies of municipal
law may provide: if a State fails to comply witha treaty's provisions,it cannot
justify that failuby referenceto its municipallaw. The rule now embodied in
Article27 oftheViennaConventiononthe LawofTreaties1969is well-established
in internationaljudicial pmctice:
"A party may not invoke the provisions of its interna1 law as
justificationforits failureto performa trea".
In the Greek andBulgarianComunities Case,lZ3 the PermanentCourt in 1930
said:
"it is a generally acceptedprinciple of internationallaw that in the
relationsbetweenpowers whoare contracting partiesto a treaty, the
provisionsof municipallaw cannotprevailover those of a treaty".
The sameprinciplehasbeen expressed inmanysubsequent judicialdecisions,and
it isowaccepted thatit is a
"fundamental principle of international law that internationallaw
prevailsoverdomesticlaw" .
PCU.SeriesB,No.15.pp.26-7
lx Applicabililyofthe ObligationtoArbitrateunderSection21ofthe UnitedNatiomHeadqwrien Agreemeni
of 26 June1947, IRepom 1988,pp.12, 34 6.78 The various Foreign Juridiction Acts were consolida1890nas the Foreign
Juridiction Act890 (NC-M 92).The relevantprovisionsof that Act confirmed
the essentialprovisionsof1843 Act. The preamblerecitedthat
"Whereasby treaty,capitulation, grant,usage, sufferance,and other
lawfulmeans, Her Majesty theQueen has jurisdiction within divers
foreignountries, and it is expedienttoconsolidate theActs relating
tonhe exerciseof Her Majestynsjurisdiction outof Her dominions
....
1 Section1 provided:
"Itsand shallbe lawfulforHer Majesty theQueento hold, exercise,
andenjoyanyjuridiction whichHer Majestynowhas or may aany
time hereafterhavewithin'aforeign countryin the sameand as ample
a manner as if Her Majesty hadacquired that jurisdicbythe
cessionor conquestof temtory."
By Section16 the expression "forcountry"is definedtomean "anycountryor
place out of Her Majesty's dominions",and "jurisdiction"efined so as to
"includepower". ThatActo1890 wasamendedin a minorrespectbythe Foreign
JurisdictionAct 1913,but withoutaffectingthe provisionsquoted.
6.79 In relation tothe variousBritish protectedtemtories in what is now Nigeria, the
provisionsof the Foreign JurisdictionActs as time totime in force were
invokedin makuigthe variousOrden in Councilunder which arrangementswere
made for their administration,referred toabove (para6.66-6.68 T).ese
"foreignjuridiction" Orders in Council continued toprovidethe governinglegal
and constitutionalfrarneworkfor the administrationof the Protectorate(s)right up
tothe date of Independence. In the Nigeria Independence1960, by which
Nigeria'sIndependencewasestablished, theitytowhichIndependencewasking
gryted was still referredtoas "theColonyand the Protectorateof Nigeria".6.80 Thus, from 1884 until Independencein 1960, British practice consistentlytreated
the various Nigerian territorieasProtectorates(saveoniy for the Lagos area -not
relevantto the present case- where Great Britainacquired sovereignty).
6.81 The essentialcharacteristicsof a Protectorate,as explainedin1883 by Sir Edward
Hertslet of the British Foreign Office, have already been quoted (above,
paragraph 6.46). The position of Protectorates as a matter of English law was
explained judicially in these tems by Kennedy LI inR. v. Earl Crave, a pane
Sekgorne "
"Nowthe featuresof Protectoratesdiffergreatly.... The onecommon
element in Protectorates is the prohibition of al1 foreign relations
exceptthose permitted by the protectingState. Within a Protectorate,
the degree and the extent of the exerciseby the protecting State of
those sovereign powers which Sir Henry Maine has described
(InternationalLaw, p. 58) as a bundle or collection of powers which
may be separated one from another, may and in practice do vary
considerably.... What the idea of a Protectorate excludes, and the
idea of amexation on the other hand wouldinclude, is that absolute
ownership which was signified by the word 'dominium' in Roman
Law, and which, though perhaps not quite satisfactorily,is sometimes
described as territorial sovereignty. The protectedcountry remains in
regard to the protecting Statea foreign countr..."
6.82 Similarly, in Nyali Ltdv Attorney-Gener~l,"t~ he Court of Appeal acceptedthat
the Kenya Protectorate was not under British sovereignty. In language mimring
the constitutional position in relation to the Colony and Protectorateof Nigeria,
Denning U explainedthe situationin Kenyaas follows:
"... The difference in law between Kenya Colony and Kenya
Protectorate isthis: In KenyaColony the jurisdiction of the British
Crown is unlimited; but in the KenyaProtectorateit is only limited.
It is limiteto suchjurisdiction as the Crownhas acquiredby treaty,
'" (1910)2K.B.atp. 619
lZ6(1956) Q.B. 1 capitulation, grant, usage, sufferanceand other lawfulmeans." (at
P. 14)
6.83 Both the British casescited (and others not cited)owledgethe foreignnessof
British Protectoratesand thateydid not fom part of British sovereignterritory.
They accept that thedetails of the relationshipbetween the protecting and the
protected Statesare (asreadynotedat paragraph6.62) matterswhichdependon
theparticularcircumstancesof eachProtectorate,andthe subject-matterin relation
to which the question arises.one contradictthe propositionthat the extent of
British powers in relation to the Protectorateare, at the internationallevel,
detemined bythe agreementor otherinstrumentestablishimgthe Protectorate.
6.84 Althoughthe terminologyused for States'intemal or constitutionalpurposesdoes
notalwaysreflectthetrue intemational conceptofprotectorate,it mayalbe noted
that forpurposes of British nationalitylaw, the British Protectorates,Protected
Statesand Protected PersonsOrder in Council 1949(NC-M 58) listed the British
Protectoratesand Protected States existingat that time. The Protectorateswere:
Aden, Bechuanaland, BritishSolomonIslands,Gambia,Kenya,Nigeria, Northem
Rhodesia, Northem Temtories of the Gold Coast, Nyasaland, Sierra Leone,
Somaliland,Swaziland,Ugandaand Zanzibar;the ProtectedStateswereThe Malay
States (namely Johore,Pahang, NegriSembilan, Selangor,Perak, Kedah, Perlis,
Kelantan, Trengganu),Brunei, Tonga, The Maldive Islands, The Persian Gulf
States (namely,Kuweit, Bahrein, Qatar)and The Trucial Sheikdoms of Oman
(namely,Abu Dhabi, Ajman, Dubai, Kalba, Ras alKhairnah, Sharjah, Umm al
Qaiwain).
(vü) Nigenan constitutional arrangements during the Protectorate
6.85 The statusof the Protectorateof Nigeras a Stateforeigntothe UnitedKingdom
although under its protection (but notunder its swereignty) is reflecindthe reliancewhichthe Bntish authontiesplacedafter 1884 on the Traditional Ruleras
an integralpart of the systemof govemment in the Protectorate.The indigenous
systemof govemment by the TraditionalRulers (seeabove,paragraphs 6.16-6.18)
was used by the British authonties, and the TraditionalRulers wereassigned a
specific role in the administrationof the Protectorate. Thus, in particular, they
were in charge of the administrationof the localgovernment(sometimesreferred
to as Native Authonties). Their incorporation in the British administrative
machineryin Nigeria was knownas "IndirectRule", whichwasin effectsimplythe
continuanceof the pre-existingpolitical institutions. Without Emirs, Kings and
Chiefs,there wouldhavebeen no native authorityor nativeadministrationduring
the periodof the British Protectorate.
6.86 Becauseof the importance andrelevanceof the TraditionalRulers atthe time, the
indigenoussystemwas strengthenedin statutorylawto make it more effective. In
general, native authonties carried out a wide range of legislative,executive and
judicialfunctionsin the country, especiaduringthe final phaseofBritishruleand
uponthe attainmentofIndependencebyNigeria.(Seefurtherparagraphs 9.48-9.72
below.)
6.87 A formalconstitutionalrole for TraditionaRulee and Chiefswas incorporatedin
Nigeria's Constitution of1946. A RegionalCouncilwas establishedfor each of
the existingthree regions, namely the Northem, Westernand Eastern Provinces.
The RegionalCouncilin the NorthernProvince compriseda House of Chiefs and
a Houseof Assembly,withal1firstclassChiefsas wellas no fewerthanten second
class Chiefs constitutingthe House of Chiefs, and the Chief Commissioneras
President. At this time the Easternand WestemProvinceseachhad only a House
of Assembly, the Westem Province's House of AssembIy including unofficial
members among whom werethree Head Chiefs nominatedby the Govemor in
consultationwith theHead Chiefsof the Province. The Legislaturesin eachof the
Provinces (Le. the House of Assembly and(where existing)the House of Chiefs)
were authorised to deliberate on the annual expenditure estimates for their respective Provinces andtomake recommendationsthereon tothe Legislative
Council which dealt with the whole country. Recommendations accepte by the
Governorwere duly incorporatedwhen the relevantlegislationwas taken in the
LegislativeCouncil. As members of the relevantlegislative institutions,the
TraditionalRulersand Chiefswere constitutionallyrecognised partsof the system
of govemment.
6.88 Under the Constitution of 1951a HouseofChiefswasintroducedintothe Western
Province, and al1 three Provinces were renamed Regions. Thus by this
Constitution,the Legislaturesof two regions were bicameral, while that for the
EasternRegionwas stillunicameral.
6.89 The Independence Constitution of 1960 introducedmany changes to take into
accountthe attainmentofIndependence by Nigeria. A Houseof Chiefswascreated
for the Easternegion,thusmakingal1threeRegionsbicameral. Eachof the three
Regionswasgiven itsownConstitution, which,in the presentcontext,al1followed
a similarpattern. The Houseof Chiefs was in eachcase made an integralpart of
the RegionalLegislature,whichhad the powerto make lawsfor the peace,onier
and goodgovemmentof the Region. There were,however,certainlimitsupon the
Houseof Chiefs'powersin relationto financial matters.
(viii)Conclusions asto Protectorate Status
6.90 In the light of the relevantconsiderationsof internationaland municipallaw, it is
apparent fromthetermsofthe 1884TreatyandsubsequentBritish arrangements for
the govemanceof Nigeriantemtories that:
(1) thosetemtories constituted British Protectorates;
(2) the Protectomteswereat no stagetransfonned intoa British colony;(3) theywere inno way assimilable to a British colony;
(4) the United Kingdompossessed in relation to themonly such rights and
powers as had beenconferred by the 1884 Tizatyof Protection;
(5) the UnitedKingdomat no time possessedtemtorial sovereigntyoverthem,
in wholeor inpart;
(6) in their relationshipwith the UnitedKigdom, the Protectorateswere at al1
timesforeigncountries;and
(7) in exercisingits rights andresponsibilitiesas the protecState,the United
Kingdom was bound to uphold and not to subvert the interests of the
Protectorates.NEGOTIATIONSCONCERNINGTHEBRITISHAND GERMAN
PROTECIVRATES1,884-1913A. Introduction
7.1 The contemporaneous establishmentof British and German Protectorates over
neighbouringtemtories dong the coast of, and inland hm, the Gulfof Guinea,
and thecompetingactivitiesoftheBritishConsul(Hewett)and theGermanImperia1
Commissionerfor WestAfrica or. Nachtigal) in concludingtreatieswith African
rulers, inevitablygaverise to dserences betweentheir respectiveStates over the
limitsof the respectiveareas in whichthey hadacquireda degreeof authority. In
the area of presentconcem, thefocusof Germanactivitywas at the mouthof the
CameroonRiver and the neighbouring Cameroonsettlements. The focusof British
activitywas at themouthof the Old CalabarRiver and the varioussettlementsof
Old Calabar. The Bakassi Peninsula lay within the temtories of Old Calabar
(above,paragraphs6.33-6.36).
7.2 The Rio delRey,on the eastem sideof the BakassiPeninsula(thenconsidered KI
be a majorriver leadiig intothe interiorwasdiscussedveryearly as apossibleline
of division. On 9 March 1885 Lord Granville(the British Foreign Secretary)
descnbed to the BritishMinisterin Berlin(Charles Scott) aproposalwhichhe had
made to CountHerbert Bismarck:
"Englandwouldagree to retire from the Protectorateof Bota, andof
al1the remainingtemtory up to the right bank of the Rio del Rey
inclusive. Thistemtory would comprisebothbranchesof the Riodel
Rey, as well as the RumbyRiver, the Bamboko, and the Bibundi
temtory, and the temtory betweenthat andBota. On al1this coast
Treatiesprovidii forBritish Protectorateshavebeen concluded. The
only point reserved would be the station occupied by the Baptist
missionariesat Victoria,ArnbasBay,whichhas beenfor a longtime
British propem. With that exception,Englandwouldundertake not
to interfereor make anyfreshTreatieson the wholecoastmentioned,
or in thenlanddistrictslyingbetweenthe RiodelReyandthe French
Colonyof the Gaboon. Germanywouldthus havethe full controlof
the CameroonMountainsand the adjoiningterritory.
Germanyon her part wouldundertakein the same manner to refrain
hm interference or from concluding Treatiesin the temtory westwardof the right bank of the Riodel Reyup to the boundaryof
the British Colony of Lagos; and this engagementwould apply, like
the British undertaking,both on the Coastand in the districts of the
interior. (NC-M93).
7.3 AlthoughCountBismarckgavehis generalapprml to LordGranville'ssuggestion,
hesoughtto negotiatefor "anextensionof our Cameroonpossessions inthe West
downto the CalabarRiver". Lord Granvillecould not agree with thatproposal.
7.4 Those exchangesestablishedthe broad frameworkfor much of the negotiations
which were tofollow,with:
(1) Great Britainwiliii togiveup its interests tothe east of the Rio delRey,
and toconfine themto the Rio del Rey and territory to the Westof that
watelway;
(2) Germany readyto "advance"westwardsup to the Rio del Rey,but also
wantingto move even further West by setting the borders of its area of
interest as far as the Cross River and theAkpa Yafe(assuming themto be
what wasmeant by the referenceto "theCalabarRiver"); and
(3) the areabetweenthe Rio delReyand the Cross and Akpa YafeRivers-that
is, the area of theakassi Peninsula- thus being the principal area of
contention.
B. The Anelo-German Exchanee of Notes of 29 Avril - 7 Mav 1885
7.5 The firstagreementon a iine of separationbetweenBritishand Germanactivities
in the area was concludeby an Exchangeof Notes on 29 Apnl and 7 May 1885
(NC-M 24). This Exchangeof Notes was the culminationof negotiations for
"separatingand definingthe spheres of action of Great Britain and Germanyin those parts of Afnca where the Colonial interests of the two countries might
coniïict" (as set out in Lord Granville'sNote initiatingthe exchange12').
7.6 The line of separationlaid downwas:
"the followingline: that is, on the coast, the right riverbank of the
Rio del Reyenteringthe sea between8'42' and 8"46' longitude east
of Greenwich; inthe interior, a linefollowingthe right riverbank of
the Rio del Rey from the said mouth to its source, thence striking
direct to the left river bank of the Old Calabar or Cross River, and
temiinating after crossing that river at the point about 9"8' of
longitude east of Greenwich, marked 'Rapids' on the English
AdrniraltyChart". l*
7.7 It is to be notedthat thatline was not prescribedas a frontierline betweentwo
areas under differenttemtorial sovereigns: indeed,at least on the British side it
couldnot havedonesinceBritaindid nothavesovereigntyoverthe territoryon the
British side of the line of separation. Rather than being a line determining
sovereigntyovertemtory, the linewas essentiallya line of mutualforbearance,or
non-encroachment, primarily(as the associateNotes exchanged between theparties
show) for the purpose of promoting their trading interests. The British Note
pmposed, and the GermanNote in reply substantiallyrepeated,that Germany:
"engagesnot to make acquisitions, accept Protectorateso, r interfere
with the extensionof British influencein that part of the coast of the
Gulfof Guinealyingbetweenthe rightriver bank of the Rio del Rey,
as above described, and the British Colony of ~ag'os;nor in the
interiorto the Westof the line traced in the precedinparagraph".
'" Count Münster'sNote in qly wasin substmnthe sameeffect. althoughexpressedslightlydifferently:
"negotiati...with regard io a separation anddefinitionof their respectivespheres of Uuluencein the
terrimriesof the Gulf of Guiiea".
12* It may be noted that the &man text. in translation, is slightly diffcrentitheline. Inptionof
panicular, it rmfa "line which is drawnthrough the right river bank of the (asdistinct"
frorn "a line followingthe rightriver bank mta line whichgoes from the sourceof the Rio del
Rey "thencein a straight linc aims tothe Iefi mwardsthe Ieftbank of the OldCalabaror Cross River" (as
distinct from"thencestrikingmithe lei?river bankof the Old Calabaror Cross River"). The GermanNote proposed,but the BritishinitiatingNote did not, an equivalent
engagementon the part of Great Britain. Both Notesrecorded theagreementof
"BothPowers ...to withdrawanyProtectoxates alreadyestablished withinthe limits
thus assigned to the other" (subjectto a specific reservation aboutthe British
Settlementof Victoria,ArnbasBay,whichwasto remain a British possession).In
short, the Notes established political limits upon the two European Powers'
activities and influencein that part of Africa, and curtailed their spheres of
inffuenceaccordingly. They did no more than establishfor each Statea freedom
to act within the geographicallhnits laid down for it, and a prohibitionagainst
actingbeyondthoselimitsand within thelimitslaid downfor the other State. This
freedom, and this prohibition,affectedonly those two States'own positions, and
were thusproperlymatterswhichtheycouldbytreatyregulatebetweenthemselves.
They were established for each State vis à vis the other State on&, and in
particular,theydid not, and couldnot, affectthe legalrightsandobligationsof the
local Kings, Chiefsand Rulers, for whom Anglo-Germanarrangementswere res
interalios acta.
7.8 The concept of "spheres of interest" was well known in the later years of the
nineteenthcentury and earlyyearsofthe twentieth, although sincethen it has been
of diiinishing significance. Hall, inForeign&ers andJurisdictionoftheBritish
Cm (1894). wrote:
"The term 'sphereof influence'is one to which no very definite
meaning is asyet amched. Perhaps in its indefinitenessconsists its
internationalvalue. Itindicatesthe regionswhichgeographicallyare
adjacentto or politically groupthemselvesnaturallywith, possessions
or protectorates,but which have not actually been so reduced into
control that the minimum of the powers which are implied in a
protectoratecan be exercised withtolerableregularity. It represents
an understandingwhich enables a state to reserveto itself a right of
excluding other European powers from territories that are of
importanceto it politically asffordingmeans of futureexpansion to
its existing dominionsor protectorates,or strategically aspreventing
civilizedneighboursfrom occupyinga dominantmilitaryposition. ... Nojurisdictionis assumed,no interna1 or externalsovereignpoweris
taken out of the bands of the tribal chiefs; no definiteresponsibility
consequentlyis incurred." (p. 228)
7.9 The fi& editionofthe sameauthor'sTreariseonInternationa lav (1904)repeated
this language. The first edition of Oppenheim'sInternationalLawlZ9dealt with
the matter in the same sense:
"'Spheresof influence'are therefore thenarnesof such temtories as
areexciusiveiyresemedfor future occupation onthe part of a Power
which has effectively occupiedadjoining territories. In this way
disputesare avoidedfor the future, and the interested Powers can
graduallyextendtheir sovereigntyovervasttemtories withoutcoming
intoconflictwith otherPowers."
The sense of this passagehas been retained in al1subsequenteditions, with the
additionin the4th ed. (1928,ed. McNair)of the further sentence:
"But the establishmentof a sphereof influencedoes not in itself vest
'temtorial rights of a legal nature' in the State exercising the
influence.130
7.10 The essential characteristics of "spheres of influence" were thus that they
established(as againstany other Stateacknowledgingthe sphere of auence) for
the State exercising influence a certain priority and exclusivenessfor future
acquisition,but withoutconferringon it anypresentterritorialrights.
7.11 The very simplicityof the line prescribed in the Exchangeof Notes isentirely
consistent withit being a line separatingspheres of interest, rather than a strict
divisionof temtorial sovereignty. The sketch map (Atlas, Map 30)illustratesthis
lZ9 1sed., 1905,p. 281
1992pp. 691-69(Seenow the9thedition) simplicity,in markedcontrasttothe sinuositiesofthe more preciselater-established
boundaryillustratedat Map 30 in theAtlas.
7.12
It may in passingbe notedthat the statu of this Exchangeof Notes as constituting
a bindinginternational agreementis open to question, for examplein that the two
Notes are not in exactlymatchinglanguage. In part the discrepanciesof language
may be a matter of translation;but some are more substantive(for example,the
absence of an engagement on Great Britain's part matching that asserted by
Germany,alreadynotedin paragraph 7.7). Nevertheless,it seems that thepractice
of the partiesas subsequentlyto treat the Exchangeas if it were an agreement.
C The Anelo-German Exchanee of Notes. 27 JulvI2Aumist1884
7.13
Justovera year after the 1885Exchangeof Notes, thetwoGovernmentsembarked
upon a furtherdelimitationof their separatespheresof activityby a new Exchange
of Notesof 27 July and2 August1886(NC-M25). Essentiallythis newExchange
of Notes extended intothe interior (as far as a point close to Yola) the line
described in the 1885Exchangeof Notes. So far as this Exchangeof Notes may
be relevantto the boundarynorthof the BakassiPeninsula.it is consideredfurther
in Chapters 18and 19. It is relevantto this presentChapter and to Bakassiin so
far as it repeatsthat the limeof separationof the British and German spheres of
actionor influenceran up the Rio delReyand thenceto the Cross River rapids.
7.14 The initiatingBritishNote of 27 July 1886referred backto the 1885Exchangeof
Notes establishingthe British Government's"adherence" to an "Arrangement"
under which:
"a specifiedline ofdemarcationwould separate the districts onthe
Gulf of Guinea within which Great Britain and Germany would
respectivelybe free toacquire temtory, accept Protectorates, and
exerciseinfluence". 7.15 The Note recordedGermany's"acceptanceof the Arrangement". It then wenton
to recall the line set outin the 1885Exchangeof Notes, intems differingslightly
from the earlier version:
"The line agreedupon followsin the interior the nght river-bankof
the Rio del Rey from the mouth of the nver to its source, thence
strikesdiict to the left river-bankof the Old Calabar,or CrossRiver,
and terminates,after crossing this nver, at the point, about 9'8' of
longitude east of Greenwich, marked 'Rapids' on the English
AdmiraltyChart. "
1 7.16 The BritishNotewenton tostatethat the BritishGovemmentwouldbe prepared:
"toagree toan extendedline ofdemarcation, which,startingfrom the
point on the left river-bankof the Old Calabaror CrossRiver,where
terminated,shall be continued diagonallyto such a
the original line
pointon the rightankof the RiverBenuetothe east of,andcloseto,
Yola,as maybe foundon examinationto be practicallysuitedfor the
demarcationof a boundary."
7.17 The German Note of 2 August 1886 in reply in effect expressed Gemany's
concurrence inthat extensionof the 1885line.
7.18 Butas with the 1885Exchangeof Notes, the GermanNotewasnot in al1respects
identicalwith the BritishNote, and, in saying thatthe BritishNote hadposed
an "Agreement",wasfactuallyincorrect. Although,as withthe 1885Exchangeof
Notes(above,paragraph7.12), there maybe doubt astothe legalstatusofthe 1886
Exchangeof Notes, it againseems that the practiceof the partieswas subsequently
totreat the Exchangeas if it wean agreement.
7.19 Lie the earlier Exchangeof Notes (above,paragraph7.7).the 1886 Exchangeof
Notes did notpurport to drawa line establishing a boundarybetweentwoadjacent
areasoftemtonal sovereignty,but wasmerelya lineof mutualforbearanceor non-
encroachment,curtailing thetwo Statefutur seheresof influence.D. The Angl~German -ment resaecting Zanzibar. Helieoland and the Sohem of
Influence ofthe two Countries in Africa. Berlin. 1 Julv 1890
7.20 The 1885,and by extension the1886,Exchangesof Noteshad been concludedon
theassumptionthat the Rio del Rey was a river and that it had a distinctsource,
from which alie couldbe drawnto a particularpointon the CrossRiver. It was,
however,soon questioned whether thatassumptionwas correct. Both the British
Vice-Consulfor the OilRivers Protectoratebased at Old Calabar (Johnston),and
the Governorof the German Protectorateof Kamenin (Baron von Soden) were
conscious of the problem posed by the use of the Rio del Rey as a line of
separation. Johnstonmade a surveyof the area andinhis reportof 14July 1887
to the ForeignSecretary(Lord Salisbury) wrote:
"The Rio delRey is in factwhatmaybe termeda 'huge,unnecessary
estuary', which servesas a commonreceptaclefor a greatnumberof
creeks that are,nost of thern, little more than the escapes to the
overlïowof neighbouring[rivers]. The only stream which has any
right to be considered thetrue Rio delReyis the River Ndian."
(NC-M94)
7.21 For his part, Baron von Soden wrote on 12 July 1888 to the British Consul
(Hewett):
"You know as wellas 1thatthere is no Rio del Rey,at leastno source
of sucha river;thus our Govemmentsmusteitheragreeupon another
frontier,e.g. a degreeof latitude,or theymust leaveus to baptk
one of the numerouscreeks as Rio delRey,and to fixthe sourcesof
the said creeks, or at least a spot wherethe sourcesare supposedto
be." (NC-M95)
7.22 In the event the matter wds resolved in the Berlin Treaty of 1 July 1890
(NC-M26). ArticleIV.2 provided: "2. It havingbeenprovedtothe sausfactionof the twoPowersthat
no river existson the Gulfof Guineacorrespondingwith that marked
on Maps as the Rio del Rey, to which referencewas made in the
Agreement of 1885, a provisional line of demarcation is adopted
between theGennan sphereintheCameroonsand theadjoiningBritish
sphere, which,startingfrom the head of the Riodel ReyCreek, goes
diict to the point, abou9"8' of easclongitude,marked 'Rapids'in
the BritishAdrniraltChart."
7.23 ArticleVI providedthat:
"Al1the linesof demarcationtracedinArticles1to IVshallbe subject
to rectificatiby agreementbetweenthe two Powers,in accordance
with localrequirements",
and went on to provide, with specific referenceto the boundaries traced in
ArticleIV, that it was understood thatCommissionerswould meet as soon as
possiblefor theobjectof suchrectification.
7.24 The referenceto the Gennan "sphere"and British "sphere"must be read inthe
light of the purpose of the 1885 Exchange of Notes, the title of the Berlin
Agreement and its ArticleVI1whichprovidedthat:
"The two Powersengagethat neither will interferewith anysphereof
iduence assignedto the other byArticle1to IV. .."
Accodily, therewas still no questionof the Agreementpurportingto establish
a boundaq between two adjacentareas of temtorial sovereignty.
7.25 It is alsoto be notedthat ArticleIV.2 of the Berlin Agreement madno provision
regarding thecourse of the lineofeparationalongthe Rio del Reyitself.E. The Anglo-German Ameement reswcting the Rio delRev. Berlin. 14 Aoril1893
7.26 ArticleN.2 of the Berlin Agreemenotf 1July 1890had identified the boundary in
the Rio delRey from "thehead of the Rio delReyCreek. There was a felt need
to identify thispoint moreprecisely,and to specify the boundaryfrom there down
to the sea. Article 1of the Agreementof 14April 1893specifiedthe head of the
Rio del ReyCreek as:
"the poin...at the north-westend of the island lying to the Westof
Oron, where the two waterways,named Urüfianand Ikanka nn,the
GermanAdmiilty Chart of 1889-90,meet."
The German AdmiraltyChartreferredto appearsto be thatat Map31in theAtlas.
The map which accompaniedthe text of the 1893Agreementin Hertslet's Afnca
by Treatyis reproducedas Map32 in theAtlas. Hertslet'smap isclearlybasedon
the German AdmiraltyChart appearingas Map 31.
7.27 The boundary from that poindt ownto the sea is specifiedin the followingterms
in ArticleII:
"Fromthis upperend of the Rio delReyto the sea, that isto say,to
the promontorymarkedWestHuk on the above-mentionedchart, the
rightbank of the Rio delReywaterwayshallbe the boundarybetween
the Oil RiversProtectorateand the Colonyof the Cameroons."
7.28 While this might appear to be the firsttime that thedelimitation linepurportedto
separate adjacent temtones under the administrationof the respectiveEuropean
Powers,rather thanjust a line of mutual forbearanceor non-encroachrnent,this
Agreementis directlylinkedto the earlier agreementsestablishmgonly spheresof
influence. The British negotiatin,transmittinga text back to London, refetred
to ias only "the text of a proposedcustomsboundary.""' Sevenmonths later
"' SirC.MacDonald'sdcspatchof 26 March1893WC-M96) the two parties concluded a further agreement refeming once more to the
delimitationking of area snder their influence(seebelow,paragraph7.33).
7.29 By Article III(the only other Article) Germanyengaged"not to allowany trade-
settlementsto exist or be erected on the rightbank of the Rio deRey Creek or
waterway". For its part, the British side engaged "not to allow any trade-
settiementsto existor be erectedon the western bankof the Backasay(Bakassey)
Peninsulafromthe firstcreekbelow Archibong's(Arsibon's)villageto the sea, and
eastwards from this bank to the Rio del Rey waterway". The effect of this
provisionthus appearsto havebeen that, while the nght bank of the Riodel Rey
was, by virtue of ArticleII, established as the boundarybetween the British
Protectorateand the GermanColony,the BakassiPeninsula,which was clearlyon
the Protectorateside of that boundary,was establishedas a zone which was to be
free of trade settlements.
7.30 Thus the parties were establishing restrictionsupon rights whichwouldnormally
flow from control and authority over temtory, namely the establishmentof trade
settlements;for the British this restrictionapplied virtually the whole Bakassi
Peninsula, whileat thesametimethe acknowledgementthattheboundary ranalong
the right bankofthe Riodel ReywasdeprivedofanyimplicationthatGermanyhad
anyrightto establish trade settlemenalong thatbank. TheBritish negotiator(Sir
C. MacDonald)understoodat the the that the outcome was that the "boundary
ends where the sea begins."'" There is nothii in the text of Article ïïï to
suggestthat by providingthat theboundaryfollowed"the rightbankof the Riodel
Rey"Germanywasgettingcontrolof a narrowstripof land alongand inlandjivm
the Rio del Rey. The normalmeaningof languageestablishing a boundaryline
"along thenght bank of a river" accordswith Sir C. MacDonald'sunderstanding
at thetime (above),and is that theboundarywasat the linewherethebank metthe
13' SiC. MacDonaid'despatchof26 March1893, (NC-M96). waters of the river.''' Any grant of rights inland from a line so determined
wouldneedexpress provision, which couldeasiiybe givenif therewereagreement
to that effect.paa fromthe restriction as totradesettlements,the Agreement did
nothingto alter the Protectoratestatusof the temtories to the Westof the Riodel
Rey, and in particular did not amount to a transfer of the Bakassi Peninsulato
German protection. Moreover,had it purported to do so, it would have been a
purported alienationof the temtory of the Kings and Chiefs of Old Calabar in
violationof the Treatyof Protectionof 10 September 1884, and thus ineffectiveto
achievethat result - a matter to be discussed later in the contextof the Anglo-
GermanAgreementof 11 March 1913.
F. The Ando-German keement resoectin~ Boundaries in Africa. Berlin,
15 November 1893
7.31 ThisAgreementwasconcemedwith thefixingofthe pointcloseto Yolawhicbhad
been referredto in the 1886 Exchangeof Notes (paragraph 7.13 above)and then
canying the boundary further northwards. Accordingly,it did not dkctly deal
with the boundary in the Bakassiarea. But in fixingthe point close toYola(see
sketchmap at Map 30 in theAtlus),the Agreementbegan by drawinga line:
"fromthe point on the right bank of theOld Calabaror Cross River,
about 9"8' of longitude eastof Greenwich,marked 'Rapids'in the
English Admiilty Chartrefemd to in theabove-quotedAgreementof
1885".
7.32 Thisessentiallyrepeatedthe languagepreviouslyusedtofix the placewherethe Rio
del Reyline met the Cross River.
- --
133ASto thisseRmnf v.NewHampshire ((1933)289 US 593;ML, 27 (193p.,779) in whichU.S.
SupremeCourt.applyinglanguageprescribingthata boundaryshouldbe "thewesternban&of theRiver
Connecticut".heldthat theboundarye lowwater maonthe westesideof theRiver, expressly
rejected theopposingviewthatthe boshouldnin alongthetopof thewesternbankof the River. 7.33 Itis tobenotedthatthepreamble tothisAgreement stillreferrtothedelimitation
! as beingone:
"betweenthe temtories under the influence of their respective
Govemments intheregionextendingintotheintenorfromtheGulfof
Guinea" .I THEANGLO-GERMAN TREATYOF11MARCH1913
ANDDEMARCATION AGREEMEO NF 12APRIL1913 A. The ktv of 11 March 1913
(i) Background to the Treaty
l
8.1 In the yearsfollowingthe April 1893Agreement, Britainand Germanycontinued
to negotiaten agreeddelimitationof their respectiveterritorialinterests.
8.2 InOctober1895ajointAnglo-GermanBoundaryCommission(underCaptainClose
for Britainand Lieutenantvonesser for Gennany) surveyedthe boundaryfmm
the point fixedythe Agreementof 14 April 1893as the heador upper end of the
Rio del Rey Creek to the point on the Cross River marked"Rapids" on the
AdmiualtyChart. In theirjoint Report(NC-M 97) the Commissionersstatedthat
therewas no natural boundarypossiblebetweenthe twopoints,and theyproposed
a newlinewhichcrossedandre-crossedthe straightlinesin theearlieragreements.
Theyalso said:
"3. It ito be notedthat the existingmadeof everyvillage through
which we passed iswith Old Calabar, either down the Cross River,
through Oban, or throughEkonaku. Alsothat al1the villagesto the
north of the Okuri Peak shownon the attachedphotographare of the
Ekoi race, whichextendsfmm the CalabarRiver."lx
8.3 It is thus apparent, from the Commissioners' jointReport, that in this general
boundaryregion the localink wsere essentiallywestward,with OldCalabar,and
noteastwards with Cameroon. Thisis made evenclearer by the report of 21
December 1895from the BritishActingConsul-Generalin Old Calabar (Moor)to
the ForeigOffi cNC-M98). commenting upon the joint Repor otf tBoundary
Commissioners:
lx F.O.onfidenrlrintNo. 6837. p. 33 "1. The countrythroughwhichthe surveyparty passed isail on the
German side of the direct boundarydrawnbetweenthe fixedpointson
the creek leadhg intoRio del Rey and in the Cross River.
2. Al1the inhabitantsin this country regard themselvesas under
English rule, and carryon their trade exclusivelywith Old Calabar.
There are Efik (Calabar) traders in many of the towns, and 1 am
credibly infonned that many of these towns have, up to a late date,
paid tribute to EfiKuigs and Chiefsas subjects.
3. The upper part of the direct and proposed boundarylinesnorth
of Ekong, passes through a country inhabitedexclusivelyby the Ekoi
people, and will cut off a portion of this race hm the main body.
The Ekoi people extend hm the upper waters of the Calabar River
across to the rapids of the Cross River, and for some liale distance
beyond.
4. The country inhabitedby these Ekois who will be thus cut off
if the direct or proposed boundary be made absolute, is of no very
great extent, nor is it of any very great value. The interests of these
people would, 1 think,be best consideredby their beingplaced within
the Protectorate,and the resulting loss to the Germans would be only
a small matter."
8.4 Moor also noted that, whereas the "Rapids" on the Cross River had in al1earlier
agreements beensaid to be at g08' East longitude,they hadnowbeen fixedbythe
Boundary Commissionersat 895' East longitude, thus in effect (so he thought)
shifting the boundary towards the West. Although this apparent shift of the
boundaxy was a misunderstanding on Moor's part,'36it added to his concems
about splitting the Ekoi people, and led him to suggest- as had previously been
often suggested(see above, paragraph 6.36) - that the better boundaxy between
British and German territorial interests would be the Ndian River, the mouth of
which flowedinto the north-east sector of the Rio del Rey.
13' F.OC.onfidentialPrintNo. 6837, p. 18.
'" Mwing thelonginideg"d onthe surfaceof thegrwasapurelytechnicalmaücranddid notaffectthe
position oftheboundary,whichrelatetoa geographicafleanire,i.e. therapids.8.5 In the event, it was agreed that the boundary line recommendedby the Boundary
Commissionersin 1895could not be acceptedas a basis for a definitivesettlement
of the frontier. On 18 May 1899 the British ForeignSecretary (Lord Salisbury)
wrote to the German Ambassador, saying:
"Her Majesty's Govemmentagree that until a final agreementon the
subject can be arrived at betweenthis country and Germany,the only
course that remains is to retain the original frontier line which was
fixed by Article 4 of the Agreement of the 1st July 1890, and
described indetail in the Agreementof the 14thApril, 1893." (NC-M
99)
8.6 Moor's report of 1895 (above, paragraph 8.3) had, however,pointed the way in
which future negotiationswere to develop, with Great Britain concernedto place
the boundary as far to the East as possible in order to preserve the territorial and
social integrity of the Protectorate and its local inhabitants and to avoid local
societies being dismpted by the drawing of arbitrary boundary lines, and with
Germany seekinga boundary as far to the Westas possible (and inparticular at the
Akpa Yafe)in order to protect German trading interests.
8.7 Further negotiations took place in the years around the turn of the century,
principally between Moor (now Sir Ralph Moor, and High Commissioner for
Southern Nigeria) and the Governor of ibmenin (von Puttkamer): In 1901 they
reached an agreement on a "boundary ...proposed for considerationof the British
and German Governrnents"(NC-M 32). By Article III this boundary would have
met the Coast"at the mouth of the Akpa IyefeRiver" (Le. Akpa YafeICrossRiver)
and wouldhaveput the BakassiPeninsula "into the German Colonyof Cameroon".
In November 1901 the German Government rejected the Moor-von Puttkamer
proposals, and the treaty they proposed was never agreed.
8.8 Further negotiations were held, however, inwhich boundary matters were linked
with various commercial mattersfegardingtransit on the rivers in question. It was still, apparently, the common assumptiothat the adjustedboundaryto be agreed
would begin inthe Southin the Cross River estuary and follow thelowercourse
of theAkpa Yafe,i.e. still putting Bakassion the German side of the line. By an
Exchangeof Notes of 25 Septemberl4November1905(NC-M 36), Great Britain
and Germany establisheda MixedCommissionto demarcatetheboundarybetween
theCoastand the CrossRiver,and to conduct certainmappingactivitiesin the area
to the east of the Cross River Rapids. While the two notes showed some
disagreement asto the precise area with which the MixedCommissionwas to
concern itself, both Govemmentsshared the view that the demarcation to be
undertakenby the MixedCommissionwas to have only a provisionalcharacter,
pending the approval of the two Govemments: the German Note said more
specifically thatthe provisionaldemarcationwould only come into force on the
ratificationof the eventual Boundary Agreemen( twhich was to include also the
agreed provisionsregardingthe outstandingcommercial matters).
8.9 The Mixed Commission carried out its work between December 1905and June
1906, as recorded in the report submittedby the British Commissioner(Captain
Woodroffe)(NC-M 100). The Mixed Commissionmarked theline of the land
boundary witha series of pillars. Thetotal length of the line surveyedwas about
200 kilometres(125 miles). This stretchdemarcated withpillars was well tothe
North of the BakassiPeninsula, and may therefore bedisregardedfor immediate
purposes.
8.10 The Commissioners' proposals also coveredthe southem stretchof the boundary,
dawn to the sea. These were recorded inan undated Protocol bearing the signatures of the two Commissioners: it was apparently signed on 20 April
1906. "' The Protocol(NC-M 101 and 102)proposed:
"the followingboundary betweenSouthern Nigeria and Kamenin:
1. The boundary-line beginsat the mouth of the Akwayafe (Akpa
Iyefe) River at the middle point of the line joining King Point and
Bakassi point. The boundary then follows the thalweg of the
AkwayafeRiver (knownalsoin the upper reaches as the Akpakomm
River) to thejunction of the Ebe and Akpakonim Riversin such a way
thatthe MangroveIslands, near Ikang, are divided as shown on the
adjoining map, and the two small Mangrove Islands north of
Archibongsand Ikang, respectively,fa11on the English side.
The boundary then followsthe Akpakonim River to a pillar ..." [this
being the southernmost pillar erected by the Mixed Commission:
paragraph 8.9 above].
8.11 Although Great Britain was ready to accept the Protocol (Note of 23 May 1907,
NC-M 103). Germany wanted changes and additions to be made (Note of 2 July
1907,NC-M 104). Therefolloweda protractedcorrespondencebetweenthe British
and German Govements overparticular aspectsof the boundary line proposed in
the Woodroffe-Herrma~ Protocol, particularly the course it should follow in the
Cross River estuary seawardof the line joining KingPoint and BakassiPoint, which
13' Camemon has exhibited in Atmex MC 38 the typescript of a French version of the official English and
German tex&of the Protocoltaken from an unanributedsource. This typescriptends (245).with an
"author's note" the effectthat the Protocolwassignedon 20 April.1906 at the village ofArchibong. It
is notclear whether this purports to reflect a notein the original text(althoughone whichdoes not appear
in thefficialprint exhibibydCamemon in Annex MC 39)or whether it wasadded bythe person who
uanslated the officialtext into French. The laner would seemto be the case. since there is some douht
whether the Protocolwassignedon that date,at lbysthe GermanCommissioner. The Reportprepared
bythe BritishCommissioner recordedthat. theGerman Commissionerhavinga~ounced that he mighthave
to sail early for Europe, theBritishCommissionerand a colleague
"marchedto Esu Ayeto complete the Protocol withCaptain HerrmaM before he sail....[On
arriving at Esu Ayehey] receivadlener from the German Commissioneron the26' that. with
much regret. he was compelled to leave Rio-del-Reyfor Duala and Germanythe next day. The
British Commissionernder these circumstanceswrote out a Promol and forwardedit at once to
Calabarin the hope ofits reaching CaprainHerrmann before heleft Duala. It did not, however,
reach him intime." (FO367142,NC-M 101) had not been determined by the Commissioners in their 1906 Protocol. The
outcome was the signatureby British and German officialson 6 October 1909of
an "AgreementrespectingBoundary between Nigeria and the Cameroons" (NC-M
42). This agreement was submitted to the respective Governmentsfor approval.
That approvalwas not given.
8.12 Nevertheless, the terms of the Agreement were infiuentialfor future developments.
Starting wellto the north of the area of Bakassi, in paragraphs 1-17it delimitedthe
boundary southwards down to the point which had been established by the
southernmostpillar of the 1905-1906demarcation(see above,paragraph 8.9). The
last pan of paragraph 17, and paragraphs 18-22,provided for the boundary to run
from that point:
"...thencebythe shortestline to the thalwegof the RiverAkpakorum,
known in its lower reaches as the Akwayafe(Akpajafe).
18. Thence it followsthe thalweg of the Akpakorum (Akwayafe)
River, dividing the MangroveIslands near Ikang inthe wayas shown
on the accompanying map,T.S.G.S. 2240, sheet 2. It theon follows
the thalweg of the Akwayafeas far as a straight line joining Bakasi
Point and KingPoint.
19. Should the thalweg of the lower Akwayafe,upstream from the
line Bakasi Point-KingPoint, change its position in such a way as to
affect the relative positionsof the thalweg andthe MangroveIslands,
a new adjustment of the boundary shall be made,on the basis of the
new positions, as determinedby a map to be made for the purpose.
20. Should the lower course of the Akwayafeso change its mouth
as to transfer it to the Rio del Rey, it is agreed that the area now
known as the Bakasi Peninsula shall still remain German territory.
The same condition applies to any portionof tenitory now agreed to
as being British, whichmay be cut off in a similar way.
I 21. From the centre of the navigable channel on a line joining
Bakasi Point and King Point, the boundary shallfollowthe centre of
the navigablecharnel of the AkwayafeRiver as far as the three-mile
limit of territorial jurisdiction.For the purpose of defining this
boundary, the navigable charnel of the AkwayafeRiver shall be considered to lie wholly to the east of the navigablecharnel of the
Cross and Calabar Rivers.
22. The 3-mile limit shall, as regards the mouth of the estuary, be
taken as a line 3 nautical miles seawardof a linejoining Sandy Point
and Tom Shot Point."
8.13 Althoughthis 1909 Agreement didnot expressly providefor the demarcationof the
boundary delimited by it, it was implicit in its terms that there would be a
demarcation.Thus paragraph27 referredto somethingwhichwasto happen "within
six months from the dateof marking outthe boundary", and paragraph28 provided
that "In marking outthe boundary the representativesof the two Governments"had
certain powersto make minor deflections. Furthermore, the officials,in submitting
the Agreement to their Governmentsfor approval, had added a recomrnendation
"that the delimitationof the boundary on the spot should be undertakenduring the
next dry season, that is in the autumn of next year" (i.e. 1910). Although the
Agreement was not approvedby the two Governmentsand therefore did not enter
into force, the two Governments nevertheless embarked upon the demarcation
which was envisaged, resulting in the Demarcation Agreementof 12 April 1913
(NC-M 46 and see paragraph 8.60 below).
8.14 At this point it is necessary to emphasise thatalthough there had been various
negotiationsbetween Great Britain and Germany about the frontier, none of them
had led to the conclusionof agreements which everentered into force. This is in
particular tnie of:
(1) the boundary recornrnendationsput forward in the Report of the Anglo-
German Boundary Commission (Closelvon Besser) in 1895 (above,
paragraphs 8.2-8.5);
(2) the proposals put forward by Moor and von Puttkamer in 1901 (above,
paragraph 8.7); (3) the proposals put forward in the Protocol signed in 1906 by the Anglo-
GermanMixedCommission(WoodroffeIHenmann)(above,paragraph8.10);
and
(4) the Agreement signed on 6 October 1909 (above,paragraphs 8.11-8.12).
Thus immediately before theconclusionof the Anglo-GermanTreaty of 11 March
1913, the only Anglo-German agreementsrelevant tosovereigntyover the Bakassi
Peninsula which had entered into force were the Exchangesof Notes of 1885 and
1886and the Agreementsof 1890and April 1893, by virtue of which theboundary
between British and Germanspheres of influencewas set at the Riodel Rey,thus
leavingthe BakassiPeninsula clearly on the British side of the boundary.
8.15 Nevertheless,Cameroon has sought to arguethat:
"the Bakassi Peninsula had, for several years prior to 1913, been
acknowledgedto come under Germanjurisdiction. In other words,the
shiftiig of the boundary from the rightbank of the Rio del Rey (as
defined by the Agreement of 14 April 1893) to the thalweg of the
lower reaches of the Akwayafé(as defined by the Hemnann-
Woodroffe Protocol) was by this time held to be definitive ..."
Memorial, 2.88)
8.16 There is no legaljustification for attributingto "agreements"which never entered
into force any "acknowledgement"of the situation which would have existed had
they ever done so, and still less is there any legal justification for regarding as
"definitive"the shiftingof the boundary whichwouldhaveresultedfrom their entry
into force hadthey ever done so. Similarly,Cameroon's assertions that:
"since 1901, the local Britishand German Authorities inNigeria and
Cameroon had agreed that the frontier was to reach the Coastat the
mouth of the River Akwayafé"(Memonal, paragraph 4.282) "it can therefore be said without hesitation that, since 1901, the
Govemments concemed both considered that the River Akwayafé
representedthe frontier" (Memonal, paragraph 4.300)
are without any legal foundation.
8.17 This apparent relianceon the Moor-von Puttkamer proposals of 1901 as the basis
for these propositions ignores the factthat, although those two people were senior
local officials of the two States, their proposals were not agreed by their two
govemments (see above, paragraph 8.7). Cameroon thus seeks to convert a
conditional British proposal (rejected by Germany) into an accomplished and
binding factwith sweeping andserious legal consequences.
8.18 Cameroon has indeed itself recognisedthat the various "agreements"did no?entei
into force.'38 Each of the abortive "agreements" is accepted by Cameroon as
having required govemmental approval but as never having received it. The
inescapable conclusion is that as a matter of law the boundary (such as it was)
remained that laiddown in those agreements whichhad entered into force, namely
those of 1885, 1886, 1890 and April 1893.
8.19 The position ismuch the same as regards certain acts which, even beforeMarch
1913, appear to have been taken on the basis that one or other of the varibus
"agreements" between 1895 and 1909 were about to take, or had already taken,
effect, from which it might seem that the 1913 Treaty merely confirmed those
results flowing from the earlier "agreements". This, however, is not so. An
example is the British War Office's map of 1902, referred to in Cameroon's
Memonal, paragraph 4.323. But even Cameroon accepts that this map treats the
Bakassi Peninsula as "defacto an integral part of the German Cameroons", thus
acknowledging that in lm the position was otherwise. Nor in any event can a
single map of this kind have the legal effectof ceding territory. To repeat: the
138See, forexample,paragraps.51. 2.52-58and2.oftheMernorial earlier "agreements"referred to never legally entered into force, and therefore did
not, in law, have anyeffect upon the boundary between German Kamerunand the
British Protectorateof Southern Nigeria. Anyactions which mighthavebeen taken
insomeexpectation that the boundary question might be settledon the basis of one
or other of those "agreements"were either ill-consideredor simply premature (or
both) and without legal effect, and in particular did not give those "agreements" a
legal force which they did not have. The line of separation remained as laid down
in the existintreariesinforce,in accordancewith whichthe BakassiPeninsulalay
on the British,and not the German, side of the Rio del Reyline.
(ii) The terms of the Treatyof 11March1913
8.20 The Treaty (NC-M 45) was concluded in view of the Parties' wishtoprovide for
"the settlement of thefrontier between Nigeriaand the Cameroons, from Yolato
the seau (preamble). In a series of Articles numbered from 1 to XXII the
Agreementprovided for the course of the boundary (subsequent Articlesdeal with
certain related matters, but do not directly purport to delimit the course of the
boundary).
8.21 Articles I toXVII delimit the boundary in a series of sections southwards and
south-westwardsfrom Yola:they do not relateto that part of the boundary which
is here under consideration (butsee Chapter 19ofthiCounter-Mernori al regards
the boundary betweenBakassi and BP 64). The last section identifiedin Article
XVII refers to the boundary mnning to:
"apillar on the bank of the River Akpakomm about213rdsof a mile
(1 kilom.) downstreamfrom the point where theEkonako-Ekong road
crosses the Akpakorum, and thenceby the shortestline to the thalweg
of the River Akpakorum,known in its lower reaches.as the Akwayafe
(Akwajafe)".8.22 Articles XVIII,XX, XX, XXI and XXII continuethe boundary line as follows:
"XVIII. Thence it followsthe thalwegof the Akpakorum (Akwayafe)
River, dividingthe MangroveIslands near Ikang in the wayshownon
the aforesaidmap T.S.G.S. 2240, sheet 2. It then followsthe thalweg
of the Akwayafeas far as a straight linejoining BakasiPoint andKing
Point.
XX. Should the thalwegof the LowerAkwayafe,upstream from the
line Bakasi Point-King Point, change its position in such a wayas to
affect the relative positions of the thalweg and theMangroveIslands,
a new adjustment of the boundary shallbe made, on the basis of the
new positions, as determinedby a map to be made for the purpose.
XX. Shouldthe lowercourse of the Akwayafeso change itsmouth as
to transfer it to the Roi [sic] del Rey, it is agreed that the area now
known as the Bakasi Peninsula shall still remain German territory.
The same condition applies to any portion of territory now agreed to
as being British, which maybe cut off in a similar way.
XXI. From the centre of the navigable charnel on a line joining
Bakasi Point and King Point, the boundary shall followthe centre of
the navigablecharnel of the AkwayafeRiver as far as the 3-mile limit
of territorial jurisdiction. For the purpose of definingthis boundary,
the navigablecharnel of the AkwayafeRiver shall be considered to lie
wholly to the east of the navigablecharnel of the Cross and Calabar
Rivers.
XXII. The 3-mile limit shall, asregards themouth of the estuary, be
taken as a line 3 nautical miles seawardof a linejoining Sandy Point
and Tom Shot Point."
8.23 It is apparent that this part of the boundary was delimited in terms virtually
identical with those of the equivalentprovisionsof the (non-approved)Agreement
of 6 October 1909. Thus although that Agreement was not approvedbythe two
Governmentsat that the, its substancewas in .thisrespect eventuallyapprovedby
thern in concluding the Treaty of 11 March 1913. This is borne out by Article
XXX of the March 1913 Treaty, which confirmed the mapssigned (but not approved - see above, paragraph 8.11) on 6 October 1909 by the British and
German delegates, and treated them as an integralpart of the 1913T~aty.'~~
8.24 Itis immediatelyapparentthat the boundaryas it resultsfrom ArticlesXVIII - XXII
of the 1913Treaty has the effectof purporting to re-draw the eastem boundary of
the Protectorate of Southem Nigeria in such a waythat the boundary between that
Protectorateand Cameroonmns to the West ofBakassi,thus attributingthe Bakassi
Peninsula to Germany (a conclusionreinforcedby the terms of Article XX).
8.25 Beforethe conclusion of the 1913Treaty, Bakassiformed part of the territories of
the Kmgs and Chiefs of Old Calabar, which in tum formed part of the British
Protectorate of Southem Nigeria. Accordingly, the boundary delimitation
provisions of the Treaty had the purported effect of alienating Bakassi and
transferring it to German administration.
8.26 However, under the ProtectorateTreatyof 1884 Great Britain did not then acquire,
or in 1913 have, territorial sovereigntyover Bakassi. Because of the nature and
scope of the Protectorate agreedby the Kings andChiefsof Old Calabar with Great
Britain, the Kings and Chiefs did not grant to Great Britain any right to transfer
their title to Bakassi to any third Party. Great Britain could not and did not,
therefore, transferterritorial sovereigntyover Bakassi to'Germany by the Anglo-
German Treaty of 11 March 1913. That part of the Treaty was not in 1913
opposable by Germany to the Kings and Chiefs of Old Calabar, who were third
parties whose rights remained unaffected. It was not subsequently,and is not now,
opposable by Germany's successors(now,ultirnately,Cameroon) to the successor
of the Kings and Chiefsof Old Calabar (now,Nigeria).
139These mapswereSeries TSGS 2240, Sheets1 and2. andarereferrioas suchin substantiveprovisions
. .
of the (non-approved)1909 "agreeme"nd the1913Treaty. (iii) Germany's knowledgeof Great Britain's legal position
8.27 The limitations on Great Britain'spowers under the Protectorate establishedin
1884,and in particular its lackof sovereignty over BakassiPeninsulaand thus
its lack of legal authority in internationallaw to dispose of title to it, must have
been knownto Germanyat the the the 1913Treaty was concluded, or ought to
havebeen on the assumptionthat Germanywas conductingitself in a reasonably
prudent way.
The conclusionofthe 1884Treatyof Protectionwaspublicly known. It was
(1)
published in Hertslet's CommercialTreaties,la which was published in
1890. It was also within the scope of an announcementin the official
London Gazeneof 5 June 1885(NC-M 70), which amounced that Britain
had acquiredProtectorates"by virtue of certain Treaties concludedbetween
the month of July last and the presentdate, and by other lawfulmeans" up
to "the right or westernriver-bankof theouthof the Riodel Rey"; a copy
of this announcementwas sent by the ForeignOffice tothe British Embassy
in Berlin, who passeda copy to the GermanForeignOfficewhich, on 18
June 1885,acknowledgedreceiptof it (NC-M 105).
(2) Although there is no direct evidence that a copy of the 1884Treaty was
formally communicatedto Germany by the British Government,it is
inconceivable that Germany was not wellawareof its terms, both as a result
of the publicationspreviouslyeferredto andas a resultofnormal diplomatic
activity on the part of its Embassy in London (including the preparations
which will have preceded the negotiation of the various exchanges and
agreements from 1885 onwards,up to and including the1913Treaty). (3) Germany, which itself established its "protectoraover ibmenin in the
same year as the British took equivalentaction in respectof Old Calabar by
the 1884 Treaties, will have been fully aware of the distinction between
establishing a protectorate and acquiring sovereignty. This knowledge is
demonstrated, for example, by (a) the General Act of the Conference of
Berlin, signedon 26 Febniary 1885and to which Germanyand Great Britain
were parties, which acknowledgedin Article 34 (above,paragraph6.38) that
there was a distinction between a European P&er which acquires
"possessions" and one wh'ichassumes "a Protectorate" on the Coasts of the
African continent; and(b) the Anglo-German Agreementof 15 Novernber
1893 (NC-M 28), Article V of which recordsthe twoStates'agreementthat
neither would, in the sphere of influence of the other, "accept sovereign
rights or Protectorate-"a clear acknowledgementof a distinction between
the two, and a repetition of the similarly clear acknowledgernent inArticle
VI1of the Anglo-GermanAgreementof 1 July 1890 (NC-M 26).
(iv )he principlenemodat quod nonhabet
Nemodur quod non haberis a well-establishedprinciple of law and of legal logic
8.28
- one of the general principles of law recogniseby civilised nations. In any
situation where territorial title derives from a cession, the successor State will
acquire a good title only if the predecessor State was itself, ai the time of the
transfer, the holder of a good title which it was free to transfer.
8.29 The Island ofPalmas establishes the legal position. In that case the issue
was whether the Island was under the sovereignty of the United States or The
Netherlands. The United States based its claim to sovereigntyon the cession of
"' (1928)2 R.I.A.A. 829 vanous temtories, said to include the Island, by Spain to the United States under
the Treaty of Pans, 1898.
8.30 The Arbitrator (Huber) held that the mere fact that Spain and the United Stateshad
concluded a Treaty theterms of which might have applied to the Island of Palmas
was not conclusiveof the United States' title. He said:
"Titles of acquisition of territorial sovereignty ... like cession,
presuppose thatthe ceding and the cessionary Powersor at least one
of them, have the faculty of effectively disposing of the ceded
territory....(at p. 839). The title alleged by the United States of
Amenca as constitutingthe immediatefoundationof its claim is that
of cession, brought about by the Treaty of Paris, which cession
transferred al1rights of sovereigntywhich Spain may have possessed
in the region indicated inArticle III of the said Treaty andtherefore
also those conceming the Island of Palmas(or Miangas). It is evident
that Spain could not transfer more rightsthan she herself possessed.
... (at p. 842). It is evident that whatever may be the right
construction of a treaty, it cannot be interpreted as disposing of the
rights of independent thirdPowers. ... The essential pointis therefore
whether the island of Palmas (or Miangas) at the moment of the
conclusionand coming into force of the Treatyof Paris formed a part
of the Spanishor Netherlandsterritory. ...(p. 843). The claim of the
United States to sovereignty over theIsland of Palmas (or Miangas) is
derived from Spainby wayof cession under the Treatyof Paris. The
latter Treaty,though it comprisesthe island indispute withinthe limits
of cession, and in spiteof the absenceof any reservesor protestbythe
Netherlands as to these limits, has not created infavourof the United
Statesany title of sovereigntysuch as was not already vestedin Spain.
The essential point is therefore to decide whether Spain had
sovereignty overPalmas (or Miangas) at the the of the coming into
force of the Treatyof Paris. ...(p.866-7)."
8.31 Finding that as between Spain and The Netherlands, during the period up to 1898,
title to the Island wasnot vestedin Spain, the Arbitratorheld that, Spainhavinghad
notitle in 1898, could not transfer title by cession to the United States inthat year
and that the Island accordingly formed part of Netherlands territory. In
commentingon this case, Sir Gerald Fitzmaurice treated the underlying principle
as self-evident. He said: "On the basisNemo durepotesr quod nonhabet, it was manifestthat
the United States couldonly have a good title if, in1898, Spain had
a good title. The issue thereforewas whether in 1898 Spain in fact
had a good title, or whether at that date some other country, and in
particular Holland - the other Party to the dispute - had a good
title.
8.32 In the LighthousesCase between Fiance and Gree~e,'~~ Judge ad hoc Séfériadès,
in the context of limitations upon the powersofa territorial sovereignin respect of
temtories occupiedby another State, invokedthe principle in saying(at p. 49):
"There is a general principleof law which must not be lost sightof in
the case we are considering; it is surnrned upin fivewords: Nemodut
quod nonhabet."
8.33 It was, he noted, a principle which had servedas the basis of severalmodem codes,
and he cited as examples the provisionsof the French, Italian and Netherlands'
Civil Codes regarding the purported saleof another person's property.
8.34 The same principle underlies themle that a cession of territory carries with it the
international obligationsco~ected with the territory, since otherwise the ceding
Statewouldbe able to transferthe territory unencumberedbythose local obligations
and that would be to accept that that Statecould transfer greater rights than it
possessed at the time of the cession: see Oppenheim's international Law,lM
invokingthe maxim nemo plusjuris tmnsferrepotest quamipse habet.
8.35 The samecan be said of attemptsto pass to a successora title to property free from
doubts whichattachto that title. Accordingly,Article 11 of the Viema Convention
on Succession of States in respect of Treaties1978 provides that a succession of
Statesdoes not "as such" affect a boundaryor boundary regime establishedby a
14'CollecfedPapers(1986V,ol1.p.262
14'PCIJ.SeriesAlB.No.62
'" Vol.1(9tehd.. 1992p.682 treaty. The InternationalLaw Commission, inits commentaryon draft Article 11,
explainedthat such a provision:
"would relate exclusivelyto the effect of the succession of States on
the boundary settlement. Ztwouldleave untouchedany otherground
of claimingthe revisionor setting aside of the boundarysettlemenr,
whether self-determination or the invalidity or termination of the
treaty. Equally, of course, it wouldleaveuntouchedany legal ground
of defenceto such a claim that might exist.
In short, the mere occurrence of a successionof Stateswouldneither
consecrate rhe aisring boundary ifit was open to challengenor
deprive it of its character as legally established boundary, if such it
was at the date of the successionof State"14(emphasis added)
1 8.36 The Commissioncontinuedthat its formulationof the mie:
"leavesuntouchedanylegalgroundthat may existfor challengingthe
boundary, such as self-determinationor the invalidityof the treaty,
just as it also leaves untouched any legal ground of defence to such
~hallenge"'~(emphasis added).
8.37 This position was reinforcedby Article 14of the Convention,which providesthat:
1
"Nothingin the present Convention shall beconsideredas prejudicing
inany respect any question relatingto the validityof a treaty".
8.38 In the context of the present proceedings, Germanycould not have acquired from
Great Britain any bener title than Great Britain itself possessed; and therefore
Germany could have acquired a good title to Bakassiby virtue of the 1913 Treaty
only if, in 1913, Great Britain had a good title. Great Britain, however,did not
haveany title at al1to territorial sovereigntyover Bakassi.
14' YBILC.1974Vol.IIPt.1,p.210,para.(17).
ibidp.ra.(20)8.39 Furthermore, Great Britain was given no express authority by the Protectorate
Treatyto act on behalf of and in the narne of the Kings and Chiefsof Old Calabar
(see paragraph 6.64(3) above). In the absence of some specific subsequent grant
of authority (of which there is no evidence), such authority as Great Britain might
have had in that respect could only have resultedfrom an implicationfrom the use
of the term "gracious favourand protection" in the Treaty in describing what Her
Majesty "undertakesto extend". Butthis languageconcerns what Great Britainwas
granting to the Kings and Chiefs, not what they were granting to Great Britain. A
grant of authority to alienate territory needs clear language, and being a grant
derogating from the sovereigntyof Old Calabar, any arguably relevantlanguage is
to be interpreted restrictively. Asalready noted (paragraph6.44 above)the concept
of a Protectorateinvolvesconsiderationsof good faith, trust and a duty to act in the
interests of the protected State. Those considerations, like the very word
"protection", preclude the unauthorised giving away ofterritory which was to be
"protected".
8.40 Accordingly,the 1913Treaty,in purporting to transfer to Germanyterritory which
was not Great Britain's totransfer,was concluded inexcessof any territorial rights
and legal powers vested in Great Britain, and was to that extent ineffective to
achievethe purported transfer of territorial sovereignty.
(v) Consequences of Ineffectiveness
8.41 The legal effectof a purported transferof title in codict with the principle nemo
dut quodnonhabet is, as the IslandofPalmasCase(supra)clearly shows,that the
purported transfer of title is withoutlegal effect. The position is essentiallyone in
which a party to a treaty purports to deal with a matter which is not thatparty's to
deal with. It is as if, for example, France and Ireland were to conclude a treaty
which purported to dispose of sovereignty overthe Channel Islands and Isle of
Man. Whateverother effects such a treaty mighthaveas betweenthose two States, it could not result in any transfer of sovereignty away from the State presently
possessing that sovereignty,namely the United Kingdom. Whether this issue is
looked at as a lack of power to conclude a treaty on that matter, or as the
conclusion of a treaty having as its object a matter which cannot properly be the
subject-matter of a treaty between the parties, or as the conclusion of a treaty
purporting to affect the rights of a thiid Party, the result is the same: the treaty
cannot (to the extent of the impropriety)achieve thepurported result.
8.42 The principle nemo dut quod non hubet is so well-establishedand accepted that
occasions for applying it seldom arise. But when occasion does arise, involving
treaty stipulations inconsistent withthe principle,ose stipulations inevitablyfail
to achieve their purported effect. In the present context, holding the "Bakassi
provisions" to be ineffectiverestores the parties to positions which are consistent
with their underlyingobligations,attitudes and practices.
8.43 On Germany's side, the Cameroon Rulers with whom Germany concluded
protectorate treaties had no claims to territories to the West of the Rio del Rey:
indeed, their boundaries stopped some way to the East of the Rio del Rey. The
agreement with Kings Akwaand Bell in July 1884, by which they gave up their
rights of sovereignty andwhich was at the root of Germany'srights in Cameroon,
defined their territories as "the countrycalled Cameroon situated alongthe River
Cameroonbetweenthe River Bimbia in the North and Kwakwain the Southand up
to 4'10' North latitude" (above,paragraph 6.4). The Atlas at Map 27 showsthe
locationsof the River Bimbia, Kwakwa,and the 4"lO'N parallel of latitude. When
formally announcingits newly acquired protectorateto various States in October
1884 (above, paragraphs 6.6 and 6.9(5)), Germany referred simply to the
"Cameroons", and that reference can only be understood on the basis of the
protectorate agreement. Great Britain, in noti@ing the appointment of a Vice-
Consul "for the Territoriesunder the Protectorateof Germany,in the Districts
of Cameroons, bounded on the West by the Rio del Rey" (see
paragraph6.8above)
recognised that the Carneroon~istricts did not extend westwards of the Rio del
Rey. By purporting to extend the territory of German Cameroon even further to
the Westso as to include the Bakassi Peninsula, Germany was going beyond the
territorial limits laid downby its treaties withthe CameroonRulerswho had placed
themselvesunder Germany'sprotection. Bakassihad not previouslybeen subject
to the territorial authority of the Cameroon Chiefs, but on the contrary to the
authority of the various Kigs and Chiefs of the Old Calabar region (see above,
paragraphs6.33-6.36).
8.44 Germany had, moreover, undertaken to Great Britainnot to make acquisitions to
the West of the Rio del Rey. This undertakingwas an express cornmitmentin the
Exchangeof Notes of 29 Aprill7 May 1885 referring to "that part of the Coastof
Guinea which lies between..the mouth of the Rio del Reyand the British Colony
of Lagos". Similarly, ArticleIV.2 of the Agreementof 1J1890 establishedthe
line separating the Britishand German spheresof interest as startingfrom the head
of the Rio deley,and Germanyengaged, in Article VII, not to make acquisitions
in the British sphere.
8.45 After the conclusion of 1913 Treaty it was made clear, in a lett19 April
1913from the State Secretaryof the Imperial ColonialOfficeto the StateSecretary
of the Imperial Foreign Office (NC-106) hat in the German view the March
1913 Treaty was intended to make only "border corrections", implementing the
earlier agreements 1885, 1881 6,90and 1893 and retainingthe bord'ersthere
laid down. Those earlier agreements, of course, used the Rio del Rey as the
boundary in this area. The letter stated tha,191e 3reaty was therefore not
concerned with "the acquisitionor assignmentof partsof a protectorate". Although
thisletter was only an interna1communication between thetwo relevant German Minisrries, it seems to have been prepared in the contextof a request from the
British ForeignOfficeabout the eventualpublicationof the Treaty. It wasprecisely
on the basis that the Treaty oniy involvedminor border adjustmentsand did nor
involve any cession or acquisition of temtory that Germany concluded that no
approvalby the German legislaturewas needed, and thereforeinfomed the British
Governmentthat there was no objection to publication.
8.46 Great Britain, for its part, was of course bouby the 1884 Treaty of Protection,
which imposedobligationsof protection upon Great Britain,and conferred various
The principle pacra sunr
rights on Great Britain but oniy within certain limits.
servandaapplies to that1884 Treatyof Protection as much as toany other: a later
treaty concludedby Britain with a differentparty could not detract from it. Great
Britain itself recognisedthe continued bindingforce of t1884 Treaty. Orders in
Council providing for the governance of the Southern and Northern Nigeria
Protectorates typicallyincluded a definitionof the term "Treaty" in the following
standard terms:
"'Treaty' includes any treaty, convention, agreementor arrangement,
made by or on behalf of [the Crown]with anycivilisedPower,or with
any Native tribe, people, chief, or king, and anyregulation appended
to any such treaty, convention, agreementor arrangement."
8.47 Such a provision was, for example, included in Article III of the SouthernNigeria
Protectorate Order in Council 1911 (NC-M 44), and Article III of the Nigeria
Protectorate Order in Council 1922 (NC-M 53). That definition clearly covers,
interalia, the1884 Treatyof Protection with the~ings and Chiefsof Old Calabar.
Both of those Orders in Councilcontained a further clause permining themaking
of Ordinances, but qualifiedin the followingtenns:
"Provided ... That nothing in any such ordi~nce or ordinances
contained shall take awayor affect any rights secured to any natives in the said territorie~'by any treaties or agreements madeon behalf
.or with the sanction of [the Crown], and al1 such treaties and
agreements shall beand remain operativeand in force, andal1pledges
and undertakingstherein contained shall remain mutuallybinding on
al1 parties to the sarne." (Articles V and XII of the two Orders,
respectively)
8.48 Thus shortly before, as well as shortly after, the conclusionof the Anglo-German
Treatyof 11March 1913, the BritishGovernmentdemonstratedits intentionnot to
affectthe rights secured to the Kings andChiefsand peoples of Old Calabar by the
1884Treatyof Protection, to continue to be bound by al1pledges and undertakings
in that Treaty, and to maintain it "operativeand in force". And, of course, that
was the continuing position of the United Kingdom until 1960, since the whole
structure of the United Kingdom's authority and jurisdiction in respect of the
relevantpart of the Protectoratewas based on that Treaty.
8.49 The practice of both Germanyand Great Britaintowardsthe end of the nineteenth
century showedcertain cornmonfeatures:
(1) In a Protectorate any transfer of territorial sovereigntywas a matter for the
local Ruler (who retained territorial sovereignty),not for the Protecting State;
and any such cessions would normally take place against the paymentof
compensation. By wayof example the provisions of the Anglo-German
Agreementof 1 July 1890concerning Zanzibarmaybe noted. By Article XI
of that Agreement (NC-M26).
"Great Britain engages to use al1her influence to facilitate a
friendly arrangement, by which the Sultan of Zanzibar shall
cede absolutely to Germany his possessions on the mainland
comprised in existingConcessionsto the German East African
Company, and their dependencies, as well as the Island of
Mafia.
'47The 1922Orderin Councilreferreto"Protectorar"steadof "terrimries". It is understood that His Highness will, at the same time,
receivean equitableindemnityfor the lossof revenueresulting
from such cession ..."
Those provisionsare a particularly relevantexampleof the practice adopted
in such cases, since they were part of the same.Agreementwhich, in Article
IV, contained specific provisions about the parties' West African
protectoratesbordering the Gulf of Guinea (see above,paragraph 7.22).
Article XIofthat Agreementmerely providedthat, in relationto the territory
(2)
of the Protectorate, GreatBritain would use its influencewith the Sultan in
order to secure a cession of territory byhim. Where the State in question
itself has sovereigntyover the territory, only then is it appropriate for the
treaty directly to provide for the cession of territory. Article XII of that
same Agreementof 1 July 1890 illustratedclearly this aspectof the matter,
in relationto the cession to Germanyof the island of~eli~oland, overwhich
at the time Great Britainhad sovereignty.
(3) Where territory is transferred provisionis made for the future care of the
inhabitantsof the territory. Again, Article XII.2-7 of the Agreementof 1
July 1890 illustrates this practice in relation to the cession of Heligoland.
Further evidence is also provided by the concem Great Britain showedfor
the futurewelfareof certain British missionaries who remainedat AmbasBay
after that territory was transferred to German authority. In the Exchangeof
Notes of AprilIMay 1885 (NC-M 24), the fourth paragraph of the initiating
British Note of 29 April from Earl Granville, while providing for a
withdrawalfrom territories falling within thelirnits of the sphere of action
fallingto the other Party,made a special resewation "asto the Seulementof
Victoria, AmbasBay, which willcontinue to be a British Possession". This
was followedup by a separateNote of the same date (NC-M 107), in which
Lord Granville explained that that resewationhad been in respect: "of a settlement of Baptist missionarieswhom Her Majesty's
Govemment could not undertaketo transfer against their will
to German jurisdiction".
He added, however,that:
"if the GermanGovernmentshould beablethemselvesto come
to a satisfactoryarrangementwiththe missionaries,there being
no political necessity involved, the difficultyas to the cession
of Ambas Bay would disappear, and Her Majesty's
Govemment would beready to agree to its being included in
the territories to be place...under German protection".
In other words, Great Britain wasunwilling("could not undertake") to agree
to the cession of Ambas Bayto Germanyunless the inhabitantsof the British
possession of Ambas Bay (Le. the missionaries) could come to a mutually
satisfactoryarrangementwith Germany safeguarding their interests.
8.50 In this respect, there wasa marked contrast between GreatBritain'sconcem for the
inhabitants of transferred territories in the cases mentioned, and the lack of any
similar concem in respect of the inhabitantsof the BakassiPeninsula (other than a
continuationof fishingrights in Article XXVI,and a right of emigrationwithin six
months in Article XXVII -provisions which atleast recognise that the inhabitants
were not previously subject to German authority). Yet by the 1884 Treaty of
Protection, entered into at the request of "the Kings, Chiefs, anpeople of Old
Calabar", Great Britain undertook "to extend to them ...[the Crown's] gracious
favour and protection". To transfer people to the authority of another State,
without their consent and as if they were mere chattels, would not have been
consistent with the obligation toxtend to them British "protection". Nor would
it have been consistent with the concem of Great Britain and Germany, expressed
in the preamble to the General Act of the Conference of Berlin of 26 Febmary 1885148 ("préoccupésen mêmetemps des moyens d'accroître le bien-être moral
et matériel des populationsindigènes""? to transfer native populations from one
national administration to another without their consent,and even without having
informed them or consulted them. This would have disregarded their well-being
rather than furthered it. Overall, the lack of any real concem for the fate of the
inhabitantsrenders iniquitousthe provisionsof the Treatypurporting to transfer the
Bakassi Peninsula to Germany, and is a further ground for rejecting their
effectiveness.
l It is indeed apparent that not only was the consent of the local inhabitants not
8.51
l sought, but that they were not even informed of any prospective transfer of the
BakassiPeninsula to German administration. Had it been othenvise, there can be
little doubt that the delegationof local chiefs to London in mid-1913 (below,
paragraph 9.3 (5)) would haveraised the matter during their visit - but there is no
record of them doing so. In this connectionthe observationsof the Arbitrator in
the Island of Palmas Case are relevant. The Spanish-AmericanTreaty of Paris,
which apparently includedthe Island of Palmas in the area ceded to the United
States, had been notified to The Netherlands (the other State with claims to
sovereigntyover the Island), which had raised no reservation on the point. The
question arose whether that silenceon the part of The Netherlands couldaffect its
title to the Island. The Arbitratorin the Island of PalmasCase,1soobservedthat:
"it would be entirely contrary to the principles laiddown aboveas to
temtorial sovereignty to suppose that such sovereignty could be
affected by the mere silence of the territorial sovereignas regards a
treaty which hasbeen notified to him and which seems to dispose of
part of his territory" (at p.43).
--
14'
'49 BFSP.Vol.76 (1884-1885)p.4
"concernedat thesameUmeas tothemeansof furtheringthemoralandmaterialwell-beingof thenative
population"
Is0 (1928)2 R.I.A.A.829 That conclusion would follow even more strongly where the territorialsovereign
was not even informedof the cession.
8.52 Taking into account the various considerations set out in paragr8.24-8.51
above,totakethe "Bakassiprovisions"at their face value wouldnot only be wrong
in law but would also be contrary to the established practicesof the parties in
similar contexts at that thThe conclusion that the March1913 Treaty ceded
Bakassito Germany wouldbe againsrthe nature and terms of Great Brita1884
Treaty of Protection with Old Calabar, against the interests of the inhabitants,
againsrthe financial interestsof the title holders of Old Calabar who should have
been compensated, against the recognised westward limit of the German
Protectorate, againstearlier undertakingsby Germany to respect the Rio del Rey
as the boundary and to make no acquisitions to the West of it, and againsr
Germany'sacknowledgement andunderstanding that theTreatywas not concerned
with the acquisition or cession of territory. Considerations of cession were, it
would seem, farfrorn the minds of the parties. In reality, it wouldseem more the
case that their concerns were with matters of trade: it was the protection of their
trading interests whichwas their main concem.
8.53 As a final observation on the Treaty 11March 1913 it is to be noted that it
lapsed as a result of the First WorldWar. Art289eof the Treaty of Versailles
provided for therevival of pre-war bilateral treaties concluded by Germany on
notification to Germanbythe other Party. However,Great Britaintook no steps
to revive the March1913 Treaty. In the terminology of Artic289 it was and
remained abrogated. Carneroondid not therefore succeedto the Treaty itself.
8.54 However,in accordance with well-establishedrules of international law, in so far
as a boundary was lawfullyestablishedby that Treaty,the boundary survives until
lawfullychangedby some subsequentact binding upon the States concerned. For
the reasons already given, the boundary purportedly establishedby that Treaty in
relationto Bakassi was not lawfully established, and there was therefore no consequentlawfulboundary which could survivethe lapseof the Treatypurportedly
establishing it.
~ (vi) Severability of the "Bakassi provisions" of the 1913Treaty
8.55 The ineffectivenessof the 1913Treatybecause of inconsistencywith the principle
nemoda?quod nonhabet applies only to those parts of the Treaty which purport
to prescribe a boundary which, if effective, would have involved a cession of
territory to Genn-for convenience referredto as "theBakassiprovisions". The
remaining provisionsof the Treaty are untainted by that defect. They are self-
standing provisions, and their application is not dependent upon the Bakassi
provisions. The Bakassi provisions, being in law defective, are therefore to be
severed from the rest of the Treaty,and the Treaty's otherprovisions accordingly
remain in forceand fully effectiveaccording to their terms.
8.56 The ineffective"Bakassi provisions"of the Treatyof 11 March 1913are primarily
Articles XVIII,XiX, XXXXI and XXiI. The rest of the Treaty'sprovisionscan
continue to be applied. Doing so has the followingeffect.
8.57 The valid provisionsdelimitingthe boundary stop withArticle XVII. At 'theend
of that Article the boundary line is described as mnning:
"to a pillar on the bank of the River Akpakomm about 213rds of a
mile (1 kilom.) downstream fromthe point wherethe Ekonako-Ekong
road crosses the Akpakomm, and thence by the shortest line to the
thalweg of the River Akpakomm, known in its lower reaches as the
Akwayafe(Akwajafe)."
The location of the pillar referred to is shown at about latitude 5"ll'N on Arlos,
Map 33 (whichis a reproductionof the map referrnic clXVsIand XVIII).8.58 ArticleXVII stipulates thatthe boundarninsfrom this pillar "bythe shortestline
to the thalweg of the River~k~akorum, known in its lower reaches as the Akpa
Yafe(Akwajafe)". The reference to the thalweg, i.e. the navigablecharnel in the
nver, implies a reference to a part of the river where it is navigable. For thekind
of small craft using these reaches of the river, the river is normally navigable
without interruption up to the waterfall and rapids marked on maps, some 25
kilometres downstrearnfrom the location of the pillar. The terms of ArtiXVII
itself thus take the boundary considerablyto the south of the boundary pillar.
8.59 Since the next Article is ineffective, its stipulations as to the boundary are not
directly relevant. Accordingly,the boundaryeffectivelyestablishedby ArtiXVII
runs southwards alongthe thalweg of the Akpa Yafebeyond the beginningof the
navigablepart of the river. The point on that stretchof the river which marksthe
end of the effective delimitation in accordance with ArticleII is the point at
which the territorial authoriiy of the Kings and Chiefs of OldCalabar ceased.
Availableevidence (see, e.g. above, paragraphs 6.35 and 6.36) shows that their
authority extended at least as far up the Akpa Yafeas various settlements in the
neighbourhood of the present town of Archibong, and included the present
townships known as Akwa, Mbenrnong and Nwanya, al1 of which are long
established Nigerian settlements. The appropriate pointon the AkpaYafeat which
the boundary effectivelyestablishedby ArticlXVII ends is a point to the north of
these locations, and in particular is the pointon the thalwegof that River whichis
opposite the mid-point of the mouth of Archibong Creek (as to which see
paragraphs 11.7 and 11.8(1) below).
B. The Ando-German Demarcation Ameement of 12 A~rii 191316 Julv 1914
8.60 While the Treaty of 11 March 1913 was being negotiated ajoint Anglo-Geman
surveyand demarcationwas takingplace. This ledto twoCommissioners(Captain
Nugentfor Great Britainand OberleutnantDetzner for Germany)signinga Protocol at Obokumon 12 April 1913 incorporatinga detailed description of the boundary
line on which they had'reachedagreement (NC-M46). This boundary coveredthe
stretch of Anglo-GermanBoundary from near the southenunost pillar of the Yola-
Lake Chad demarcation previously carried out (some 45kms. - 30 miles - south-
west of Yola)to a pointat a bend in the Cross River about 2% miles upstrearnfrom
Obokum, on the North bank of that river (see also paragraph 18.44 et seq. and
19.104 below). On 6 July 1914 Notes were exchanged between the two
Govemmentsby which each accepted the text signed by the Commissioners (with
some minor corrections). lS1
8.61 The stretch of boundary coveredby this Agreement ran nofurther South than the
point on the Cross River referredto. That point is wellto the North of the Bakassi
Peninsula. The line demarcatedbythis Agreementis therefore notdirectly relevant
to the questionof title to that Peninsula. It is relevant tothe Secofrthe Nigeria-
Cameroon boundarywhich runs northwardsfrom the identified pointon the Cross
River, and is considered further in Chapters18 and 19.
8.62 It may be noted here, however, that the two Govemments had instructed their
Commissioners only to demarcate the boundary as far South as the Cross River.
It is apparent fromthe Note of 16July 1912 from Sir EdwardGrey tothe German
Ambassador and the reply of 16 August 1912 (both at NC-M 108) that the two
Govemments did so because in their view the portion of the boundary betweenthe
Cross River and the sea had been marked with boundary pillarsby the Boundary
Commission which had operated in 1905-1906.152 In fact the pillars erected
during that demarcation involvedthe erection of no pillars in the Bakassiarea, the
southemmost pillarbeing erected on the right bank of the AkpakorumRiver, some
Is1 The Exchangeof Notesis evidencedbytheTranslainw Englishof PrinceLichnowsky'sNoteof 6 luly
1914whichis Annex MC93w Cameroon' semorio1andappearsasAnnex NC-M329 referrew inpara.
18.47 below.
lS2 AS towhichsee below,paragraph19.58 (3).60 kilometresNorthof BakassiPointandsome25 kilometresNorthof thewaterfall
thatintermptsnavigationon the AkpaYafe. CHAPTER9
BAKASSI:1913-1960 A. Non-imalementation of the 1913 neatv bv Germanv on the pi-ound
9.1 The signature of the Treatyof 11 March 1913was followedin August 1914by the
outbreak of World War 1, leading to the military occupation of German Kamenin
by British, French and Belgian forces. That occupation was cornplete by May
l 1916.
9.2 Cameroon relies on the Treaty of 11 March 1913 in support of its clairn to the
BakassiPeninsula,"' but nowherecontends that that Treaty was carried into effect
in the form of actual occupation or administrationof Bakassiby the authorities of
, German Kamerun.
9.3 The weightof the evidence stronglysuggeststhat there was no German occupation
or administrationof Bakassi, and no significant patternof German activities there,
in the period between March 1913 and May 1916. During that period and
thereafter, the authority in Bakassi of the Kings andChiefsof Old Calabar and of
the developing Nigerianregional and local govenunentalsttuctures of the Nigerian
Protectoratecontinued unintempted.
(1) It is clear from the diplomaticexchangesprior to 11 March 1913 set out in
NC-M 109 that a major reason why Germany sought control over Bakassi,
apart from the strategic issue of control over the Cross River estuary, was
to exercisecustomscontrol over traders in the Peninsula. Cameroon alleges
nothing thatcould amount to a German act of sovereigntyin the Peninsula:
nor has Cameroon produced evidence that Germany ever occupied or
administeredthe BakassiPeninsula.
(2) Bakassiwas an extremely remote area, difficultof access exceptby sea, and
with most of its settlements situated on the western side of the Peninsula.
Is3Memonal. Chapter2. SectionZA,sub-sections9 and11 For these reasons, a German occupation of the Peninsula, or the
establishment of an administrative structure within it, would have been
difficult for logisticalreasons, even if the populationhad welcomed it.
(3) There is a further reason why it is intrinsicallyimprobablethat theGermans
would have endeavouredto establish themselves inthe Peninsula. There is
ample evidence thatGermany found it quite difficult enoughto establishand
maintain its control over Kamerun itself. Furthermore, there were few
Germans in the colony. Even in 1914the total number of Europeans in the
colony, including traders both German and British, numbered only 1,871.
Consequently in German Kamerun, as indeed in Nigeria, administration
continued in this period to be conductedlargelyon an indirectbasis, through
the traditional authorities. Thiskind of administrationnecessarily depends
upon consent, and it is improbable that the population of Bakassi, owing
allegiance to the Kings and Chiefs of Old Calabar, could have been
persuaded in this period to acknowledge the authority of traditional
authoritiesemanatingfrom Kamerun. There is in any eventno evidence that
any attempt was ever made so to persuade (or indeed inform) them, either
before or after 1916.
(4) Anyattempt to dismpt or change the traditionalties betweenthe population
of Bakassiand the Kingsand Chiefsof Old Calabar (particularly on thebasis
of a treaty of which the Kings and Chiefswere at the timeunaware - see sub-
paragraph (6) below) would have met with a lively adverse response,
particularly since the treaties of 1884 remainedwell within living memory,
and it was certainly remembered that these had been treaties of
pr~tection.'~~There is no evidence of any such protest in the period 1913 -
1916.
154 A similarpointwas madbylohnstonasearlyasOctober1890 -seeparagraph6.36 ahove. (5) By contrast, in the same year in which the Treaty was concluded, 1913, the
Kings and Chiefs did mount vigorous protests, both in Calabar and in
London, at a development which they considered unfavourable, namely at
perceived British proposais to amend the system of indigenous land tenure
applicable in south eastem Nigeria. These matters are alluded to at
paragraph 8.51 above. In that year Eyo Honesty VIII, Obong of Calabar,
together with his Council of Etuboms, dispatched a delegation to London
consisting of Prince Bassey Duke Ephraim IX (a member of the Native
Council of Calabar and a son of the late King Duke)and Prince James Eyo
Ira VII, Chief of Creek Townand grandson of King Eyo. In the course of
that visit the subjectof landtenure inthe Protectoratewasaired inthe British
Parliament. Mr. Cathcart WasonMP askedMr. Harcourt, Secretary of State
for the Colonies, whether
"...the Governmentproposesto transferthe ownershipof land
in Southem Nigeria from the nativecommunitiesto the Crown
or to dispossess the natives of their land."
The answercame back:
"... No, Sir, the Government have never made, and never
entertained, and wouldnot entertain such a proposal."'"
(6) The Governmentof Nigeria has beenunable, despite extensiveresearch, to
obtain any evidence tending to show that the Kings and Chiefs of Old
Calabar were even awarethat the Treaty of 11 March 1913 was under
discussion or that it was signed in London, far less of its terms. In the
absence of any evidenceof protest, the ovenvhelmingprobability is that the
matter was neverbrought to the attentionof the Kings and Chiefsprior to the
outbreak of World War 1. Cameroon as sert^'^t^at the Treaty was
155Hamard, 11 July1913,(NC-M 110)
156Memorial.para.4.287 published in the German Colonial Gazette15V ' ol. 24 of 1913 and in the
British TreafySeries, 1913, No. 13. There is, however,no evidencethat the
Kigs and Chiefs saw either document or were made aware of the
implicationsof the contents of these publications.
9.4 Cameroon seeks to rely158 in support of its contentions upon certain contemporary
maps, which Cameroon contends showed Bakassi as part of German Kamerun.
Nigeria reserves its position generally as to map evidence in the present case, but
neverthelessrepeats that, asis clear for the reasons set out in paragraphs8.14-8.19
above, on no view could the Akpa Yafehave become the international boundary
prior to March 1913. Consequentlyany map produced prior to that date, although
it may to some degree have reflected the expectationsof map-makersas to future
boundary arrangements,was and isin no sense a reliable indicator as to titleto the
Peninsula.
B. The Effects of the VersaillesTreatv of 1919
9.5 The Versailles Treatyof 1919lS9came into force on 10 January 1920. Part IV
of that Treaty was entitled "German Rights and Interests Outside Germany", and
included Article 118. which read as follows:
"In territoryoutside her European frontiers as fixed by the present
Treaty, Germany renounces al1 rights, titles and privileges whatever
in or over territory which belongedto her or to her allies, and al1
rights, titles and privilegeswhatever their origin which she held as
against the Allied and AssociatedPowers ..
In particular, Germany declares her acceptance of the following
Articles relating to certain specialubjects."
IS7 DeltfschesKoloniolbian
lS8 ibidChapter3. Section5 (Cartography)
lS9 TheArticles citedappearNC-M 49 9.6 Article 119read as follows:
"Germany renounces in favourof the Principal Allied and Associated
Powersal1her rights and titles over her overseapossessions."
1 9.7 Article 289 read as follows:
"Each of the Allied or AssociatedPowers,being guidedby the general
principles or special provisions of the present Treaty, shall notify to
Germany the bilateral treaties or conventions whichsuch Allied or
Associated Power wishes to revive with Germany. ... Only those
bilateral treatiesand conventions whichhavebeen the subject of such
a notification shall be revived between the Allied and Associated
Powersand Germany; al1the others are and shall remain abrogated".
9.8 The existenceof a state of war between Germanyand Great Britain in and after
August 1914 made it impossible at any the thereafter for Germany or any
successor power to seek to implement any provis~onof the Treaty of 11 March
1913 that remainedto be implemented. Moreover, oneof the effectsof the treaty
provisions cited above was that the Treaty of March 1913 was and remained
abrogated(above,paragraph 8.53). Accordingly,at no timeafter 10 January 1920
was it possible for Germany or any successor to seekto implementany provision
of the Treatyof March 1913that remainedto be implemented.
1 C The realities of administrative develooment in Bakassi between 1913 and 1960show
that.as before. Bakassi continued throughout the oeriod to be administered as oart
of Nieeria
9.9 After 1916, the territories on both sides of the Akpa Yafecontinued, as before, to
be administeredbyGreat Britain. The westernpart of the former ~erman Kamerun
was administeredby Britain, first as a result of militaty occupation, then pursuant
to the Treatyof versailies (signedon 28 June 1919),the ~ilner-simon Declaration of 10July 1919, and subsequentlyunder the British Mandateof 20 July 1922, until
the Second World War. After World War II it was administered by Great Britain
under the United Nations TnisteeshipAgreementof 13 December 1946.
9.10 Administrative, legal and other ties between Bakassi and the rest of Nigeria
continued unbroken and unintenupted throughout the period between 1913 and
Nigerian Independence in1960.
9.11 Camerooncontendsthat after WorldWar1,Bakassiwas administeredas part of the
British mandate territory of the Southern Cameroons. In the event, after World
War 1 the whole of the mandated territory of the British Carneroons cameto be
administered as part of the Nigeria Protectorate, so thatthe distinction between
mandated and protectorate territory, whileacknowledgedin principle, had virtually
no practical significance for the people of Bakassi and Calabar. There was no
practical day-to-day needfor the British or local administration to distinguish
between what might have been former German territory and what was British
protected Nigerianterritory. Conduct in relation to Bakassiwouldin practice have
been the same whether it was regarded as former German territory or whether it
was British protected territory.
9.12 There was in any event noquestion of non-Britishnile, and no question of putting
an end to the traditional authorityof the Kings andChiefsof Old Calabar. Whether
in the Protectorate or in the mandated territory, Britishnile in the early post-war
period was predominantly indirect, through the traditional indigenous authorities.
In view of the remoteness of Bakassi, the difficulties of getting access to the
Peninsula, the seasonal activities of much of the population, and the unhealthiness
of the climate, it is not surprising to observe that direct British interventionsin the
Peninsula, remained very limited throughout the period prior to Nigeria's
Independence in 1960. Effective authority continued to be exercised by the
traditional sourceof powerand authority in the Peninsula, namely bythe Kings and
Chiefsof Old Calabar.9.13 This state of affairs was reinforcedby the fact that theboundaries of the British
mandated territory were never defined preciselyor comprehensively.
(1) The Milner-Simon Declaration of 1919 (NC-M 50) did not do so: it was
adoptedbefore themandatehadbeen created and so could not havepurported
to define its territorial boundaries; as noted in paragraph 19.39 below, it
described the boundary in evidently inadequatedetail; and in anyevent, it
described oniy the Franco-British boundary -i.e. the eastem boundary of the
British mandatedterritory - and not thewhole of that territory.
(2) The Mandate itself (NC-M 51) did not do so, since in Article 1 it merely
described the Britishmandatedterritory as comprising thatpart of Cameroon
lying to the Westof the line agreed uponin the Milner-SimonDeclarationof
1919. It accordingly irnported into the Mandate the deficiencies of that
Declaration, dealing oniy withthe eastern boundary of the British mandated
territory.As regards the western boundary, it said nothing other than what
was to be impliedby the mandatedterritory havingbeen "partof Cameroon".
This, so far as concemed Bakassi, involvesa reference backto the legally
effective boundary betweenCameroon and the Nigeria Protectorate - which,
for the reasons explained in Chapter 8, left Bakassi as part of that
Protectorate.
The British Mandate Order in Council 1923(NC-M 111) did not do so.
(3)
(4) The Cameroons Under British Mandate Order 1932(NC-M 112)did not do
SO.
(5) The Nigeria(protectorateand Cameroons)Order in Council 1946(NC-M55)
did not do so. (6) The Trusteeship Agreement forthe British Cameroons 1946(NC-M 56) did
not do so, being concerned with the future trusteeship arrangements,and not
with the Mandate.
9.14 There is no doubt that the provisionsof the March 1913Treatyconcerning title to
Bakassi have caused considerable confusionover the years. In the absence of a
detailed analysis of the legal position of the type carried out in Chapters6 to8
above, there was a natural tendencyon the part of administrativeofficialsto have
regard to those provisions. Even so, during the inter-war years, those officials
found the provisions to be contrary to local custom, usage, administrative
practicality and comrnonsense.
9.15 There is evidence that some British officialsadministering the mandated territory
of the Southern Carneroonsthought that the locationof the boundary between the
mandated andprotectorate territoriesleft Bakassi within Nigeria proper. Thus in
a letter written on 17 April 1919 (NC-M 113). Mr. Hunt, the British District
Officer at Ossidiige, in Southern Cameroons, inofficia1correspondence with the
British Resident at Buea, clearly stated that the boundary with the Nigerian
protectoratefell on the right bank of the Rio del Rey. He continuedby statingthat
the boundary should infact fa11farther to the East, in ordertoinclude within the
Nigeria Protectorateal1the Rio del Rey estuary and basin.
9.16 Both the Milner-Simon Declarationof 1919 and the British Mandateof 1922refer
to the Moisel map which was apparently made in 1911. That map was, for many
reasons, unreliable as to the true location of the boundary, but it appears to have
had an unwarrantedinfluenceon cartographers' perceptionof the Bakassiboundary.
It purported to be an authoritative map, and its credibility was enhanced by its
adoption by MilnerISimon as the map annexed to the 1919 Declaration.
unsurprisingl$, given the constraintsof knowledgeat the time, it tum out to have many deficiencies.lm Map-makers at this period were still largely reliant on
accounts givento them by travellersregarding difficultterrain in remote locations.
They would also have taken at face value the wordingof relevanttreaties or even,
as is apparent with regard to Bakassi, exchangesof notes or protocols within the
public domain.
1 9.17 The Sheet of the Moisel Map which showsthe purported 1913boundary Westof
Bakassi,wasactuallydated 1August 1911,eighteen monthsbeforethe March 1913
Treatywas signed. Theexact legalstatus of the documentsrelied upon to produce
maps would not have been the concem of cartographers such as Moisel. The
disproponionate influence exercised by the Moisel map has continued to haunt
Bakassi ever since its first publication. The evidence is that generations of
canographers have unquestioningly followed Moisel's original 1911 portrayal of
Bakassi as being in Kamerun (and subsequentlyin the Cameroons) withoutregard
to the underlying legal reality.
9.18 There wasa body of opinion amongstBritish mandatory officials which, influenced
no doubt by that map, regardedthe Akpa Yafe,albeit mistakenly,as the boundary
between the Nigerian Protectorate and the Mandated Territory. There was
consequently some confusion as to whether theBakassi area (known during this
inter-warperiod as 'FishTowns'or 'Fishtowns') should,at least for somepurposes
of the British administration, be administered as partof the VictoriaDistrict, with
Douala as its centre. Later, part of Bakassibecame nominallyincluded inKumba
AdministrativeDistrict, with itsheadquartersat Mamfe. Boththese townswere and
are significantlyfurther awayfrom Bakassithan Calabar (seeAtlas, Map 34).
9.19 Hawever, for the reasons already stated in Chapters 6 to 8, those British officials
who believed that at least in theory Bakassi was part of the Mandated Territory
were simply mistaken. Where British officials held that view, they did so with
Someof thesearereferredw belowin Chapten18 and19. particatparagraph18.60 reluctance, and regarded thepoint as farmore a theoretical than a practical one.
Mandatory Powers did not acquire sovereignty over the territories placed under
their administration. They thereforedid not have the requisite authorityor power
to alter, whether by addition or substraction, the territorial sovereigntyof the area
under their administration. Their actsof administration,includingany whichmight
be regarded as having treated Bakassias part of the British mandatedterritory, are
thus irrelevantto the sovereigntyover that territory, and in particular do not suffice
to overcome the legal defectsin the process by which Bakassi is alleged by
Cameroon to have been part of the British Mandated Territory ratherthan of the
British Protectorate.
9.20 The distance from the administrativecentresof the British Cameroons would have
made various administrativetasks, such as the collectionof taxes, unduly difficult,
and also flew in the face of the realities of local and indigenousties and lines of
authority. Thereality wasthat Bakassicontinuedto be administered fromCalabar.
9.21 An AssessmentReportof the Fish Townsarea by the ActingDivisionalOfficer,Mr
F. Carr, carried out inFebmary 1922stated that:
"The more permanent dwellers ...are said to be of a tribe known as
IFIALE. It is statedtheir country is situated in Nigeria to the North
East of Calabar, and havingno fish in their ownpart theyuse this area
to obtain it. Numbers of Calabar men come to the towns for fishing
and trading." (NC-M 114)
9.22 The Report (at p.3) alsohighlightedthe factthat a number of villages on Bakassi
werealready established inthis period, includingAbana, AtabongEast and Atabong
West, Ine Akpak, Ine Atayo,Ine Odiongand EdimAbasi.
9.23 It was clear to the British mandatoryofficialsthat whateverthe exactposition as to
legal title to the BakassiPeninsula, the realities of the ties between Bakassi and Calabar could not and should notbe ignored or overridden: These matters are
recorded in NC-M 115 to NC-M 133.
9.24 These documents include protracted correspondence betweenthe British officialsin
Calabar, Eket, Buea, Victoria and Mamfeconceming the status of the Peninsula,
during the period 1932-1937. The problem of the status of the area had arisen as
a result of the taxationof the fishermen wholived and workedon the Peninsula, at
Abana, East andWestAtabong,Ine Odiong andother villages whichwere already
established at this time. Attemptswere being made to tax them, in duplicatofn
the efforts of the Calabar Division of the Calabar Province in the Nigeria
Protectorate,through the VictoriaDivision in CarneroonsProvince.
9.25 On 8June 1932, the Chiefsof Abana, Atabong, Ine Odiong, Ine Atayoand other
villagesin the Bakassiarea wroteto the DivisionalOfficerat Victoria regarding the
establishment of a Native Administration Mangrove &seme. Their letter gave
details as to the origins of the fishermen in theBakassivillages:
"The fishers at Ine Odiong come from James Town. Abana, from
Akpabuyo. Inua Abasi, from Ibino. Ine Atayo, from Enwang."
(NC-M 115)
9.26 The attempt to set up the Mangrove Rese~e, together with problems over tax
collection, led to a demonstration by the women of Abana (NC-M 116). As a
direct result of this demonstration, the British authorities took a keener in
the situation and the problems in this previously under-regarded part of their
administration. On 20 June 1932, the ~ivisional Officer of Victoria Division in
Southern Carneroons wrote to the Residentat Buea in.the following terms:
"3. It was also stated that theRio del Rey estuary formed the
boundary I.inebetween the spheres of the Calabar people and the
Birnbia-Bakweri.(emphasis added) 4. Although the fish town area is populated almost exclusively by
people from Calabar, the District Head claims on behalf of the
Bakwerithe land as Bakweriland. there [sic]are no Bakweri people
or natives of the Cameroons residentand little or no communication
between the fish townsand the nearest Bakwerivillages.
5. From the records in thisoffice itseems that the greater proportion
of the inhabitants have their main habitationand connections on the
Calabar mainiand and their occupation of the Fish Towns is only
seasonal and for fishing.
From June to October the majority of the settlements are deserted
either wholly or in part, the people returning to theirCalabar towns.
9. It may be suggested that a possible solution [to the problems of
administration of the area] will be found in the alteration of the
Administrative boundary. " (NC-M 117)
9.27 A further memorandum from the DistrictOfficerin Victoriato the Residentin Buea
dated 18 July 1932 emphasises thisview by stating:
"3. There werethen people of Calabar trading and fishing downthe
Coast,but no attempt at permanent senlement or to claim land as Efik
land wasmade. There was, it is clairned,a mutualagreementbetween
the Duke family in Calabar and William Billa [of Rurnby area] to
regard the Rio delReyestuary as the middleof the Mangroveswarnps
as a limit of control. . .
4. With the adventof the German administration thisroughboundaxy
became the inter colonialboundary, It is infact the naturalboundary
between thetribes of the CameroonsMountain and the Efi rribe.
8. Since my last report, 1 have received a letter from the heads of
families operating in fish towns. The letter Statesclearly their views,
which indicate that a Native Administration based on Victoria as
Headquarters [sic]will be difficultto operate successfully."(emphasis
added) (NC-M 118)9.28 This Memorandum effectively acknowledged that Bakassi was not in fact
administered from Victoriaand that it wouldbe mistakento attempt to do so. The
theme was resumed in a Memorandum dated 23 July 1932 from the Residentof
Cameroons Provinceat Buea to the Secretary of Nigeria's SouthernProvince, at
Enugu, fonvardingthe abovememoranda, which stated that "it may be better that
this area should be administered from Calabar" (NC-M 119). The preponderant
strength of the ties betweenBakassiand Calabar was repeatedlyacknowledged,on
a significantnumberof occasions, by the British authoritiesboth in the Protectorate
and in the British Cameroons.
9.29 A Memorandumdated January 1933from the Residentof Cameroons Provinceto
the Resident of Calabar Province (NC-M 120) expressly acknowledged that no
effectiveBritish administrationof the "Fish Towns"yet existed. That comment,
so revealingof the continuationof the pre-warstatus quo, is neverthelessperfectly
consistent with thecontinuingauthority in Bakassiof the Kingsand Chiefsof Old
Calabar. The Memorandumsetout the case forthe changein the boundary and for
administrationof the Fish Townsarea by Calabar Province in the followingterms:
"The Fish Towns are inhabited, mostly seasonably,by people who
havetheir normalplace of residence in theCalabar Provinceand when
they enter the Cameroons Province they do so purely to fish and
subsequently to retum to their homes. The areais difficultof access
from Victoria andany attempt to form any administrativeorganisation
has proved abortive. This is not surprising as such organisation as
they may have is centred in their homes.
The report'"'[by the District Officerof the area]-showsclearly the
attitude of the people and it appears from this that the only way in
whichefective administrationcan be introducedis by administration
from Calabar." (emphasis added).
9.30 That Report by the District Officer, Mr. P. Riley, dated 7 December 1932 (NC-M
121) ridiculed the "theoretical" administrationof Bakassi by the Victoria Native
16' NC-M 121 Authority, and at the sarne time indicated, so far as legal jurisdiction was
concerned, that theVictoriaCourts were not practice exercisinganyjurisdiction
in the Fishtownsarea:
"6. To attempt to administer these people from Victoria is in my
opinion ridiculous and the present position is entirely contrary to
modern re-organisation theories. ... 1 am aware however that
difficultiesarise when dealing with the transfer of an area from the
mandated territory; could not Fishtowns remain in the Cameroons
Province but be administered fromCalabar or Eket? It appears that
the majority of theinhabitantscome from the latter Division.
7. The advantagesof this wouldbe :
(1) The Fishtowns people would immediately come under the
control of NativeAuthorities which, if not actually their own,
wouldpossess similarityof custom and language. At present
theoretically they are under the Victoria Native Authority,
which is strangeto themboth as regardslanguage andcustom.
(2) It is the wish of the people themselves,
Tax collection would be rendered far easier. It is almost
(3)
twice the distance fromVictoriato the Fishtownsthan from
Calabar. ...
(5) They would come under the jurisdiction of their own
Courts and not as at present under both the Victoria and
Calabar Courts. Actually,as stated before,they never use
the VictoriaCourt."
9.31 The Resident in the Cameroons Province sent a letter to the Secretary of the
Southern Provinceof Nigeria, Enugu on 15 November 1933. The letter was sent
after research and surveysinto the Fishtownsarea had been carried out. It stated:
"2. The position is that theadministrativeadvantage oftransferring
the Fishtown Area to the Eket Division [in Nigeria] is admitted."
(NC-M 122)9.32 A Report on the Fishtown Area in February 1935 by Mr Bridges, the District
Officer for Victoria Division, and Mr Childs, his Assistant, further reveals the
attitude of the populationand the affiliationsof the people in the mid-1930s. This
independentofficialreport clearly showedthat the populationof the area were and
continued to thinkof themselves as Nigerian; that their allegiances, both cultural
and judicial, were to Nigeria; and that the British authorities firmly believed that
they should be administeredfrom Calabar or Eket in Nigeria and not from the
Carneroons:
"8. The regular inhabitantsof the Fishtowns come mostlyfrom the
Eket Division of the Calabar Province; a certain number, however,
come from Uyo District, and there are also various 'strangers'who
come from Bonny, Port Harcourt and other parts of Nigeria. The
population is almost entirely male, and the sole purpose of its
existenceis to fish andto fish hard.
9. Headmen exist in each settlement, being either proper Elders,
recognised as such in their home villages,or men speciallychosen to
act in this capacityin the Fishtownsettlementsonly. ...Smalldisputes
are settled where possibleby the Headmen, while serious matters are
referred to the parties' own Native Court on retum to their country
[Nigeria] ...
12. The Efiatsof Eket, who constitutethe largestindividualclan in
the area, hold an annualjuju meeting atAtabongWest [on Bakassi],
15. When questioned as to their views in regard to the
establishment of a court in the area, the universal reply was that
everyone who so desired, attended his own clan court, and in some
cases it was added thatsuch a questioncould not be answeredwithout
prior referenceto the proper elders 'at home'. No-one wishedto have
any dealings with the Isangelis, and it was abundantly evident that
everyonewished merely to be leftalone to fish in peace. ...It should
be mentioned here that it is customary for Court Messengers from
Calabar Province to serve summonses and executewarrants of arrest
in the Fishtowns without prior reference to the District Officer at
Victoria. ... 18. It will beobservedthat ...the distancefromOron to Abana [on
Bakassi]is only about 24 miles, while thatfrom the Ndian to Rio del
Rey is about 25 miles, owing to the deviation in the river, and a
further 12 miles or so to the Trojan. From Victoria to the Trojan is
a distance of approximately50 miles. It will thereforebe easily seen
that Oron is nearer the majority of the Fishtowns than are Ndian or
Victoria." (NC-M 123)
9.33 The Report continued by consideringproposals forthe future administrationof the
area:
"19. It has already beenpointed out that al1complaints or matters
out of which cases may arise are taken to the Fishtown 'Obongs'or
else are refened back in due course to the Clan Courts of the parties
concemed.0.. Administrative Officers from Victoria are not in a
position to hear complaintsor to verify census details.
25.
By far the greater proportion of the Fishtown peopleare Efiats
from the Eket Division of the Calabar Province, and, of the
remainder, the majority come from other parts of the same Province.
It would therefore appear best that the area should be administered
from Eket. In the firstplace, Oron is nearer to the Fishtownsthan are
either Ndian or Victoria. The District Officer [of Eket] is in a
position to trace the majority of taxdefaulters, and also to assess the
rates and amountsthat should be paid by regular Fishtown inhabitants.
He also possesses al1 facilities for enquiring into complaints and
tracing and verifying the action taken on them in the courts or
elsewhere.
26. The vast majority of the Fishtown inhabitantspay tax in some
part of the Calabar Province, and one of their standing grievancesis
that they have to pay tax twice."
9.34 The Report reachedthe followingconclusions,in the process rejectingboth the idea
that Fishtownscould be administeredfrom the Cameroon mandated territories and
any claim by the people of Isangele (Cameroon)to ownershipof the area: "27. The Fishtowns desire to be administered from the Calabar
Province and show no inclination to associate in any way with the
Calabar. It hardly appears likely that the Isangelis couldjustify any
claim to the ownershipof this area..
28. The foregoing factsand conclusions suggestas to the obvious
solution that the whole of the Fishtownsarea should be administered
from Eket[inNigeria]. If, however,for any reason connected with
the Mandate, it is consideredunsuitablefor an area formingpart of the
alternative solution lies in a joint administration by the Eket and
VictoriaDivisions."
~ 9.35 A note dated17January 1936(NC-M 124)emphasised thatthoseconclusionswere
"the same as those reached by every reporting officer since Mr Drummond-Hay
l
~ who made an assessmentreport in March 1923,namelythat the area is a 'noman's
l land' and is used by fishermen from the Eket clans..the important
thing, which differentiates themfrom their neighbours the Isangelis and Bakoles,
l is that the Fish Townpeople have their home towns in the Calabar Province, and
~
l attendtheir own clan courts". The inference couldnot be clearer: in so far as there
was anyxtemal administrationof the Bakassi Peninsula, it continued to be from
Nigeria, in very much the same wayas prior to 11March 1913.
l 9.36 The Reportby Mr Bridgeswas handed to the District Officerof Eket Division, Mr
Gorges, at a meeting with.Mr Bridges in March 1935. The report of the meeting
!
stated that:
"2. Mr Gorges agreed in principle that the Fishtowns would
probably be best administered fromEket, and proposes to request the
ResidentCalabar to send an AdministrativeOfficerfrom that Province
to write an intelligencereport on thee Fishtowndwellers
Gorges considers it essential to arrive at the definitenumberscoming
from each one of these districts. This work can, of course, only be
undertaken successfullyby an officer whocan get into direct touch
with the proper home townsof the Fishtown"(NC-M 125)9.37 The Resident in the Cameroons Province sent a lener to 'the Secretary of the
Southem Province of Nigeria, Enugu on 8 August 1935. The lener reponed the
results of discussions betweenthe District Officersfor Victoria(Mr Bridges), Eket
(Mr Gorges)and Kumba (Mr Childs), and stated:
"4. The conclusion reached by Mr Bridges and Mr Childs - a
conclusion with which it appears that Mr Gorges was in general
agreement, is that as the Fishtownsarea is occupiedalmost entirelyby
fishermenfrom the Calabar Province, and it is difficultto administer
as part of either the Kumba or Victoria Divisions, it should be
administered as pan of the Calabar Province." (NC-M 126)
9.38 This lener also reflected the growingconcern of the District Officersthat the tax
collected from the fishermen of the Fishtowns Area by Victoria Division was not
used at al1 for the benefit of the people of Fishtowns, but spent instead in other
parts of VictoriaDivision, a statementrepeated in a letter dated 9 May 1936(NC-
M 127). The letter also showedthe increasingconcem that any proposals for an
alteration to the Mandated Territory would arouse suspicion at the Permanent
MandatesCommissionin Geneva, anda feeling thatfor this reason it wouldappear
more appropriate to seek a less forma1modus vivendifor the administrationof the
area.
9.39 Concem about the possible reaction of the Permanent MandatesCommissionto a
proposed changeof the boundary and administration of the Bakassi Peninsula is
expressed ina hand-writtennote dated 10September 1935statingthat "theResident
thinksthat the P[ermanent] M[andates] Commissionmight think we attach special
strategic importanceto the ~ishtowns"(NC-M 128).
9.40 The Resident in the Cameroons, in a letterdated 9 May 1936 to the Secretary of
the Southern Provinces at Enugu, clearly contemplatedthe possibility of avoiding
difficultiesover the mandate and yet administeringthe "fishtowns"from Calabar: "4. 1 would go further and suggest that if there would be no
difficultiesas regards MandatedTerritory vis-à-vis theProtectorateof
Nigeria, the fishtownsshould become part and parcel of the Calabar
Province as an extension of Eket Division. 1 advocate this, not so
much in the interestsof taxationas of general administrativecontrol."
(NC-M 127)
9.41 On 28 May 1936, the Resident in the Calabar Province expressed hisagreement,
1
1 stating that he could "see no good reason why the Fish Towns should not be
administered by the Resident Calabar" (NC-M 129). Although the mandate and
protectorate authorities seemto have been in some doubt about the formal legal
position in relation to the boundaries of the mandated territory, British
administrative opinion clearlydid consider that the UnitedKingdomwasentitled to
administer the Fishtownsas part of the Calabar Province (manuscript note dated 7
July 1936:NC-M 130). There is also evidencethat the British authoritiesbelieved
that they did have the right and legal authority to transfer Fish Townsto Calabar
Province (see manuscriptnotes at NC-M 131).
9.42 The question was referred to the Governorof the Nigerian Protectorate,at Lagos,
in a letter dated 27 July 1936from the Secretary at Enugu. The letter also stated
that "the ideal arrangement would be for the Fish Townsto be transferred for al1
purposes from the Cameroons to Calabar Province" (NC-M 132). The clear
intention was to complete thede facto administration by Calabar Province with
recognition, dejure, of the point which atleast some of the British administration
had lost from sight in the years since 1913, namely that legally the Bakassi
Peninsula remainedpan of Nigeria and shouldbe recognisedas such.
9.43 On 10 September 1936, the Chief Secretary at Lagossent a letter to Enugu stating
that "there are certain objections tothe transferof a portion of Mandated territory
on,the Coastto a Province of Nigeria" and suggestinga specific solution to the
problemof double-taxation,which included thecollectionof,taxesfrom the Bakassi area by the authoritiesof the Calabar Province (NC-M 133). This informationwas
passed on to the DistrictOfficerson the ground.
9.44 It is ironic that the District Officersshould have sought a changewhich, had they
understood the me legal status of Bakassi, would not have been considered
necessary. In the context of a situation in which the British were administering
both sides of the boundary, it in fact made little practical differenceto either the
local officialsor the local populationon the ground which side of the boundary the
BakassiPeninsula lay. In al1practical respectsthe boundary continuedto lie, as it
had alwaysdone, not on the Akpa Yafebut on the Rio del Rey.
D. The patternof administration
9.45
In addition to the developing British administration and the role in Bakassi of
Calabar, Eket and the traditionalrulers of Calabar, the pattern of administration as
it developedin this period further establishes thatBakassiand itspeople continued
to constitutepart of the Protectorateof Nigeria. The populationof the Peninsula
wasgrowingin thisperiod, as increasingnumbersof fishermenmovedintothe area
from the Calabar region in order to exploitthe abundant fish stocks. BeforeWorld
War 1 the settlementshad been predominantly seasonal. As the settlementsgrew
larger and more numerous, however, an increasing proportion of the population
became permanently resident inthe Peninsula al1the year round.
9.46 Administrationand govemanceof the area camevirtually exclusivelyfrom Nigeria.
A substantial body of evidence, throughout the period from 1913 to 1960,
constitutes proof that Bakassi remained organically integrated within the Nigeria
Protectorate by a wide range of ties - traditional, administrative, economicand
social. 9.47 As the population of both Bakassi and of the Nigeria Protectorate as a whole
increased, Local Authority legislationbecarne increasingly specific. As will be
shown below, the distinctions which had troubled the District Officersduring the
period of the Mandate simply fell away during the period of United Nations
trusteeship, when local Nigerian legislation increasinglymade specific referenceto
settlementson Bakassi.
(i) Local Government Administration
9.48 Nothingin the regionaland local govemmentlegislationof the Nigerian Colony and
Protectorategives any support to the Cameroonian contention that title toBakassi
vested after 1913 in the Cameroons. On the contrary, the legislative record
supports the conclusion thatBakassi continued to be administered throughoutthe
period up to 1960as part of the Nigeria Protectorate.
9.49 The Southem Nigeria Order in Council of 27 December 1899 formed the
Protectorate of Southem Nigeria (see above, paragraph 6.68 (5)) out of what had
previously been the Niger Coast Protectorate together with the territories
administered by the RoyalNiger Company. The text of Section 2 of the Order
definedthe limitsof the newProtectorate asbeing boundedby a "linecommencing
..at the mouth of the Rio del ReyCreek, the right bank of which it followsto the
head of the Creek" (NC-M 31).
l
9.50 On 1 January 1914, the northem and southem parts of Nigeria were amalgamated
into the single Protectorateof Nigeria (above,paragraph6.68 (10)). and the system
of local govermnenthitherto prevailingin the North, with its successfulsystemof
"Native Authorities". was extendedto the South.
9.51 ~ovemment Notice No. 99 of 23 December 1915 (NC-M 134) defined the
administrativeboundariesof Calabar Province andCalabar Division. The Province extended to the Nigeria-Cameroon frontier in the East (a frontier which was not
definedin the Notice). The Calabar Division, an area of about 3,619 square miles
(5,790 square kilometres), was defined as stretchiig to the Nigeria-Cameroon
boundary inthe East, again without definingthat boundary.
9.52 In 1922 the British introduceda systemof indirect rule, using "WarrantChiefs",
the local traditional rulers, to impiement the administration of the country on the
ground. Also in 1922, by Govenunent Notice No. 71 of 3 August 1922 (NC-M
135), Eket Division was created out of Calabar Division, with its headquarters at
Eket.
9.53 The existingsystemof indirect rule was supersededby the nativeauthority system
introducedby the NativeAuthorities Ordinanceof 1933 (NC-M 136).
9.54 By 1948,the Eastern Regionof Nigeria (SouthernNigeria havingbeen dividedinto
two halves) featured 217 native authorities and 300 subordinate authorities. This
over-burdenedsystemof local govemmentwastherefore rationalisedby the Eastern
Region Local Govemment OrdinanceNo. 16 of 1950.'62 This set up a structure
of county councils, district councilsand local or urban councils.
9.55 Aspart of this process, the AkpabuyoCounty Council (Establishment)Instrument
1953 (NC-M 137)createdAkpabuyoCounty Council, including theLocal Council
of Ikang. Withinthe area of Ikang Local Council were listed the villages of Ine
Ikoi, Ine Nkane Okure 1, Ine Nkane Okure II, Ine Ikang and Ine Akpa Ikang, al1
of which are villages locatedon Bakassi.
9.56 The three-tier system of local govenunent wis replaced in 1955 by a two tier
systemunder the Eastern Region Local GovemmentLaw.!63
16' A copyhasbeenlodgedwith theCourt.
A copyhasbeenlodgedwith theCourt. 9.57 Eastern Region kgal Notice No. 267 of 1959for Calabar Division (NC-M 138)
listed the Bakassivillages of Ine Ikoi, Ine Akpa Ikang, Ine Nkane Okure 1and Ine
Nkane Okure II under Ikang Local Council.
9.58 The local administration of the area throughout the period after 1913 thus
demonstrates that Bakassi remained, for administrative purposes, organically
integratedwithin Nigeria.
1 (ii) Legaljurisdiction
9.59 Throughout the period 1913-1960,the people living on the Bakassi Peninsula
continued to attend Nigerian courts and to fa11within the jurisdiction of these
courts. Thus, for example, in 1915a letter from the District Officer at Calabar
(NC-M 139)makes it clear that the Efiksfrom Archibong "havealwaysbeen in the
habit of going to Ikot NakandaCourt", which, as can be seen on AtlasMap 35, is
situated well inside Nigerian territory.
9.60 The Native Courts were established in the first years of British mle under their
system of indirect rule. The local traditional mler (Warrant Chief), dkctly
subordinateto the District Officer,acted as judge in the NativeCourt.
9.61 A notice of 7 April 1918(NC-M 140)tells of a case between Abana Ntuen and
EkpenyongIra. The notice stated that "Abana is a separate Townby herself and
shall have nothing to do with Usak Edet, any inhabitants of Abana having a
complaint or complaints should go to Calabar, Oron or AkpabuyoPlantationand
lay suchcomplaints", thus indicatingthat Abanawasa permanent settlement within
the Nigerian jurisdiction.
9.62 The Native Authorities Ordinance of 1933 (NC-M 136) introduced new native
courts organised along similar linto the local native councils. These sewed small, natural social groupings, and the acknowledged headof the clan held the
position of President of the Court. Withinthejurisdiction of the Effiat-MboCourt
in 1941, for example, was the seulement of Abana, located on the Bakassi
Penimula (NC-M 141).
(iii)Taxes
9.63 There is clear evidencealready citedabove(and see NC-M 115to NC-M 133)that
the people of this region were paying taxes toCalabar and Eketauthorities without
protest, and these Divisions withinNigeria were collectingthe taxes.
(iv) Schools
9.64 A Methodist school was established at Abana on Bakassi in 1937, and was
administeredand inspectedfrom Eketas part of the educationsystemof the Calabar
Province.
9.65 A census of the area was conducted under the auspices of Eket Division i1953
(NC-M 142). This included theBakassivillagesof Ine Ikang, IneAkpa Ikang, Ine
Ekoi, Ine Nkani Ekure, Ine Utan and Ine Utan Asukwowithin Calabar Province. (vi) Ties with the traditionai authonties of Old Calabar continued uninterrupted
9.66 Nowhere were the continuing ties between Bakassi and the restof the Nigerian
Protectorate more obviousthan in the authority over the BakassiPeninsula of the
rulers of Calabar. The role of the traditional mlers in Bakassi continued
unintempted.
9.67 In the eastem region of Nigeria, which included Calabar and Bakassi, social
institutions were complex. There were elders, guilds of title holders and
associationssuchas the Ekpe Fratemity,whichwaspredominantin the area. There
were also various religious groupings and a system of "native" judicial
administration. This indigenesystemof govenunent workedreasonablywell, and,
for a range of reasons alreadycited, the British administrationpreferred "indirect"
mle. They had indeed never even attemptedto impose a fullsystemof direct mle,
whichwouldclearly haveovertaxed theresourcesof theprotectorateadministration.
The British therefore mled mainly through designated chiefs, called "Warrant
Chiefs", who, directly siubordinateto District Officers,also acted as judges in the
Native Courts.
9.68 The British administrationlaid no clairnto indigeneland, which remainedin native
occupation, held by the Kings and Chiefs, as traditional rulers on trust for their
people. In view of the remotenessof Bakassi, it is clear that the British authorities
relied on these Chiefs for the day-to-day administration of the area. The
correspondencealready citedabove(NC-M 115to NC-M 133)revealsboth thatthe
British found it difficultto gain adequateaccess to the BakassiPeninsula and also
l
that the Britishauthoritiesrecognisedthecontinuing allegianceandties whichbound
virtually the entire population of the Peninsula to the Kings and Chiefs of Old
Calabar, in very much the same wayas had been the case prior to WorldWar 1.9.69 The 1935 Report by Mr Bridges, District Officer of the Victoria Division
emphiisised the continuing role of the traditional authorities and clan courts, at
Calabar, stating (NC-M 123):
"19. It has alreadybeen pointed outthat al1complaintsor rnattersout
of which cases may arise are taken to the Fishtown 'Obongs'or else
are referred back in due course to the Clan Courts of the parties
concerned ... Administrative Officers frorn Victoria are not in a
position to hear cornplaintsor to verifycensus details."
9.70 The Native Authorities Ordinance of 1933 (NC-M 136) established native
authofities in the Protectorate of Nigeria, creating an administrative role for the
traditionalchief under the supervisionof the Governor, which includeda role in the
maintenanceof order and good government. The village Chiefs were reliedupon
bythe British authorities throughout this periodto carry out public duties concerned
with the welfare of the people the prevention of crime and the administration of
justice.
9.71 The Etuboms' Councilat Calabar, which constituted the Native Authorityin this
area, consisting of the Obong of Calabar and the elected Heads of the villages,lm
at al1times contained at least one representativefrom the communitiesof Abana,
Atabong or Archibong on Bakassi. The Council functioned unintenuptedly
throughout the period from 1913 to 1960 and maintained authority over the
Peninsula and the whole area within the traditional jurisdiction of the indigenous
authorities at Calabar. The Council continuesto sit todayat the Obong'sPalace in
Calabar and still retains a significant role within the administrationof this part of
the Nigerian Federation.Is
9.72 The importanceof the role of the Chiefs in local society throughout Nigeria was
recognised in the 1959 ProvincialAdministrationLaw which created, interdia, a
lm See above,para.4.20
ls See below,paras.10.3- 10.47 House of Chiefsas a legislativeinstitutionwithinthe Nigeriaconstitution. Thiswas
not simply a matter of preserving the existing role of the traditional rulers, but
actually gave a new, extended role in the provincial govermnent. The House of
Chiefs compnsed, on an exoflcio basis, al1the traditional rulers of the Eastem
Region, first class chiefs appointedto represent the provincesand 55 other chiefs,
including the Obong of Calabar. Its role, on a local legislative basis, was
equivalentto the Senate in the Federal Constitution.
E. The survival of the original title to Bakassi
1 9.73 For the reasons set out in Chapters 6, 7 a8dabove, and in the present Chapter,
(1) in and before 1913 the Kings and Chiefsof Old Calabar possessed
sovereigntyover the BakassiPeninsula; and
(2) the Anglo-German Treatyof 11 March 1913, in so far as it purported to
transfertoGermany a territorial title whichGreat Britain did not possessand
which it had no power orauthority to transfer, did not transfer territorial
sovereignty over BakassitoGermany. The statusquo ante wasundisturbed,
and title accordingly remained vested in the Kings and Chiefs of Old
Calabar.
9.74 The subsequent history of Bakassi did not serve to transfer the sovereigntywhich
the1913Treaty itself was ineffectivtotransfer.
(1) Generally, so far as the United Kingdom was concemed, any apparent
acceptance of or acquiescence in the purported transfer of Bakassi to
Germany in the years between 1913 and 1960 was ineffectiveto overcome
the defects of that purported transfer, based as they were on the United
Kingdom's own wrongful conduct. Two well-establishedprinciples lead to that conclusion: the first is that a State cannot benefit from its own wrong
(nulluscommodumcaperede sui injuriapropria),and the second is that
legal rights cannot originate fromwrongful act(ex injuriaiusnonorirur).
As the Umpire in TheMontijoCase(1875 succinctly stated: "No one can
be allowedto take advantage of his own~rong".'~
The UnitedKingdom'sconduct after 1913 was, inrelationto Bakassi,tainted
by the impropriety of its p&ported transfer to Germany of territory which
was not the United Kingdom's to mnsfer. The United Kingdom did not
have anygeneral authority,by virtue of the Protectorate arrangements,to act
on behalf of and to commit any relevantNigerian Rulersor other authorities
to such a purported transfer of territorial sovereignty,and no such authority
was at any tirne givenby those Rulersor authoritiesto the United Kingdom.
Acts of administration which might have been undertaken by the British
authorities afte1913 are tainted by that original unlawfulconduct, and do
not bind Nigeriain relation to the question of title to Bakassi. The United
Kingdom's unilateral acts cannot cure the underlyingineffectivenessof its
purported transfer of sovereigntyover Bakassi awayfrom those in whom it
wasrightfullyvested, inconsistentlywithitstreaty with them. Subjectto that
overriding consideration, the following further considerations show that
events after1913 did not serve to effect any transfer of sovereigntyaway
from the Kings and Chiefsof Old Calabar or the emerging entityof Nigeria.
(3) The First World War broke out oniy 16 months after the conclusion of the
1913 Treaty; and Germany's administrationof Kamenin was brought to an
end in 1916. During that short pre-war and early-war period there was
insufficientime for any significantpattern of German activities.in Bakassi
'66 Moore.Hisroryand DigeofrheInremarionalArbirrarionsIo whichthe UnitedSIarerhPany.na
Vol.2.pp.1412& 1437. tohavebeen establishedso as to havehad the effectof overcoming thedefect
in the purported transfer of Bakassito Germany.
(4) Sirnilarly, during that short period British (and Nigerian) actions were
insufficientto constitute acquiescence in thepurported, but defective, transfer
of title such as to defeat the continuing lawfultitle of the Kings andChiefs
of Old Calabar.
(5) From 1916 to 1919Bntain and France occupied German Kamerun, but this
occupation did not give either of those two States any authority to alter the
sovereignty over Bakassi, whether by directly purporting to do so, or by
implication from their conduct in relationto Bakassi: the nature of their
authority (asbelligerentoccupants)overthat Germanterritoryprecludedtheir
acts from having effects which could Vary sovereignty over parts of that
territory either by divesting Germany of its sovereignty or by acquiring
sovereigntyfor the benefit of Germany.
The War brought about the lapse of the Anglo-German Treaty of March
(6)
1913, and the Treatywas not revivedafter the Warunder Article 289 of the
Treatyof Versailles. Havinglapsed, no subsequent actioncould be regarded
as havingbeen in implementationof it.
(7) Further, by virtue of Articles 118 and 119 of the Treatyof Versailles1919
Germany renounced its rights and titles to inter alia its West African
territories, in favourof the Principal Allied and AssociatedPowers. Given
the ineffectivenessof the Treaty of March 1913 to transfer title over the
BakassiPeninsula to Gennany, those Articles gaveno power tothe Principal
Allied and Associated Powers totake any action having the effect of
changing the sovereigntyover the Peninsula.(8) The situationwassubstantiallyunchangedforthe period between 1919(when
Germany was deprived of its West African territories) and 1922 when the
Mandates for Britishand French Cameroons enteredinto force. During that
short period neither theUnited Kingdomnor France possessed theauthority
to divestthe (Nigerian) holder of sovereigntyoverBakassi.
(9) With the entry into force of the Mandates, the situation continued
substantially unchanged. Legally,the UnitedKingdomas Mandatory Power
did not have the right to alter territorial sovereigntyover British mandated
territories; and in practice the British mandatedterritory of Cameroons was
administered as partof the NigeriaProtectorate,so that, while the distinction
between mandated and protectedterritories was acknowledgedin principle,
in practice it was not so sharp. There was no practical day-to-day needfor
the British or local administrationto distinguish between what mighthave
been former German territory and what was British protected Nigerian
territory. Conduct in relation to Bakassi would in practice have been the
same whether it was regarded as former German territoryor whether it was
British protected territory.
(10) With the termination of the Mandates in 1946 and their replacement by
TrusteeshipAgreements, the situationremained essentiallyunchanged. The
United Kingdom, as Administering Authority,still lacked the power and
authority to add to the territorial sovereignty of .the area under its
administiation, or by its conduct to give legitimacy to the purported and
unlawfultransfer in 1913of Bakassito Germany.
(11) Similarly, the United Kingdomat no tirne since 1913 had the power, as the
Protecting State, to acquiesce-inor otherwise accept the purported tra~fer
of Bakassi to Gennany in 1913, or the subsequent consequencesof that
purported transfer. At al1relevant times the United Kingdom, whether as
Protecting State over the Protectorate,,or as the occupant of German possessions in WestAfrica, or as one of the Allied and AssociatedPowers,
or as the Mandatory Power or Administering Authorityin relation to the
Mandated territory or the Trust Territory, did not have power directly or
indirectlyto deprive Nigeria of its sovereigntyoverBakassi, andin particular
did not have the power by its conduct to give legitimacy to its previous
unlawfulconduct.
(12) Throughout the period from 1913to the present the various States which
were, at least partially,16'in the position of successor States to the former
German interest in West Africa obtained, upon their succession,no better
rights than their predecessor had. Thus Cameroon, upon the integrationof
Southem Cameroon into Cameroon in 1961,obtained nobetter rights than
the United Kigdom, as the Administering Authority,had possessed; the
United Kingdom as Administering Authority obtained nobetter rights than
it had previously possessedas the MandatoryPower; as Mandatory Power
it obtained no better rights than the Allied and Associated Powers had
acquired, and they in tum had obtainedfrom Germanyunder the Treaty of
Versailles no better rights than Germany had possessed; and as shown in
Chapters 8 and 9 above,Germanyhad acquiredno rightsto sovereigntyover
the Bakassi Peninsulaby virtue of the Treatyof 11 March 1913or any other
agreement.
(13) Whatevermay havebeen the natureof Britishacts in relationto Bakassifrom
1913onwards,the peninsula in practice effectively remainedpart of Nigeria
throughout the period upto Independencein 1960, and the authority of the
NigerianKingsand Chiefsof Old Calabar providedcontinuity throughoutthe
period, for much of which it was virtually the only real authority exercised
there.
'" StatesexercisingMandat. ndAdministeriAuthoritiofTmstTerrimries,reonlytoa limitedextent
'successorStates'. (14) After Independence,Nigeria exercisedsovereigntyin Bakassi, demonstrating
the continuityof its administrationof the area since before theestablishment
of the Protectorate. See further Chapter 10 below.
9.75 The title to Bakassi which, for the reasons given, was not affectedby the Anglo-
German Treatyof 11 March 1913 or subsequentevents,wasoriginallya title vested
in the Kings and Chiefs of Old Calabar. Their rights came over time to be
absorbed into the emerging entity of Nigeria (still subject to United Kingdom
protection). Internationally it is now Nigeria which is vested with the rights of
territorial sovereignty originally vested in the Kings and Chiefs of Old Calabar.
Their role, however,is still important. Bothunder the Protectorate,and still today,
the various Constitutions of Nigeria have recognised thelegitimate role of local
chiefs and nilers as part of the constitutional structureof the State.l
NIGERIA'SORIGINALTITLETOTHEBAKASSIPENINSULA
WASCONFIRMEDAFTERINDEPENDENCE BYHISTORICAL
CONSOLIDATIONA , CQUIESCENCE ANDRECOGNITIONA. Introduction
(i) The Legal Situation at the Time of Independence
10.1 The title of Nigeria to Bakassiwas originallya title vestedin the Kingsand Chiefs
of Old Calabar. The original title of Old Calabar was not affected by the
Anglo-German Treaty of 11 March 1913 (as explained in Chapters 8 and 9) and
was eventually absorbed in the emerging entity of Nigeria. By the time of
Independencein 1960 the originaltitleto Bakassivestedin Nigeria as the successor
to Old Calabar.
(ii) The Bases of the Nigerian Title
10.2 The four bases of the Nigerian claim to title over the BakassiPeninsula are as
follows:
Long occupation by Nigeria and by Nigerian nationals constituting an
(1)
historical consolidationof title and confinning the original title of the Kings
and Chiefs of Old Calabar which title vested in Nigeria at the time of
Independencein 1960.
(2) Effectiveadministrationby Nigeria, acting as sovereign,and an absence of
protest.
(3) Manifestationsof sovereigntyby Nigeria together with the acquiescence by
Cameroon in Nigerian sovereignty owr the BakassiPeninsula.
Recognition of Nigerian sovereigntyby Cameroon.
(4)10.3 These four bases of claim apply both individuallyand jointly. In the view of the
Nigerian Govement each of the basesof title would besufficient onits own.
10.4 For the sake of clarity it may be emphasized that the claims of Nigeria do not
operate on the premiss that the Bakassi Peninsula constitutes terra nullius,that is
to say, territory available for occupation. The legal situation appears to the
Respondent State to be essentially similar to that obtaining in the Minquiersand
Ecreho~'~c ase. The essence of the matter is conveyed in the following two
passages from the Judgment in that case;
"BothPartiescontendthat theyhaverespectivelyan ancientor original
title to the Ecrehos and the Minquiers, and that their title has always
been maintained and was never lost. The present case does not
therefore present the characteristics of a dispute concerning the
acquisitionof sovereigntyover terra nullius.
"What is of decisive importance, in the opinion of the Court, is not
indirectpresumptionsdeducedfromeventsin theMiddle Ages, butthe
evidence which relatesdirectly to the possessionof the Ecrehos and
Minquiers groups. "170
10.5 This emphasis on evidence of possession in situations in which the territory in
dispute is not terra nulliusis also to be found in the Judgmentof the Chamber in
the Land, Island andMaritime FrontierDi~pute'~' case. The Judgment is of
particular assistance for presentpurposes because the Chamber takes care to place
the principle of uti possidetisjuris, together with its variants, in the appropriate
legal perspective.
10.6 The Judgment makes clear the fact that, when the uti possidetis dispensation
producesno decisiveoutcorne,the conductof the parties sinceIndependence,is "of
I.C.J.Rep1953p.47
lm ibidp.53
17' ibidp.57
I.C.J.Rep1992p. 351 particular importance".ln In this context the Charnber in several significant
passages placesemphasison the qualifyingrole of acquiescence andrecognitionin
relation to the principle ofipossidetis juris.The point is explainedin three key
passages as follows:
"There has also been some argumentbetween the Parties about the
'critical dateinrelation to this dispute. The principleutipossidetis
jurisis sometimesstated in almost absoluteterms, suggesting that the
position at the date of independenceis alwaysdeterminative;in short,
that no other critical date can arise. As appears from the discussion
above, this cannot be so. A later critical date clearly may arise, for
example, either from adjudicationor from a boundary treaty. Thus,
in the previous Latin American boundary arbitrations it is the award
that is nowdeterminative,eventhough it be based upon a view of the
uti possidetisjurisposition. The award's view of the uti possidetis
jurisposition prevailsand cannot now be questionedjuridically, even
if it could be questionedhistorically.So for such a boundary the date
of the awardhas become a newand later critical date. Liewise there
can be no question that the parts of the El SalvadorlHonduras
boundary fixedby the GeneralTreatyof Peace of 1980now constitute
the boundary and 1980 is now'the critical date. if the utipossidetis
juris position cambe qualified by adjudicationand by treafy, the
question then anses whetherit can be qualifiedin other wqs, for
example, by acquiescenceorrecognition.Thereseemstobeno reason
in principle why these factors shouldnot operate, where there is
suflcient evidence to show that the parties have in effect clearly
accepteda variation,orut leastan intepretation, oftheutipossidetis
juris position."' (emphasis added)
"Asalready explained (paragraph 67 above), the Chamberdoes not
considertharthe effecrof the applicationof theprinciple of the uti
possidetis juris inSpanish Americawas to freeze for al1 rime the
provincialboundarieswhich, withthe adventofindependence,became
thefrontiers betweenthe new States.It was obviouslyopen to those
StatesroVarythe boundariesbetween them by agreement;and some
forms of activify, or imctivis: might amount to acquiescencein a
boundaty other than that of 1821. Even on the hypothesis that
Honduras's analysisof the legal effect, under Spanish colonial law,of
the grant of the Citalh titulo ejidais corrected, so that from 1776
'" ibid.p. 565, para.345
17' ibid.pp.408-9, para.80 onwardthe provincialboundary remainedto the south-westof the land
comprised in that title (and followed the line E-F-G'-H-J-A), the
conclusion does not followthat that is the course of the international
frontier today. The situation was susceptible of modification by
acquiescence inthe lengthyinteweningperiod; and the Charnberfinds
that the conduct of Honduras from 1881 until 1972 may be regarded
as amountingto such acquiescence ina boundary correspondingto the
boundary between theTepangüisir landsgranted toCitala and those of
Ocotepeque. (emphasis added)
"In the present case both Parties have argued their respectiveclaims
with regard to the operationof the utipossidetisjuris on the basis, in
effect, that this is a principle the applicationof which is automatic:on
independence, the boundariesof the relevantcolonial administration
divisionsare transformedinto international frontiers. In thefirstplace,
it shouid not be overlookedthat Spanishcolonial divisions inSpanish
America did not individuallyhaveany 'original'or 'historietitles, as
those concepts are understood in internationallaw. The original title
belonged exclusively to the Spanish Crown, not the interna1
administrative subdivisionsestablished by it; and it was equally the
Spanish Crown which had sovereigntyof the colonial territories.
Secondly, as the Chamber's examination of the sectors of the land
boundary has shown,in practicethe operationof the principle is more
complex. Wherethe relevantadministrative boundary was ill-dejïned
or its position disputed, in the view of the Chamberthe behaviourof
the two newlyindependentStatesin theyearsfollaving independence
may well sente as a guide towherethe boundaty was, either in their
sharedview, or in the viewacted on by one andacquiescedin by the
orher (cJ paragmphs 64, 80 and 205 above). This aspect of the
matter is of particular importance in relation to the status of the
islands, by reason of theirist~ry."~~~(emphasis added)
10.7 In the submissionof the Nigerian Govenunentthese statementsof principle apply
to the circumstancesof the Bakassi Peninsula in the period after the Independence
of Nigeria on 1 October 1960. The Republicof Cameroonbecame independenton
1 January 1960.
174 ibid. pp 408-para80
ibidp.565.para.345 (Ci) The Definition of the Bakassi Peninsula
10.8 For presentpurposes the Bakassi Peninsula has thelimits marked in the Atlas on
Map 36. These limits more or less coincide with the boundary adoptedin the
Anglo-German Agreement concluded on 14 April l893 (NC-M 27), but with a
l northward extension to the Akpa Yafe,by wayof the creek two kilometres north-
east of Archibong. The particulars of this northward extension are set out in
l
1 Chapter 11.
10.9 In this connection it is relevant tokeep in mind the distinction between a forma1
basis of title, for example, a description of a boundary in a treaty, and the effect
~
l of acts of administration, which havethe role of showingthe territorial expanse of
a titleAsthe Chamber of the Court observed in the Frontier Disputecase:
1
"Apart from the texts andmaps listedve, the Parties have invoked
in support of their respectivecontentions the 'colonialeffectivités',in
other words, the conduct of the administrative authoiities asproof of
the effective exerciseof territorial jurisdiction inthe region during the
colonial. period. For Burkina Faso, the effectivitéscan support an
probative value has t'be assessed they must be systematicallyheir
compared with the title in question; inno circumstancescan they.be
substituted for the title. For its part, Mali admitsthat in principle the
effectivitéscannot be brought into operation wherethey are contrary
to the text of a treaty, but argues that in a situationwhere there is no
boundary described inconventionalor legislativeform, it is necessary
to ascertainthe boundary byother methods,and an investigationof the
effectivithenbecomes essential. The roleplayedin this casebysuch
effectivitésis complex, and the Chamber will have to weigh carefully
the legal force of these in each particular instance. It must however
stateforthwith, in general terms,what legalrelationshipexistsbetween
such acts and the titles on which the implementationof the principle
of utipossidetis is grounded. For this purpose, a distinction must be
drawn among severaleventualities.Where the act correspondsexactly
to law,where effectiveadministrationis additionalto the utipossidetis
juns, the only role of effecis to confirm theexerciseof the right
derived from a legal title. Where the act does not correspond to the
law, where the territory which is the subject 'of the dispute is
effectively administeredby a State other than the one possessing the legal title, preference shouldbe givento the holder of the title. In the
eventthat the effectivitédoes notco-aisr with any legal rirle,ir must
invanably be takeninto consideration.Finally,there arecases where
the legal title is not capable of showingmc* the rerriroriolerponse
to whichit relates. Theeffectivitéscan thenplay an essentialrole in
showing hm the title is interpreted in pra~tice.""~ (emphasis
added)
10.10 This passage was adopted by the Chamber of the Court in the Land. Island and
MaritimeFrontierDispute case.ln
(iv) The Entitlement of Nigeria is not affected by the Maroua Declaration
10.11 On 1 June 1975 the Heads of State of Cameroon and Nigeria adopted theMaroua
Declaration, which, in material part, reads as follows:
"During the meeting held at MAROUAfrom May 30th to June 1st
1975, the two Heads of State of CAMEROONand NIGERIA agreed
to extend the delineation of the maritime boundary between thetwo
countries from Point 12 to Point G on the AdmiraltyChart No. 3433
annexedto this Declaration.
The delineatedboundary adopted by the two Heads of State is defined
as follows:
The two Heads of State further reafirmed their cornmitment to
freedomand security of navigationin the CalabarICrossRiver charnel
of ships of the two countries as definedby InternationalTreaties and
Conventions." (NC-M 143)
10.12 The Declaration was not ratified by the Supreme Military Council. A few weeks
afkr this Declaration was signed, General Gowon was deposed by Murtala
17' I.C. J.p. 1986p. 586. para.63
ln I.C. J.p. 1992 p. 398. para. 61 Muhammed. During the short period thathe held officebefore hisassassination,
he was, as wouldbe expected, preoccupied withother affairsof state, and the fact
of the non-ratificationwas not communicatedto Cameroon. Onhis death, he was
replaced as Head of Stateby General Obasanjo.
10.13 The Govemmentof Nigeria regards the Declaration as lacking legal validity and
expressedthis opinion in negotiationswith Cameroon sometirneago. At a meeting
between thetwo Heads of Stateon 7 to 9 August 1977, General Obasanjoinformed
President Ahidjo that Nigeria did not accept the Maroua Declaration. General
Obasanjo also told President Ahidjo that, as NigerianHead of State, he was a
trustee of Nigerian property, both land and territorial waters, and hecould not
alienate them or give them away unconstitutionally. He explained that the
Declaration had not been ratified by the Supreme Military Council, and was
therefore regarded as a nullity by Nigeria. President Ahidjo asked what was
therefore to be done. General Obasanjoreplied that, since President Ahidjowas
not prepared to re-negotiate,the matter should be left to be dealt with by their
successors, and theissue was left open.
10.14 Since then, in bilateral summits between heads of state and between boundary
experts, Nigeria has confimed that the Maroua Declarationwas not ratified and
was therefore not binding on Nigeria. However,Cameroon has continued to insist
that it is valid.
10.15 In anyevent, there is compelling evidencethatthe subject-matterof the Declaration
did not extend to the question of title to land territory. The evidence includes the
followingdata.
(1) The text of the Declaration itself makes no referenceto the disposition of
land territory. (2) The brief on the ,forthcomingmeeting on 31 May 1975 prepared by the
Ministry of Extemal Affairs of Nigeria, dated 20 May 1975 (NC-M 144)
refers exciusivelyto issues relating to the Calabar Channel.
(3) The text of the agreed Communiqué (dated1 June 1975) (NC-M 145)
confirmsthat no issues relatingto land territory were on the agenda.
(v) The Relevance of the Critical Date
10.16 The role of the critical date is variable andthe doctrine of intemational law does
not favour the view that in each case there will be found,a single, all-purpose,
critical date. A fairly typical view is as follows:
"In any dispute a certain date, or several dates, will assume
prominence in the process of evaluating the facts.The choiceof such
a date, or dates, is within the province of the tribunal seized of the
dispute and willdepend in some circumstanceson the inevitablelogic
of the law applicableto the particular factsand, in other cases, on the
practical necessity of confiningthe process of decision to relevantand
cogent facts andthus to acts prior to the existenceof a dispute. In the
latter context the tribunalis simplyemployingjudicial technique in the
use of evidence and more especially the exclusion of evidence
consistingof self-se~ing acts of parties at a stage whenit wasevident
that a dispute existed. Of course, evidence of acts and statements
occurring after the critical date may be admissibleif not self-sewing,
asin the case of admissions against interest. There are several types
of critical date, and it is difficult andprobably misleadingto formulate
general definitions: thefacts of the case are dominant (including, for
this purpose, the terms of the special agreement empowering the
tribunal to hear the case) and there is no necessityfor a tribunal to
choose any date whatsoever.In many cases thei will be severaldates
of varying significance."17'
17' Brownlie.Principl(1998)5thed.,atp.128 10.17 For present purposes, it is relevant to indicate the date, or period. at which the
dispute relating to thekassi Peninsulactystallised in order to assess the role of
historical consolidation and, more particularly, the elements of acquiescence and
l
i recognition. The Memonal of Cameroon established "the" critical date in the
followingway:
1
"3.382 La seule date pouvant servir de 'date critique'aux fins de
la frontièrecarnerouno-nigérianedans son ensemble est la
dernière datepossibleà laquelle ontétéfixéesles relations
juridiques entre les deux Etats: la dàtlaquelle le temps
est supposé 's'arrêter'.Cette date n'était pas celle de
l'indépendance du Camerounni du Nigeria. Celle-ci ne
concernait qu'une partie de la frontière.
3.383 La date doit donc êtrela plus tardive des deux dates
auxquelles lesdeux Partiesdistinctesdes anciensCameroun
septentrionalet méridionalontétrespectivementrattachées
au Nigeria et au Cameroun. Etant déjà des Etats
indépendants,ces derniers ont en fait acquis - par une
forme très particulière d'acquisition territorial- des
territoires administrésauparavantdans le cadre d'accords
de tutelle (etavantcela, de mandat). Le fait que leNigeria
ait acquis le Cameroun septentrionalle ler juin 1961et la
Cameroun le Cameroun méridionalle ler octobre 1961
compliqueencorela question-maisseulementpour un court
laps de temps. La frontièreunitaire et complèteentre le
Cameroun et le Nigeria n'a existéqu'à partir de la plus
récentede ces deux dates. Toutefois,ces deux opérations
ont fait partie d'un seul et même processus.
3.384 Le ler octobre 1961est donc la seule date qui ait mis un
terme au processus collectif de décolonisation et
d'autodétermination,et qui donc peut étre considérée
comme la 'date critique' aux fins de déterminer les
frontières dans cetteaffaire en liaison avec le principe uri
possideris."
10.18 This approach has twopurposes. First, it is intendedto persuade the reader thatthe
temtorial srarusquo Ws frozen in October 1961,and, secondly,the implicationis
that the principle of uripossideris conduces to the creaiion of a permanent regime.
In the firstplace the lawdoes not insistthat the boundaty at ~ndependenceis frozen for a11time: see the positionof the Chamberof the Court in the Land,Islandand
MaritimeFrontierDispute case.'79
10.19 Furthemore, the approach adopted in the Cameroon Mernorial avoids any
identification of the date, or period, at which the dispute crystallisedbetween
Cameroon and Nigeria. The evidence availablesuggeststhat the dispute did not
emerge until January 1994.This conclusion is supported by the contents of the
Applicationand also the text of the CameroonMemonal, pp. 15-22. paras. 1.19-
1.35. In this context a key document is the Nigerian Note tothe British Foreign
Office dated 20 Apnl 1994'" (NC-M 146). This substantial document
supplements and confirms previous expressions of the Nigerian claim by the
Foreign AffairsMinister, Mr. Baba Gana Kingibe early in Febmary 1994"' (NC-
M 147).
10.20 In face of open and continuousactivity by Nigerian public authoritiesin Bakassi,
the Govenunentof Cameroon had failedto make anyprotest relatingto Bakassias
a wholeand, pnor to 1993, there is very little evidenceof anyadministration inthe
area by Cameroon. The evidence in this respect will be reviewedin due course.
Whenthe Cameroonian Ministryof ForeignAffairsdid makerepresentations,these
related only to Abana, and the firstprotest did not appearuntil 1969: see Memo
dated 15 September1969 (NC-M 148).
'"9 op.cit. para. 5
MemoriolVII,An".MC 341
18' MernoriaVol.VII,Ann.MC 338 B. Historical Consolidation of Title: TheLeeal Conceot
10.21 The legal concept of historicalconsolidationof title is invokedby Nigeria as the
principalbasisof itsclaimto sovereignty over thBakassiPeninsula.The principal
elementsofthe concept areadurnbrated by theeditorsof Oppenheim's Inrernational
Law in the followingterms:
"Consolidationof historic titles. Yetcontinuousand peacefuldisplay
is a complex notion when applied to the flexible and many-sided
relationshipof a state to its territory and in relation to otheres.
The many andvaried factors whichit maycomprisewere felicitously
subsumed by Charles de Visscher under the convenient rubric of
'consolidationby historictitles';of whichhe says:
"Proven long use, which is its foundation, merely represents a
complexof interestsand relations which in themselvehsavethe effect
of attachinga territoryor an expanseof seato a given State.It is these
interests and relations,varyingfromone case to another,and notthe
passage of a fixed term,unknownin any event to internationallaw,
that are takenintodirect accountbythejudge to decideinconcretoon
the existenceor non-existenceof a consolidationby historic titles."
In an important examinationof the criteria applied by tribunals to
resolve territorial disputes, Munkman identified inter alia the
following:recognition,acquiescenceand preclusion; possessionand
administration; affiliations of inhabitants of disputed territory;
geographical consideratio&; economic considerations; historical
considerations. Of these several factors it has been said that:
'Recognitionis the primarywayin which theinternational community
has soughtto reconcileillegalityor doubtwith politicalrealityandthe
need for certainty."ln(footnotesomitted)
l
10.22 Charlesde Visscher firstformulatedthe principlein 1953(in hiswork Théories et
Réalitésen Droit International Public(1953) pp. 244-5). The principlewas
explainedby de Visscherin a later publicationin theseterms:
9thed.Vol. 1,SirRobertlenningsandSirArthWans.1992p,p.709-10para2.72 "L'arret de la Cour internationalede Justiceen l'affaire desPêcheries
(Royaume-Uni-Norvège)a donné sa pleine expression à la notion
d'une effectivitépar consolidation de titres historiques.II a déclaré
méthode norvégiennd ee délimitationdeseauxterritoriales 'consolidée
par une pratique constanteet suffisammentlongueen face de laquelle
l'attitude desgouvernements attesteque ceux-cinel'ontpas considérée
comme contraire au droit international'. Pluslarge que la notion de
la prescription acquisitive,fondéesur une fausseanalogieavecle droit
privé, la consolidation embrasse à la fois le cas d'une possession
triomphant d'une possession adverse et celui d'une possession
s'appliquantà un territoire dont l'appartenance antérieuàeun autre
Etat ne saurait être étableveccertitude.
La consolidationn'esten définitiveque la résultanted'unprocessusoù
le renforcement progressifdes activitésétatiquesnféie àI'effectivité
dans la possession sa physionomiejuridique aussi bien qu'historique
sous la double garantie de la duréeet d'une tolérancegénéralisée. Ce
qui lacaractérise lorsquela possessions'exercea-l'encontred'un titre
de souveraineté,c'est le fléchissement graduedu titre négligsous le
poids d'une possession adverse déclaréeet longtemps tolérée. La
significationjuridique de celle-ci s'accroit par le temps, encore que,
respectueuse du titre, la jurispmdence incline iàise montrer plus
rigoureuse dansl'appréciation del'effecti~ité."'~'
10.23 The principle of historical consolidation has beenrecognised and accepted by a
number of authorities:
(1) Professor D.H.N. Johnson, Cambridge Law Journal (1955). p. 215 at
pp. 222-25.
ProfessorGeorg Schwarzenberger,InternationalLaw, Vol.1, (London 1957)
(2)
pp. 290-3.
(3) Professor Suzanne Bastid, Recueil des Cours, Hague Academy, Vol. 107
(1962, III), p. 441.
(4) Dr. Marjorie Whiteman, Digest of International Law, Vol. 2,
(December 1963), pp. 1224-29.
de Visscher,LesEffectisuDroitInremutionalPublic,P(1967)pp. 107-8 (5) Professor Sir RobertJennings, TheAcquisitionof Territotyin International
Lmu (Manchester 1963). pp. 23-28.
(6) Dr. YehudaBlum, HisroricTitlesinInternationalLaw, (The Hague, 1965),
pp. 335-7.
(7) Professor Ian Brownlie, Principles of Public Internationa l aw, (Oxford,
1966),pp. 154-6.
(8) Professor Malcolm Shaw, Title to Territoty in Africa, (Oxford, 1986),
pp. 18-20; and the same author in InternationalLaw, 4th edn. (1997).
pp. 345-6.
(9) Dr. Marcelo G. Kohen, PossessionContestée etSouveraineté Territoriale,
(~eneva, 1997).pp. 40-45, 57-59.
.
10.24 ~~ai&t.th&.background,the various elementscontributingtowardsthe process of
historical consolidationin the present casell be reviewed.
C. The S~eeifieCom~onents of the Historie Consolidation of Ni~erian Title
1 (i) The Original Title of the City States of OldCalabar
10.25 The firstcomponentof title by Historical Consolidation,and appropriatelythe first
element, is thelegal personalityof the City Statesof Old Calabar and the original
title which they had in accordance with the pertinent inter-temporallaw, prior to
the imposition of colonial rule. This component interacts with several other
components.
10.26 In the passage quotedabove from the ninth edition of Oppenheim, reference is
made to "historical considerations"and this element is given prominence inthe
classical study byMunkman in the BritishBar Book.IM
Vol.46 (1972-73pp.99-100. 108-9 Cu) The Attitude and Affiliationsof the hpulation of Bakassi
10.27 The same passage quoted from the ninth edition of Oppenheim refers to the
relewnce of the "affiliationsof inhabitantsof disputedterritory".On the operation
of this factor Munkman observes:
"Wherethe territoryis inhabited,theafiliations ofthe inhabitantswill
be ofgreat -but,probably, becauseof the considerationsmilitatingin
favour of the State in actual possession, secondary - importance.
Where theadministrationis itselfdisputedanddoubrful,theaflliations
of the inhabitants willprobably be decisive. In inhabited areas
considerations of geography, strategy,etc., will usually be a very
secondary consideration. Economic, historical, cultural and social
factors, and considerations of convenience will usuallycorrespond to
the affiliationsof the inhabitants.But these considerations,evenif they
do not al1weigh on the same side, will probablyonly cal1for some
adjustrnent of a boundary delimited primarily on the basis of the
affiliationsof the inhabitants.'"
This is probably one of the more theoretically controversialcriteria.
It must be remembered, however, that the traditional theories of
territorial sovereignty weredeveloped with referenceto uninhabited
areas, or with respect to relationsbetween colonizing powersinterse
in areas inhabited by 'natives'. Today, there are few significant
uninhabitedareas, and the principle or right of self-determinationand
the doubtful status of title by 'conquest' (whetherby the lawful or
unlawfuluse of force) have probably led to considerable modification
of the traditional law. Furthermore, modem territorial and boundary
disputes generally concern not situations of dynamic expansion of
frontiers, but relatively static situations where boundaries are settled
in principle or within relatively narrow limits. Claims now generally
affect relativelysmall areas of territory, and are concemed less with
territorial aggrandisementthan with the establishmentof a convenient
and stable boundary.
Furthermore, in most disputes concerning inhabited territory, the
aflliations of the inhabitantswill be bound up with, and refected in, the actuul administration of the tern'r~ry".'emphasis added,
footnotesmitted).
10.28 The majorityof the fishermenand farmers living inthe BakassiPeninsulahavefor
centuries belongedo the Efik andibibio ethnic groups,which have alwayshad
l stronglink with the CityStatesofCalabar.The principaltownsand villagesofthe
Efik, whichhavebeen locatedat Map 35 intheAth, are as follows:
Calabar
Itung
IkotNakanda.
10.29 The principaltownsand villagesof the ibibio, which are alsolocatedon the same
Map 35, are as follows:
UYO
Eket
Oron
Ikot Ekpene.
10.30 The permanenceof the Efikand Ibibiosettlementsin Bakassi andtheir socialand
ethnic links toalabar are confirmedby the historical sources. Thhas been
examinedin detail in Chapters3, 4 and 5.
1 (ii) TheToponymy of Bakassi
10.31 The toponymyof the settlements inthe BakassiPenimulacomïrmthe affiliationof
the townsand villageswith the Efik and Ibibiogroups.A detailed smdy of the
toponymyof this areais providedin Chapter3: see also theTablesin Chapter3.
Is6 op.cipp106-7 (iv) TheAdministration of Bakassias part of Nigeriain thePeriod 1913 to 1960
10.32 Nigeria has, in Chapter 9,submittedthat the11 March 1913Treaty was not given
effect, and that Bakassicontinued to be administeredby Nigeria, and in particular
by South Eastern State, throughoutthe period 1913to Independence.
10.33 Evidenceof suchadministrationincludedthe recognition by the Britishofthe strong
links between Calabar and Bakassi, the inclusion of Bakassi villages in the
numerous Edicts and Orders throughoutthe 1950s. and thecontinuingrole played
by the Obong of Calabar in the administration of the Bakassi Peninsula.
Furthemore, during this period, the settlementson Bakassi remained withinthe
jurisdiction of the Nigerian Native Court system based in the Calabar and Eket
Divisions of South Eastern State, and schools set up in Bakassi settlements were
administered withinthe EketIOpoboSchool Board of Eket Division.
(v)TheExerciseof Authority by TraditionalRulers
10.34 The role of traditional rulers in Nigerian society has been recognised and
maintained within the frameworkof the post-IndependenceConstitution. This role
has been maintainedevenduring periods of military rule. In relation to the Bakassi
Peninsulathe historicalpositionof the Obongsof Calabar is reflectedin the cultural
pattern which has obtained since Independence.
10.35 The relation is maintained throughthe Council of the Obong ofCalabar where al1
cognate Efik Clans are represented. Set outbelow is a sched~le'~naming the
existingmembers of the Council, some of whom are also natives of the Bakassi
area:lW
'"
Theoriginal documeftomwhich thischeduleis takeNC-M 149
ThenamesofthevillageswhicharelocatedonBakassiaresetout inboldforclarity,bothinthisschedule
andthroughouttheemaindeof thisChapter.>
NAME MEMBERSHIP =ATUS IN BAKASSI OCCUPATION
=ATUS m
OBONG'S
COUNCIL
E~bom ItamEyo PresentChairmanof AmoioClan Farming
Ibitam Council
E~bom OyoOmk FormerChairmanof Akws Clan FIFAOfficiai
Oyo-Ita Council
E~bom Ukorebi FormerSecretaryof OdonAmbaiEkpaClan lmmediatPastDeputy
UkorebiAsuquo Council Rector,Calabar
Polytechnic
ChiefEkpoEyo F'resentSecretaryof (a) PresentSecretaryGeneral PoliticaiScientistand
The Obong'sCouncil of BakassiNatives LecNrerin Public
(c) Direct Descendtfo
TraditionalCouncil
CbiefMrsCecilia AdaIdahaKe Efik
Mben Mmong EkanemEsin
VillageoAlma Clan Commission; Former raEma Atabong Clan
IBakassLocalGovt
10.36 Examplesof the Certificateof Recognitionby Cross River SrateGovernmentfor
two of the abovelisted Chiefs, Chief Okon Etirn Okun Asuquoand Chief Ekpo
Edem Archibong,are annexedat NC-M 150. These documents,issued pusuant
to section 13 of the TraditionalRulers Law of 1978,189 reveal that these Chiefs
are the village head of Atabong West and Archibong Townin AkpabuyoLocal
Government Area.
10.37 Customaryprocedurefor the appointmentofClanHeadsandHeadsofCognateEfik
familiesis similarthroughoutCalabar and Bakassi.The attendantcriteria are also
similar. Theyare:
(1) Abilityto proveone'sbirth and speak Efik;
la9
Seeparagrap10.42belowandAnnexNC-M 154 (2) Must notbe a charlatan;
(3) Must be a houseowner;
Must be a full initiateof Ekpe Society;
(4)
(5) Appointment mustbe made by the acknowledgedking-makers.
10.38 The role of the Etubomsand Chiefs must notbe under-estimated. The inhabitants
of the area havegreat allegiancetotheir leadersand rely on them for their safety,
welfareand goodadministration. In an area as remoteas Bakassifromthe centre
of FederalGovenunent originallyin Lagos andthen in Abuja, the role playedby
the traditional rulersis very important.
10.39 CorrespondencebetweenEtubomOkonIta, Etubomof the peopleof Atabong,and
the Chiefsof local villageson Bakassi in 1968revealsan interestinginsightinto
theirpositionin society. Duringthe Nigeriancivil war,a letterdated5 April 1968
(NC-M151)fromthe Etubomtothe ChiefsofAbana, he Odiong, he Atayo,Ine
Akpakand he Atabong statedhis concem that their villageshad been takenover
and occupiedby Cameroonian soldiersand police actingunder the orders of the
CameroonianGovernment,and that the villagerswere beingforcedto changetheir
nationalityfrom Nigerian to Cameroonian. He requestedthe attendanceof the
Chiefs at a meeting todiscuss the situation. This letter was followed by
correspondence in Efik (translations are also provided) in which the Etubom
arranged the meeting and requested thatthe villagespay someof the costofa visit
by the Etubom andhis lawyer,BarristerAnwan,to Lagos tobnng the situation to
the attentionof the relevantFederal Authorities (NC-M 152). It showsthat the
Etubomand his Chiefswereconcemedby the appearanceof Camerooniansoldiers
1
and police and the threat that this constitutedtotheir people, their society,their
cultureand their allegiances.
10.40 The correspondence further shows that the Obong and Etuboms' rule was
pararnount. In the letterdated 1May 1968(NC-M 152).the Obongtells hisChiefs in theBakassivillages thattheyshould infonnthe Cameroonianpolice thatanything
done in the villages withoutthe consent of the Etubom is nul1and void.
10.41 On 28 December 1973the South Eastern State TraditionalRulers Edict No.17was
promulgated.'" Its Schedule 2 listed the Divisions, Clans, Village Groups and'
villages in South Eastern State to which the respective Paramount Rulers,Clan
Heads, Group Heads or VillageHeads were restricted in the performanceof their
traditionalfunctions. The village groups listeEfidCklan in Calabar Division
include Archibong. Under Oron Division it reveals the following Bakassi villages
in the Fishing Settlementswith no CornmonName VillageGroup inEffiatClan:
AbanaNtuen
AkpaNkaya
Onosi
he Ekoi
It also revealsthe following Bakassivillages in the NtekirnVillageGroup:
he Odiong
Eden Abasi
ïne IbekweAtabong past Atabong]
he Atabong West Atabong]
ïne Akpak
he Atayo
10.42 Cross River State promulgatedthe TraditionalRulers Law ia 1978(Edict 14.
of 1978) which included Archibong within the Efik Clan of Calabar
Municipalit19'
10.43 Under this legislationthe Local GovernmentClans, Villages (Variation)Order of
1 July 1983was made (NC-M 155)designatingvarious local governmentclans.
'"
Annex NC-M153containstherelevantpages. The fulilexthasbeenlodgedwiththeCourt.
191AnnexNC-M 154containstherelevantpages. TlexthasbeenlodgedwiththeCourt.10.44 The Oder provides asfoilows:
"1. Schedule 1 of the TraditionalRulers Law, 1978 is hereby
variedin respectofthe LocalGovernmentsnamedbelow by addingin
columns (1) and (2)as regards the Local Governments andClans
named belowthe followingnew items:
Variationof Schedule1to the TraditionalRulersLaw,1978(EdictNo.
14of 1978)
ORON LOCAL GOVERNMENT
Clan Villages
Atabong Ikot Ema Antie
IkotIquo
Ikotltabinya
Ikot Odiong
Ikot Osukpon
Ikot Etim Ntung
Rot AntalOko
Ikot Okokon
Ikot Ema Andem Inyang
Rot Ema Andem Ema
Rot Ekpenyong
Itung Fïshing (Settlement)
Aqua Ine Itung
IkotAntaiOkon
ibiong Utan Itung
Ufot Ine Itung
Aqua Ine ibekwe
Ibiong Utan ibekwe
Ishie"
10.45 In 1990 the Stateof AkviaIbomadoptedthe Traditional RuleEdict(the relevant
pagesof whichare containedin AnnexNC-M 156),whichmadeprovision forthe
establishmentin each localgovernmentarea of a traditionalcountolact as an
advisorybody on the customsand traditionsof the localgovernmentarea.10.46 The Schedutothe Edictliststhe villages dforthe purposesof the Edict
asfollows:
"Sectio4
NAMESOF VILLAGES IN MBO LOCAL GOVERNMENT AREA
LocalGovernment AreaofAuthority Headquatters
MBO Clans/Villages ENWANG
EFFIAT VILLAGE N
BAKASI
Aya(inua Abasi)
AbanaNtuen
Onosi
AkpaNkanya
Ini Odiong
IneAkpak
IneAtayo
Ine InuaAbasi
IbuotEfe
IneEkoi
Ine Iyoso
OKOBO ATABONG VILLAGES OKOPEDI
IN BAKASSI
ItungFishingSettlement
AquaIne Itung
IbiongUtanItung
AquaIneIbekwe
Ufot IneItung
IbionoUtanIbekwe
Ishie"
10.47 The Cross River State Clans Creation Edict (No. 1 of 1996)'"created clansin
villages in theabuyoL.G.A. includingthe followingvillages in the Bakassi
region:
19'AnnexNC-M157containstherelevantpages. ThefulltexthasbeenlodgedwiththeCourt. IkangClan: Ine Ukpong
he Effiom
Ine AkpaIkang
Ine Ikang
Ine UtanAsuquo
IneUtan
he NkanOkure 1
IneNkan OkureII
ArchibongClan: Archibong Town
Akwa Clan: Akwa Town
Nwanyo Otto
MbenmongIkotEkanimEsin
AmbaiEkpa Clan: he InuaMba
Rio delRey
AbanaClan: AbanaNtuen
Akpa -P
Onosi
IneEkoi
IneMba
Ine Effiom
OdiongClan: EdemAbasi.
1 (vi) Junsdictionof CustomaLaw Courts
10.48 Modem legislation in Nigeria hasmaintainedand regulated the customary law
courts.Asearly as 17 June 1941,the Effiat-Mbo NCourt issued a warrant
for the Effiat-Mboon Clan) Court, which included withinitsjurisdictionthe
Bakassivillageof Abana(NC-M 141).
10.49 Withinthis framework,courts werealsoestablishedby virtue of the South-Eastern
StateCustomary Courts Edict of 1969.193 By means of a Warrant dated
193 A hlllcopyofwxthasbccnlodgcdwitCourt. 29 October 1970(NC-M 158)the Effiat-MboDistrict Court was created replacing
the NativeCourt, with jurisdiction in the area comprisingthe villages setout in the
Schedule thereto. This includedthe Bakassivillage ofAbanaNtuen.
(vii)The Settlementof Nationalsof the ClaimantState
10.50 In the formation of title by a process of historical consolidation therecan be no
doubt that the existence of long-established settlements of the nationals of the
claimant state plays a significantrole. It is helpfin this respect to recall the
viewsof Sir Gerald Fitvnaurice expressed in 1957:
"The element of racial or national affinitybetweenthe populationof
the claimant State and the inhabitants of the territory claimed, can
never in itself be a legal ground of title. Aswith historical factors, it
might assist in supporting a claim based on other grounds, or asan
evidentialfactor- for instance it might assist in showing thatcertain
acts were carried outanimo occupandw i ith the intentionof asserting
sovereignty. but, especially if the territory is, or has passed into the
effective control of another State, affinities of race or country can
never be a substitute for effective control, or for continuity, or in
themselves give title. Diferenr considerationsanse where it is not
merely a question of mcial or nationalaflniîy, but ofactualnationals
of the claimant State,for, if settlers ina rem'toryhave a certain
nationaliry, thar may 'be an element (thoughno? necessarily a
conclusiveone) in shaving the existenceof effective controbly their
parent State."'"(emphasis added)
10.51 The settlement of nationals has been treated as relevant, thoughby no means
decisive, in thejurispmdence of international tribunals.
10.52 In the Guatemala-Hondura BsoundaryArbitrationthe SpecialTribunalwasrequired
todetermine the line based on the uti possidetis of 1821. The Tribunal was
expresslyauthorisedto modih the utipossidetisIineto take into account'interests'
'" Recueil desCours,HagAcademy,Vol.92 (1957. II),p.149 acquired by either party beyondthat line. The Tribunal consequentlyassurnedan
impliedpowerto takeaccountof interestsderived fromactualpossession, including
settlement. In the wordsof the Tribunal:
"The criteria to be applied by the Tribunal in the exercise of this
authority are plainly indicated. It is not the function of the Tribunal
tofix territorial liitin view of what might be an appropriate
division of the territory merely with referenceto geographical features
or potentialadvantagesof a militaryor economic character,apart from
the histoncal facts of development. The Treatycannot be constnied
as authorisingtheTribunaltoestablisha definitiveboundaryaccording
to an idealistic conception, without regard to the senlementof the
tem'tory and existing equities created by the enferprise of the
respectiveParties. So far as maybe foundto be consistent withthese
equities, the geographical featuresof the territory indicating natural
boundaries maybe considered.
In fixingthe boundary, the Tribunal musthave regard (i) tothe facts
of actual possession; (2) to the question whether possessionby one
Part yasbeen acquiredin good faith, and without invadingthe right
of the othPart yn;d (3) tothe relationof temtory actually occupied
tothat which is as yet unoccupied. In the light of the factsas thus
ascertained, questions of compensation may be determined."lB
(emphasis added)
10.53 In theArgentine-ChilFrontiercase (1966)the Court of Arbitration, of whichLord
l
McNair wasthe President, wasrequiredbythe Compromiseto reachits conclusions
1
l 'in accordance with the principles of international law'. In ils Report the Court
1 considered thatasa matter of pnnciple, evidenceof settlementwas relevant. The
l
court made the followingobservations aboutthe evidenceprofferbythe parties:
"Chile has introduced a great deal of evidence designed to show
effective Chilean administration over the disputed area. Even
unofficialacts are reliedupon, such as ministrationsby priests coming
under the ApostolicVicarageof Aysenin Chile, and strenuousefforts
havealsobeenmadeto show that the senlersofthe disputed arehave
19' Guatemala-HonduraBsoundav Arbitrarion(1933);InteLawtRepom.Vol.7.p.115atp.122 Chileanloyaltiesand have'bytheir conductattomed tothe Chilean
authorities'.(Fil SubmissionNo. 25).
Argentina has claimed throughout the proceedings that since 'the
interpretation and fulfilmentof the Award'is a matter for the Court,
and not for the Parties, al1this Chilean evidence is irrelevant. While
rnaintainingthis general position, Argentina hascriticised and sought
to discredit much of the Chilean evidence, especiallythose parts of it
which depend upon the actsof local as opposedto central authorities,
and even more those parts of it which reflect the conduct and
sentimentsof private individuals. Subject to her general resewation,
Argentina has also submitted evidence of Argentine activity inthe
disputed area, which Chile in her turn has sought to discredit for
various reasons. The very voluminous material submitted by both
sides, and especially by Chile, came to be known in the case as 'the
fulfilmentmaterials'.
Although the Court - for reasons which will be explainedbelow -
shares Argentins's view that the reference to interpretation and
fulfilmentin the Compromiso is intended to mean interpretationand
fulfilmentby the Court rather than by the Parties, the Court has not
taken the view that 'the fulfilmentmaterial' submittedby either side
ought to be excludedas completely irrelevant. Thisis because,inthe
Court'sopinion,suchevidenceis relevantto thequestionofsertlement
-whetherfor instancewhatwas settledin 1902-03hassincebecome
unsettledor has becomesettled in a differentway, and whethertoo
'thefilfilmentmaterial'throwsanylightonthe question whethew r hat
was lqî unsettledin 1902-03has sincebecomesettled. "'%(emphasis
added)
10.54 Essentiallythe sameapproachwasadoptedbythe Chamberof the Court in the case
conceming the Land, Island and Maritime FrontierDispute. The following
passagesfrom the Judgmentare illustrativeof the acceptancebythe Chamberof the
relevanceof evidenceof sealement:
"'iùrningnow to the evidence of effectivitéssubmittedby Honduras,
there is first some evidence of diplomatic correspondence, and in
particular a formal request by El Salvador for extradition of alleged
malefactorsresiding in a place called'La Vecina,jurisdiction of the
town of La Vid, Department of Gracias' in Honduras. La Vecina
1 '% Internatiol awRepom, Vol.38. p.1atp.88 is shownon the maps of both Partiesas a village near theheadwaters
of the river Gualcuqinor Arnatillo. Secondly,considerablematenal
w& presented as an anna to the Honduran Reply to show that
Hondurasalso can relyon argumentsof a humankind, tharthereare
'humansettlemenrs'of Hondurannationalsin thedisputedareasinal1
six sectors, andthat variousjudicial andotherauthoritiesof Honduras
have exercised andare exercisingtheir functionsin those areas. So
far as the presentsectorisconcerned, Hondurashas presentedmaterial
under ten headings: (i)crimil proceedings;(ii) police or security;
(iii)appointmentofDeputyMayors;(iv)publiceducation; (v)payment
of salariesof employeesand remunerationto public officiais(vi)land
concessions; (vii)transferor sale of immovableproperty; (viii) birth
certificates(ix d)eath certificates; (x)miscellaneou..".'"
"Turningnowto the evidenceof effectivitéssubmittedby Honduras,as
alreadymenrioned,considerablematenal waspresentedas an annex
to the Honduran Replyto show that Honduras also can rely on
argumentsof a human kind, thar there are 'humansettlements'of
Hondurannarionulsin the disputedareas in al1six sectors, and that
variousjudicial and other authontiesof Hondurashaveexercisedand
are exercisingtheir functionsin those areas. So far as the present
sector is concerned, Honduras has presentedmaterial under ten
headings:(i)criminalproceedings;(ii)policeor security;(iii)militaxy
patrols; (iv) taxation;(v) appointmentof deputy rnayors;(vi) public
education; (vii) land concessions; (viii)irth certificates; (iv)death
certificates(x) miscellaneous. Theserelate to a considerable number
of localities,identifiedsimplyby the narneof the villageor place; no
map has been supplied to show the geographicalposition of these
places. The Chamberconsidersthat, inviewof its decisionas to the
boundary on the basis of the uti possidetisjuris, it can confine its
attentiontosuchvillagesas appearon Honduranmaps to lie between
the boundaxyas found by the Chamberand the boundaryclaimed by
Honduras. (emphasis supplied)
10.55 In a situation in which evidence of historical consolidationis particularly
appropriate, the existence of long-established settlements of nationals has
considerable probativevalue.
'" 1.C.J.Rep.1992p.147atpara.180
19' ibidp..516,para.265 (viii)Actsof Administrationby Nigeria afterindependencein 1960
(a) The EvidentialSources
10.56 A major component inthe process of historicalconsolidationis the evidenceof
peacefulpossessionandadministration,consistingofactsinvolving"a manifestation
of sovereigntynin respect of the Bakassi Peninsula (cf.Minquiersand Ecrehos
case),19or "actsof such a characterthat they can be considered a manifestation
of Stateauthority"in respectof Baka~si.~~
10.57 In theJudgmentofthe Chamberin the Lond Island andMaritimeFrontierDispute
case, there is repeated reference to the requirement of "effective
administration"'O1
10.58 The varioustypesof evidenceof administration by Nigeriawill be reviewedin the
sectionsfollowing.
(b) The Maintenanceof PublicOrderand the Investieationof Crime
10.59 Occupyinga leadingposition inanychronicleof "acts ofsucha characterthatthey
can be considereda manifestationof stateauthonty" are the maintenanceof public
order and the investigationof crime. In this contextit may be recalled that inthe
Rann of KutchArbitrarionaccountwastakenof the exerciseof policeandcrimimal
j~risdiction.~~
199 I.C.Rep.1953pp.58-59
ibid.p71
'O1 SeeI.C.J.Rep.1992pp.418-19,para.96. p. 515, para.264
2m
R.I.A.A., Vol.XVII.pp.558-9(OpiofothChairman) 10.60 The relevant evidence includesthe exercise of jurisdiction by Customary Law
Courts actingby virlue of Nigerian legislation. This aspehas been exarnined
abovein paragraphs10.48and 10.49.
1
l 10.61 The documentsavailableprovideevidenceof the followingactsof lawenforcement
by Nigerian policeofficials inthe Bakassiregion:
(1) In 1963aNigerianpolicelaunchintercepted aCameroongoverment launch
in the temtorial waters of Nigeria near Abana. This incident, on 16
November1963, was the subject (along with other similar incidents)of a
Nigerianprotestdated 1 April 1964(NC-M 159).
On 29 October 1965 aNigerianpolice officerarrestedmembersof a Mobil
(2)
Oil surveyteam inthedeltaofthe CrossRiver.TherelevantCameroonNote
(dated 22 November 1965) reserves theposition of the Cameroon
Governmentbut no protestis made (NC-M 160).
(3) In 1970 Nigerian officialswere sent to the villageof Eket to investigatea
murder case. The interventionof Cameroonofficials atAtabongprompted
a Nigerianprotestin the followingterms:
"The Embassyof the Federal Republic of Nigeriapresentsits
compliments tothe Ministryof Foreign Affairsof the Federal
Republic of Cameroon and has the honour to bring the
followingto the attentionof the latter.
On the 28th of May,1970, two Nigerian PoliceConstables,
Edem Asanga No.114302and OkonWillieNo. 122304were
arrestedby the Cameroon authoritiesat ATABONG,a fishing
villagewhile on their wayto EKET toinvestigatea muràer
case.
The Embassywouldbe gratefulif the Ministrywouldbe good
enough to cause theimmediatereleaseof thesemenwhowere
on officialduty. The Embassy of the Federal Republicof Nigeria avails itself
of this opportunityto renewto the Ministry of ForeignAffairs
of the Federal Republic of Cameroon the assurances of its
highest consideration." (NC-M 161)
(4) The two Nigenan detective constablesinvolved wereemployedby the State
Criminal Investigation Department atCalabar. The relevant report, dated
17 June 1970, prepared by the Nigerian police officers, includes the
followingpassages:
"We,Nos. 11431DetectiveconstableEdemAsangaand 12234
Detective constable Okon Willie are of the State Criminal
Investigation Department, Calabar, South Eastern State of
Nigeria. There was a petition from one Okon Ononoedi Etto
against Eket Policealleging of the bad handling of a murder
case which his late brother Sunday Ononoedi Etto was the
victim. Therefore, we from the State C.I.D., Calabar were
scheduledto take up the investigation.
2. The petitioner allegedthat some peoplefrom Ntak Inyang,
Eket, fishing at Ine Odiong rnurdered his brother Sunday
OnonoediEtto their CO-fisherman and buried the corpse in the
mud. Weleft Calabar on the 18thMay, 1970to Ine Odiongon
investigation. OnOurwaywe called at Eket Police Stationand
at Etebi, Eket the village of the deceased. In order to allay
suspicionas to the conditionof the corpse dunng exhumation,
at Etebi andNtak Inyangwe collectedsome of the deceased's
relativesand the suspectsand proceededto Ine Odiong in two
canoes.
3. We amved Ine Odiong on 22nd May, 1970. Afier
necessary enquiries, on 24th May 1970, we exhumed the
corpse for Post Mortem Examination. It was only the skull
which was in order but other parts of the body had been rotten
and decomposed. So far therewasa statementto the effect that
the head was broken, we had to carry the skull still to be
examined by a medical officer. We left Ine Odiong for Eket
the same date but we were intercepted by the Cameroon
soldiers and Navy at Edem Abasi water near to Atabong
Fïshing hrt ... 6. Wehaveput in over 12 years inthe NigeriaPolice Force
and have investigatedcases in Abana, Atabong, bekwe,
Akpa Nkanya, Ine Odiong Fishing Port stc. We had also
done taxassessmentand taxdrive in these areas before the
war, but there had never been any interruptionby the
Cameroon.Weareverymuchembarrassedaboutthis incident."
(emphasissupplied)(NC-M 162)
10.62 The finalparagraph of this report providesclear evidenceof the existenceof a
statu quo, subsisting(in the experienceof the twowitnesses)for twelveyearsand
more, involvingthemaintenanceoflawandorder inthe Bakassiregionby Nigerian
police officers.rior to this incident this peaceful state of affairs had not been
intenupted byCameroon.
10.63 The crime rate on Bakassiis not high, but thefollowingincident reportsare held
at the police stationIkan gwestwardsacross theAkpa Yafefrom Bakassi) and
were investigateby the police fromthat police station(NC-M 163):
(1) On 24 March 1986,there was a complaintby Nichon Machan that Chief
Iyabo Agagbelewihad obtainedmoneyunder false pretences in Inua Mba,
Bakassi.
On22 January 1991,AkpanDaniel Udosen from Isangele made a complaint
(2)
that anoutboardenginewas stolen.
(3) Also on 1 July 1991, Ededem OkonEdem of Ifiari reportedto the Ikang
police station thatile on a vigil one night, he was assaultedby Etim
Sunday Nnang and twoothers,and then theycausedcriminaldamageto his
clothes andstole65 Naira fromhim.
(4) On 24 September1991,EffiongEdet fromAbanacomplained that aperson
had gonemissing. (5) Also on 24 September 1991, Effiong Okon Ayakangfrom Nwanyo on
Bakassicomplained that Etim Oto Nwayang,also of Nwanyo,stole 3,600
Naira in cash, a fishingnet worth3,200 Naira and three paddlesal1valued
at 50Naira.
On 21 February 1993, Chief Ita Okon Ekpenyongfrom Abanacomplained
(6)
that OdiongInyang,also from Abana, had threatenedviolenceagainsthirn,
and assaultehim.
(7) On 28 September 1994, ImeJohnson Jiy of Iso Ikot Arna Owo near
Abana on Bakassicomplained that Samuel Jacksonf the sameaddresshad
cornrnitteda negligentact.
10.64 These incidentsshow that the Nigerian policebased at Ikang police stationwere
responsiblefor lawand order throughoutthe BakassiPeninsulaovera longperiod
of time.
10.65 Furthemore, in 1994a police stationwasestablishedatAbana with the apprml
of the Head of State(NC-M 164).
(c) Taxation
10:66 Of particularevidentialvalueis the collectionof tax from residentsof the Bakassi
Peninsulby the CrossRiver StateofNigeria(CalabarTax Division). Theevidence
takesthe fom of the NominalRollof taxpayerswho paidtheir taxesin Akpabuyo
Tax District in CalabarTax Division of Cross River State. Copies of this
information (both in manuscripatnd in typescript) and a selection of related
individualtaxreceipts,relatingto the fiscalyear 1967-68,can be foundat NC-M
165and NC-M 166. The evidencewasprovidedby the Officeof the Governorof
Cross RiverState. 10.67 The Bakassivillagesinvolvedare as follows:
Akwa Town
Arehibong Town
Mben Mong
Nwanyo
Atabong
Abana.
1
10.68 It is the case thain a Note dated 24 December 1964 theMinistry of Foreign
1
Affairsof Camerooncomplainedthat taxes were being collectedby Nigeria "in
fishermen villagesituatednear river Rio delRey,in CarneroonTerritory"(NC-M
167). The Nigerian response dated 14 January 1965 stated that the matter was
being investigated (NC-M168).
10.69 Evidence in the form of the Interna1Revenue Stock and DistributionRegister
(EasternNigeria) establishthat. in the fiscalyear 1969-70,incometaxwasbeing
collectedfrom Abanavillageon the BakassiPeninsula(NC-M 169).
10.70 There can be no doubt that the impositionof taxes is recognisedby tribunals as
evidenceof sovereignty.This Court accepted evidenceof the impositionof local
and other taxes as evidence of title in the Minquiers and Ecrehop case.
Evidenceof taxationwasalso regardedas admissible by the Court in its Advisory
Opinionconceming Rsrern Sahara."
1 (d) TheExerciseof EcclesiasticalJurisdiction
10.71 A normal outwork of a system of civil administrationis the exercise of an
ecclesiasticalrisdictioby religiousauthonties in the formof the registrationof
bi.rths,marriagesand deaths.This type of evidencewas taken into accouby the
'O3
I.C.J.Rep. 1953pp.65, 69
' I.C.J.Rep. 1975pp.4547. paras.99-103 Chamber in the case concerning the Land, Island and Maritime Frontier
Disp~te.'~
10.72 The Court is respectfully requested tostudy the pages from the baptismal and
mamage registers of St. Mark's Parish, Oron, which contains the names of
membersresidentin Abanain theBakassiPeninsula(NC-M 170).The datesstretch
from 1938 to 1979.
(e) Delimitationof ElectoralWards
10.73 Under the auspices of the National Electonal Commission Decree 1987
(NC-M 171),in 1990 the whole of Nigeria vas divided into Local Governent
Electoral Watds: see the Local Government(Delimitation of Electoral Wards)
Notice 1990(NC-M 172).
10.74 In IkangCentral Ward(with codeNo. LG129lCR)in AkpabuyoLocalGovernrnent
Area, of the 15 villages constitutingward,Ine Nkane Okure 1, IneNkane
OkureII, Ine Ekoi,IneUtan Asuquo, IneIkang, IneUkpono,IneAkpaIkang,
and IneUtan are al1on Bakassi(NC-M 173).
10.75 Electoral Wards were designated in the Bakassi LGA under the auspices of the
National Electoral Commissionof Nigena for Cross River State in 1996. The
delimitatiobythe Electoral Commission appearsin NC-M 174. From this it is
apparentthat:
Abana Wardincludes AbanaNtuenandIneEkoi
OdiongWardincludes EdemAbasi
Akpa NkanyaWardincludes AkpaNkanya,IneMbaandIneEffiom
ms I.C.J.Rep. [email protected]). pp.4356 @ara.123)[email protected]).PP.
471-2 @aras.180-l), p.516.656), [email protected]) ArchibongWardincludesArchibong Town.
(f) Particivationin ParliamentarvElections
10.76 In the 1959Federal election, Mr. Okon JohnErninue, a Methodist Schoolhead
teacher,was elected member representinEket EastConstituencywhich included
some of the Bakassivillages. Duringthe 1964Federalelectionswon by the then
BarristerE.I. Nkereuwem(nowa retiredJudgeof the AkwaIbomStateJudiciary),
one pollingboothwas erecteat Akpa Nkanya,two atAbana, oneatIne Odiong,
one at Ine Onosi, one at AtabonEast and one at AtabongWest. Between1960
and 1963 Etim Effiong Bassey,the retired principal of Methodist Boys' High
School, Oron (from EyofaiEnwang)was a member representingWard 5 -these
being Effiatvillages inBakas-iin the then Okobo-OronCounty Councilof Eket
Division. Butbetween1964and 1966,Mr. Bassey wasreplaced by Ebi Umo, as
the member representingthis wardin thesaidCouncil.Ebi Umo,nowthe head of
Akwa Obio Efiat,is a greatgrandsonof EdidemNtuemUmo, the reputedfounder
of Akwa ObioEffiat, andthe fourthin thestockof the founderof Abana Ntuen.
(g) CensusTaking
10.77 The taking of a census is a classicalform of exercisingsovereigntyin respectof
temtory.
10.78 There was a populationcensus of Nigeria in 1953, during the penod of the
, trusteeship. This includedpart of AkpabuyoRuralDistrict Council,as tharea
was then known, within Calabar Province,the followingvillages located on the
BakassiPeninsula:
Ine Akpa ikang
Ine Ekoi
Ine Nkani Ekure
Ine Utan ïneUtan Asukquo
(NC-M 142)
10.79 Therewasalsoa populationcensusin Nigeriain 1963,in whichthe EasternRegion
phaseincludeda retumfor AbanaNtuenwithinIbaka LocalCouncils(NC-M 175).
10.80 In 1991 the National PopulationCommissionvisited Abana and made a report,
dated 14 November1991,to the control centre, Mbo Local GovemmentArea, in
which theycountedthe number of buildingsin the villageand drew a sketch map
(NC-M 176). Theyalso sketchedand delimiteda numberof the Nigerian villages
on Bakassi(NC-M 177).
10.81 In its Judgmentin the Minquiersand Ecrehoscase the Court tookaccountof the
visit of an official census enumerator to the islets as "a manifestation of
ii206
sovereignty.
(h) PublicWorksand Develo~mentAdministration
10.82 The existenceand the planningof public works and the provisionof a subsidised
infrastructureconstitute evidenceof title: see thenn of KurchArbitr~rion~~
and theJudgment inthe Minquierscase.208
10.83 The South-Eastem State Development Administration Edict No.7 of 1972209
established aDevelopmentAdministrationsystem, in which the territorialunits
were DevelopmentAreas. The DevelopmentAreas established extendedto the
Bakassi Peninsula. The relevant Areas and their constituentvillages were as
follows:
206 I.C.J.Rep.1953p66.69
R.I.A.A.. Vol.XVII.p.557(Opinionof theChairman)
" I.C.J.Rep.1953 p.69
AnnexNC-M 178containstherelevantpages. Afullcopyof thetex1hashccnlodgedattheCourt. "CALABARDMSION
30. hg Development Area
ConstituentVidages
IneNkaniOkureNo. 1 Ikot AntighaEne
IneNkaniOkureNo. 2 Ikot Mkpang Esighi
Ine Utan Ikot Abasi Ene Esighi
Ine UtanAsuquo Ekpene Esuk Esighi
Ine hg Itam Rot Antigha
IneAkpahg Efut Abua Esighi
Ine Ibuot Owong Idua InwangEsighi
IneEfiom Ifiang Nsung
IneUkpono IfiangEdem Inyang
IneEkoi Edik Okon Idem
Ikang Efio Ekpe Esuk Aye
IkangTown Esuk Okon
Edik Idi Ikot Efanga Ikot InwangOkpo
Efut Abua Ikot Eyei Abakpa ikot Nkok Anie
Ikot Efio Odiong Ene Ikot Okon Ekpriwong
Ikot InyangNsidung Ikot Edem Oku
Akwa Obio InwangNsidung Ikot otu
Ekpri Obutong Abakpa EfioAse
Obutong AbasiEke Usung Esuk Efio Obori
Ekpri Ikang Akpap Okon EneIta
OkukubarakpaEsighi Fait Ikot Nsa Ewa
Ikot Ene Uyi Esighi Fait Ikot Naidung
Usung Idim Ikot Antigha Esine Ufot Nsidung
Ikot Enene Esighi NyomidibiNsidung
157.EffiatlibakaDevelopmentArea
Constituent Villages
Ibaka Utan Bramah
Akwa Obio Effiat Mbe Ndoro
Inua Abasi Ine Okpo
Ibuot Utan Ine Akpak
Usuk Effiat IneAtayo
Obio Iyatta IneOdiong
AbanaNtuen AkpaNkanya
Esuk Enwang EdiAbasi
Ibuot Ikot Obong Nim
James Town OnosiAbana
Mkpang Utong Idak Okono
Utan Antai Asiba
Utan Efiong Ine Inua Abasi 14. Utan Udombo 28. Mbat Ekpa."
10.84 In accordance with the Edict of 1972 the Co-ordinator of Development
Administration established theEffiatIIbaka Area DevelopmentComrnittee, with
authority to acinthe area of the villages lisindthe Scheduleto the Edict. The
relevantInstrument,dated 16August1972(NC-M 179), includedAbana Ntuen on
the BakassiPeninsula.
10.85 A letter from the Departmentof DevelopmentAdministration inOron to the Senior
Divisional Executive at the Oron Divisional Office, dated 12 December 1973
(NC-M 180). refers to the followingconstituent villages being within EffiatIIbaka
DevelopmentArea of Omn East CountyDevelopmentCouncil:
Abana Ntuen
Ine Okpo
Ine Akpak
Ine Atayo
Ine Odiong
Akpa Nkanya
Eài Abasi
Onosi Abana.
10.86 The Edict of 1972 (Edict No. 7 of that year) was the basis for the Oron East
County Council Development (Establishment)Instrument of 1974 (NC-M 181).
The instrument provided,in part, as follows:
"In exercise of the powers conferred on the Military Governor by
section 10 of the South-Eastern State Development Administration
Edict 1972anddelegatedto meunder the DevelopmentAdministration
Delegation of Powers Order 1972, 1, MTIENYONG UDOAKPAN,
Co-ordiitor of Development Administration of the South-Eastern
Stateof Nigeria, hereby make the following- INSTRUMENT
1. The Oron East County Development Council (hereinafter
referredto as 'theCouncil')is herebyestablished.
2. The Council shall exercise authority in accordancewith the
provisions of the South-Eastern State Development
Admiistration Edict 1972 (hereinafter called "the Edict")
throughoutthe DevelopmentAreasspecified inColumn1ofthe
Schedulehereto.
3. The Council shall, exclusiveof ex-officiomembers and such
traditionairulers and special membersas may be appointedto
the Council by the Co-ordinator as provided in the South-
EasternStateDevelopmentAdministration(No.2)(Amendment)
Edict 1973,consistofa chairmanand not morethantwenty-four
membersselected fromtheconstituentvillages [or]combination
of villagessetoutin the Schedule hereto,accordancewith the
Development Admiistration (Selection of Councillors and
Comrnitteemen)Regulations1972."
10.87 The scheduleto the instrumentincludesthe Bakassivillageof Abana Ntuen in the
development areas thusconstituted.
10.88 In October 1994the Cross River State Governrnenp turchased fishing gear for
fishemen oftheBakassiPeninsulato replacelossescausedbypoliticaldisturbances
involvingArchibong Town, Abana, Atabong Westand Atabong East: seeNC-M
182.
(i) The Exerciseof MilitarvJurisdiction
10.89 The manifestationof sovereignauthority may take the fom of the exercise of
militaryjurisdiction, as part of a generalisedsystemfor maintaining publicorder. Suchevidencewasregardedas in principleadmissible by the Chamberin theLand,
Islandand MaritimeFrontier Dispute.210
10.90 Nigeria asserts that there has always been a Nigerian military presence on the
Bakassi Peninsula. The Isaac Boro military camp has been situated near West
Atabong since the Nigenan civiwar. Furthermore, the NigerianNavyhavea base
at Jamestown, from where regular patrols are sent out to patrol the creeks and
shores of the BakassiPeninsula.
6) Public Education
10.91 The provision of public education is clearly an exercise of State functions
constitutingevidenceof title. In theLand,Island and MaritierontierDisputethe
Chamber of the Court recognisedthat the provisionof public education countedas
an effe~tiviré.~"
10.92 From as early as 1893there wasa Methodist Schoolat Archibong, butinthe period
prior to the 1960s,the people of Bakassi, if they wereable to afford thecost of
transport, tended to send their childrento Duke TownPrimary School in Calabar,
which had first been established in1846.
10.93 Furthermore a Catholic school, St. Francis' Catholic School,existedfrom 1960to
1968,when it was forcedto close during the Nigerian civil war.
10.94 A Methodist Schoolwas established in 1968at Atabong, and this was still within
the authority of the Nigerian Educationand Examination board in1975(NC-M
183).
I.C.IRep. 1992pp. 470-1, para. 179
Seeforexample.1.C.l.Rep.1992pp. [email protected]);pp. [email protected]) 10.95 Ina Note dated15 September1969,Cameroonprotestedwhen a prirnary school
was establishedat Abanaby the Catholic Mission based at Uyo (NC-M 148).
Whilstthe schoolwasnot supportedby publicfunds,the Governmentof Cameroon
clearly regardedis developmentas evidenceof a formof Nigerian State activity.
10.96 Nineschoolsin total wereestablishedonBakassipriorto1994. Thesewerelocated
1 in the followingsettieme(seeNC-M 184):
Settlement 'Qpeof School Date of Number
Foundation Enroiied
Archibong Town Methodist 1893 300
NkanOkure Community 1962 200
Atabong West Government 1968 450
Atabong East Community 1968 345
Mbenmong Community 1975 150
Nwanyo Community 1981 100
Abana Government 1992 405
Archibong Town StateSecondary School 1993 150
Atabong Town StateSecondarySchool 1993 160
-
10.97 Someof these schoolswere forcedtocloseduringthe troubles in the p1967-
1968,and also during the period at thebeginningof 1994. This latter was as a
result of the threatpobythe sustainedattacksand occupatibyCameroonian
soldiers and police. Such attacks in 1968 were drawn tothe attentionof the
Etubom at Calabar and were perceivedas very serious (see paragra10.38-
10.40).
10.98 In MC 317and MC 322, there are two interna1notes, whichappear to be exactly
1 the samebut whichbear twodifferent dates,18February 1992and 18December
1992respectively. These showthat evenCameroonrecognisesthe fact that these
schoolsare Nigerian. These notes state:
'12 .'
TheSchoolwxsactuallycstablishcin a localchurchbuildiRomanhCaiholicMiuion at
Uyo(now iAkwahm Statc).In199,kpabuyLoca lovernmet ouncil bunewbuilding.MI
MichaelEdctOkonarseadTeachcrhm 198m1992.Hisstatemcntis atNC-M 185. "theCommunitySchool,openedanddirectedbytheLocalCommunity
of JABANA (Cameroun) [called Abana by the Efiks receives
subventionsrom AKPABUYOLOCAL GOVERNMENTt,he State
Communeof AKWA-BOM [sic] IN NIGERIA. Initiallyit was built
of temporary materialsanden in theprocessof beingrefurbished in
permanent materials. TheTeachersare al1 natives of NIGERIA"
(NC-M 186).
10.99 More recently, theCross River StateMinistryof Educationgrantedpermissionto
openfifteenprirnaryschoolinvillageson Bakassiwhich includedAkpa Nkanya,
ibekwe, Ine Ekoi, Mbenmong, Nwayo,Onosi (NC-M 187).
(k) Provisionfor Public Health
10.100 Since1959,the Nigerianauthoritiesin BakassihaveestablishedHealthCentres for
the benefitof the communitieson Bakassi,and, indeed,ehaveoften beenbuilt
with the assistanceof the local communities.ese health centres are supplied
from Nigeria,andthe residentpublichealthworkersare trainedin Nigeria. There
are currently ten such health centres across the BakassiPeninsulaprovidingwide
healthcareandprogrammes(NC-M188). The followingis a listof thefoundation
dates of someHealth Centres(NC-M 184):
Name of Settlement Date of Establishment
Archibong 1959
Mbenmong 1960
Atabong West 1968
Abana 1991
Atabong East 1992
10.101 In the courseof 1994,CrossRiver State made provisinortheequippingof health
centresin Archibong Town, Atabong West and Abana (NC-M 189). At no stage
had the Cameroonauthontiesmadeprovisionfor healthcare in the Bakassiregion.
This viewof the position is confirmedby the accountof effectivitéswhichappears inthe Cameroon Memonal, paragraphs4.420to4.456 .onsideredinfurtherdetail
in paragmphs 10.13 to 10.15 b3elow.
(1) The Grantineof Oil Ex~lorationPermitsand Production Aereements
10.102 It is generallyrecognisedthat the grantingof permits and licences in rtoation
exploration for, or exploitation of, oil, gas and other economic resources,
constinitesevidenceof the exercise of State authority: see the Judgmentof the
PermanentCourt intheEasternGreenland case.213
10.103 After the independenceof Nigeria private operators interested in petroleum
prospects recognisethe existenceof Nigeriantitoethe BakassiPeninsula.Thus
in 1965 surveyors, acting on behalf of Mobil Oil Cameroun, approached the
Nigerian Govemmentfor permissiontocany out survey work "on the Western
bank at the mouthof the CalabarRiver"(NC-M 190). It is not clear whether this
was a referenceto the western Coastof the BakassiPeninsulaor to temtory in
Akwa IbomState.
10.104 In any eventthe resulting surveyworkappears tohavebeen carried out at leastin
part on Bakassiand gaveristo an incident describedin a Nigerianinterna1report
as follows:
"We have been approachedby the Cameroun Ministryof Foreign
Main in respect of an incident which befell certain American
employeesof Mobil Oil Camerounin the Rio-del-Reyarea of the
Cross river. Apparently,nadvertently,they trespassed on Nigerian
soi1in order tocarryout certain suweys whichthey were doing for
Mobil Oil Cameroun. Theywere discoveredby a NigerianPoliceman
on the29th of October whoseizedtheir passportsand ordered them
to quitithina week. The Cameroun Ministryof ForeignMairs are
not contestingthe factthat thetemtory is Nigerian;however,areey
1933P.C.I.I.SeA5,No. 53,p. 2atpp.52-54 pleading that the Amencans uespassed inadvertently and would be
gratefulif their passports are retumed" (NC-M 191).
10.105 The response of the Cameroon Ministry of Foreign Affairs was (in material part)
as follows:
"A petrol survey team of the geographicalsection of the 'MobilOil'
who were operating on a land concession givenby the Cameroun
Authoritiesin the deltaof the Cross River (long. 893E, lat. 4'30 N)
were arrested on 29th October 1963bya Nigerian police officer who
considered that thisland waspart of the Nigerianterritory and called
the whole team to leavethe place in a week's tirne; he also took his
passport from Mr. Guy Cogswellan Arnericancitizen and a member
of the team.
The Ministry hasbeen informedof this incident ..it deeply regrets it
and reserves the position of the Cameroon Government as for the
elements ofthe problem.
The Ministry requests the Embassyto approach their Governmentso
that Mr. Cogswell'spassport be given back to hi and seizes this
opportunity to renew to the Embassy the assurance of its highest
consideration." (NC-M 192).
10.106 The picture which emerges contains two basic elements. First, the area in dispute
was the subject of competing exploration activitiesand, secondly,the incidenceof
oil-relatedactivitieswas not, at least in the long run, regarded as conclusiveof the
issue of sovereignty. These elements are attested by the following Nigerian
document dated 19 June 1992:
"1am directed to inform you that the Governmentof Cameroon has
indicated interestin cooperating with Nigeria in the exploration of
petroleum products from deposits on Ourcommon maritime borders
which had beenunder dispute.
2. It would be recalled that Cameroonian Govemment had been
prospecting foroil in the area which it considered asfallingwithin her
temtory under the 1975 Maroua Declaration. Nigeria too had been
prospecting for oil in the same zone. But according to geological surveys, productivity of oil in the zone has only a life span of two
years.
3. Perhaps inspiredby the burgeoningimprovementin Ourrelations,
particularly on-border issues, the Cameroonian Government has
suggestedthat both countries shouldjointly exploit the bynusing
the techniqueof injectingwater into the wellon the Cameroonianside
and pumping out oil from the Nigerian side and thereafter share the
costs and benefitsof production.
4. We are informedthat a forma1proposal along the above line will
soon be forwarded toNigeria. In the meantime, we are strongly
inclined to commend the proposal for your favourableconsideration
because it accordswellwith newthmst in forgingaccommodationand
peace with Cameroon and Nigeria's overall policy of good
neighbourliness.
5. Our recommendation is however, without prejudice to your
technical judgement as wellas the strategic implications and the
economicviabilityofthe project. A sketchmap indicatingthe oil fields
in the disputedareais anachedherewith" (NC-M193).
(m) The Rio del RevPort
10.107 The settlementand port of Rio del Reyhas long been establishednear the head of
the wdtenvay,on the left bank of the Rio del Rey River. On 29 September 1960
@rior toNigeria's accession toIndependence) the Rio-del-ReyPort Declaration
Orderwas made under powersconferred by legislation,in particular the Ports Act
1954 (asan-~ended).~'"
10.108 The Order formallydefinedthe limitsof Rio-del-ReyPort. It did so in terms which
included in the area of the Port the whole of the main stream of the RReydel
below4"45' North and extendedsouthwardsfor some distancebelowthe mouthof
the Rio del Rey. The text of theder is at Anna NC-M 194,'and Arh Map 37
showshow those limits transpose ont0 the relevantchart.
'14 Cap361of the ConsolidLawsof theFederatof Nigeria199010.109 The Rio-del-ReyPortremained afull workingPortadrnuijsteredby Nigeriansafter
Independence. The Order itself remains in force.215Carneroondid notprotest
againstthe Order at the time the Order wasmade, or at anytime since.
(n) The Collectionof Customs Duties
10.110 The collection of custorns duties was taken into account by the Court in the
Minquiers and Ecrehos case.z16 The exercise of customsjurisdiction VAS also
takeninto account inthe Rann offifch Arbifrari~n.~~'
10.111 Nigeria has operated a regular Customspatrol in the Bakassiarea. Documents
fromthe Nigerian CustomsServicerevealthat officersof the CustomsDepartment
at Ikang,Nigeria,regularlypamlled the BakassiPeninsulauntilat least July1970.
The areaof their patrol included, forinstance,the BakassivillageNkan Okure
(NC-M 195).
(O) Use of NieerianPass~orts bv Residentsof the BakassiPeninsula
10.112 Residentsof the fishingvillagesin the BakassiPeninsula use Nigerianpassporîs.
Thepassportapplicationformsat NC-M 196showthat people from AkpaNkanya,
Nkan Okure and IneMbahaveappliedto Nigeriafor Nigerian passports in order
to travelto Cameroonand elsewhere.
'15 LawNo.154of theConsolidaLaws of theFederationof Nigeria1990
'16
'17 I.C.I.Rep. 1953pp.66.69
Sec theOpinionof theChairman.R.I.A.A.. Vol.XV557-8. @) lmmieration
10.113 The immigrationpost atIkanghasbeen inusesinceOctober 1966 (seethe Handing
Over Notes for theImmigration Office at Calabar dated October 1966and
September 1977, NC-M 197 and NC-M 198). This post was located at Ikang
because Nigeria's interna1road system in the area terminated at Ikang, and
thereforenytravellersby vehicleor footto the borderwouldhaveto pass through
Ikang.
10.114 At NC-M 199 are the records for the immigrationpost in April and May 1988.
These show the passageof persons entering Nigeria withidentity cards. All the
persons mentioned were travelling into Nigeria from Lobein Cameroon (also
No-one hm any of the villagesin Bakassi isnoted. If
knownas Ekondo-Titi).
thepeopleofBakassi wereCameroonian,theywouldcany identitycardsandwould
havebeennoteddownat Ikangimmigrationpost, givingBakassisettlementsas their
Port of Embarkation.There is no evidenceof this.
(q) LocalAdministration
10.115 BeforeOctober 1, 1960,the BakassiPeninsulawasadministeredunder Calabar in
accordance with Akpabuyo County Council (Establishment)Instrument 1953,
publishedinthe EasternRegionPublicNoticeNo. 86of 1953as amended (cfpara.
9.55above)(NC-M 137).
10.116 AfterIndependence,Bakassiwasadministeredas a part of Nigeriaby virtueof the
followinglegislation:
(1) The LocalCouncils(CalabarDivision) (EstablishmentI)nstrument, 1953of
EasternRegionLegal Notice No. 88 of 1953, as amended by Legal Notice NO.267 of 1959 and Eastern Nigena Local Govemment NoticeNo. 1 of
1963 (underIkangLocal Council)(NC-M200).
(2) The South Eastern State DevelopmentAdmiistration Edict No. 7 of 1972
(whichrepealedSouthEasternState Development AdministratioE ndictNo.
18of 1971)under "Ikang DevelopmenA t rea"and "EffiatIIbakaDevelopment
Area" (NC-M 178).
(3) The Cross River StateLaw on Local Government(No.9 of 1983) (seein
particularp.A 69) (NC-M201).
(4) DecreeNo. 36 - States(Creationand Transitional Provisio-)of 1996.This
Decree constitutedBakassiintoa LocalGovemmentAreaunderCrossRiver
Stateof Nigena withHeadquartersat Abana (NC-M202).218
(5) Decree No. 7 - Local Govemtnent(Basic Constitutional andTransitional
Provisions) Decreeof 1997(NC-M203).215
10.117 In 1975the appointmentof Justicesof the Peacewasreported inthe South-Eastern
Stateof NigeriaGazene (NC-M204). TherelevantSouth-EasternState NoticeNo.
248 refers to the appointmentof ChiefAkwu Edem Archibongin respect of the
"Area normallycoveredby the PoliceStationat Ikang."
(r) Interna1Nieerian Staterivalm overBakassi
10.118 After the division of Cross River Stateinto two smaller States,waIbom and
Cross River in 1987, the villageson the BakassiPeninsulawere administeredby
three different localauthoritiesin two separateNigerian States. AkpabuyoLocal
Annexes202 and203containtherelepages. Fullcopiesof thetextshavebeenlodgedat theCourt Authorityin CrossRiverStateadmiistered the northernvillages, while MboLocal
Authority and Okobo Local Authority in Akwa Ibom State administered those
villagessituated in the southof the PeNnsula.
' 10.119 As a result of this division of authority,there arose some confusionover which
local authority should admiister the BakassiPeninsulaas a whole. Both States
claimed that the BakassiPeninsulawas within its sphere of admi~stration for a
nurnberof traditional, culturaland economic reasons.The MilitaryAdministrators
of the two States were both increasinglyinvolved in promoting the Nigerian
l presenceon Bakassibugh State administrative activities.
i
10.120 Therivalrybetween theStates continuedbugh to1996, whenthe States (Creation
and TransitionalProvisions) Decre1996 was promulgated. This Decree created
BakassiLocal GovenunentArea, with itsheadquartersat Abana,as part of Cross
RiverState. Thishasresolvedthe interna1Nigerianconfusionas towh'ichStatehas
therightfulauthorityand administrationoverthe wholeof the BakassiPeninsula.
(i) Conclusion: the Elements of Historical Consolidation
10.121 The variouselementsconstitutingtheprocessof historicalconsolidationof titlecan
now be summarised:
(1) The original titleof the City Statesof Old Calabar.
(2) TheattitudeandethnicaffiliationsofthepopulationoftheBakassiPeninsula.
The Efi koponymyof the Bakassi fishingvillage- see Chapter3.
(3)
(4) The administrationof the regionas part of Nigeriain the per1913to the
dateof Independence -see Chapter9. (5) The exerciseof authontyoverthe villages andclansof Bakassibytraditional
Rulerseitherbased in Calabaror othenviseowingallegiance to Nigeria.
(6) The exerciseof jurisdictionby customarylaw courts by virtue of Nigerian
legislation.
(7) The long-established settlementf nationalsof Nigeria in theregion.
(8) Manifestationsof sovereigntby Nigeriaafter Independencein 1960.
10.122 Tothese elementsmay be addedtwo others: acquiescenceand recognition.These
significantelementswillbe examinedin the followingtwosections.
D. The Acauiescence ofCameroon in face of the PeacefulExerciseof Sovereientvby
Nieeria
The LegalRelevance of Acquiescence
(i)
10.123 Thepreciseroleof acquiescencein Nigeria'sclaimcallsfor explanation.Inthe first
place, acquiescencefonns a very significantelement in the processof historical
consolidationof title.Thus its first (but by no means exclusive) role isplayed
alongside the elementsof historical consolidationreviewedove.
10.124 The second role of acquiescenceis that of confirminga title on the basisof the
peaceful possessionof the temtory concerned, that is to say, the effective
administrationof the Bakassi Peninsula by Nigeria, acting assovereignand an
absenceof protest.In thiscomection a passage from theJudgmentof the Chamber
in the Lnnd,Islandand MaritimeFrontierDisputeprovidesa general paradigm: "The conclusionat which the Chamber arrives in respect of the
disputed islandss thusthe following.It is the Chamber'sduty,under
Article 5 of the SpecialAgreement,totake intoaccountthe 'nilesof
InternationalLaw applicable between the Parties,including, where
pertinent, theprovisionsof the GeneralTreatyof Peace'. In relation
to the islands in dispute,the 'documents whichwere issued by the
Spanish Crownor by anyother Spanishauthonty,whethersecularor
ecclesiastical'.do not appearsufficientto 'indicatethejurisdictionsor
limits of temtories or settlements'in terms of Article 26 of that
Treaty,so that no firm conclusioncan be based upon such material,
taken in isolation, for deciding between thetwo claims to an uti
possidetis title. Underthe finalsentenceof Article26, the Chamberis
howeverentitledto considerboththe effectiveinterpretationof the wi
possidetis by the Parties, in the years followingindependence,as
throwinglight on the applicationof the principleand the evidenceof
effectivepossession and control of an island by one Party without
protest by the otheas pointing to acquiescence.The evidenceas to
possessionand controland thedisplayand exerciseof sovereigntyby
HondurasoverEl Tigre and byEl SalvadoroverMeanguera (towhich
Meanguerita is an appendage), coupled in eaccase with theattitude
of the other Party, clearly shows however, in the view of the
Chamber,that Honduras was treatedas havingsucceededto Spanish
sovereignty overEl Tigre, andEl Salvador to Spanish sovereignty
overMeangueraand Meanguenta. (emphasisadded)
1 10.125 In the third place, acquiescencemay be characterisedas the maincomponentof
title, that is, providing the essence and very foundationof title rather than a
I
confirmationof a title logically anteriotoand independentof the process of
I
l acquiescence.There can be no doubt that in appropriate conditionsa tribunalcan
properlyrecognise atitle based upontacit consentor acquiescence.
10.126 The independent roleof acquiescenceas a sourceof title is acknowledgedin many
passagesin the Judgmentof the Chamberin the caseconcemingthe ïund, Island
and MaritimeFrontierDi~pute.~ The pertinentpassagesincludethe following:
paras. 67, 80, 81, 169, 176, 280, 284, 341, 345, 364 and 368. The following
passage expressestherole of tacit consent withclarity:
'19 I.C.J.Rep1992p.579.para368
''O I.C.1 Rep1992p.351 "The Chamber considers that this protest of Honduras, coming after
a long history of acts of sovereigntyby El Salvador in Meanguera,
was made too late to affect the presumption of acquiescence on the
part of Honduras. The conductofHonduras vis-à-visearlier effectivirés
revealsan admission, recognition,acquiescenceor other form of tacit
consent to the situation. Furthermore, Honduras has laid before the
Charnber a bulky and irnpressivelist of material relied on to show
Honduraneffecrivitérselatingto the wholeof the area inlitigation,but
fails in that material to advanceany proof of its presenceon the island
of Meanguera. ""'
10.127 It may also be recalled that the Chamber in the case conceming the Frontier
Dispute (Burkina FasolRepublic of Mali) accepted that acquiescence, if proved,
wouldbe conclusiveof the main issue. In the wordsof the Chamber:
"The Parties have expounded at length the origins of the frontier
dispute which is presentlybeforethe Chamber.Sincehoweverthe line
of the frontier has to be definedas it existed inthe y1959-1960,
and the hrties agree that no legal validityattaches to any subsequent
acts of administration which may have been performed by either of
them on the temtory of the other, a review of the frontier incidents
and the efforts made to bring the dispute to an end would hardly be
pertinent. Nevertheless, one Burkinabe argument warrants particular
attention. This argument is based on the conduct of the Malian
Government during the negotiations which led to agreements being
concluded for the delimitation of the 900 or 1,022 kilometres of
frontier which are no longer in dispute, and on that Government's
attitude towards the work of a Mediation Commission of the
Organitation of African UNty which sat in 1975. According to
Burkina Faso, Mali accepted as binding the solution to the dispute
outlined by that Commission. Sincethis argumentfrom acquiesence
would, ifcorrect, makeit unnecessaryto endeavourto establishthe
frontierinheritedfrom the colonialperiod, if shouldbe dealt withat
the outsetas a preliminaryquestion."" (emphasisadded)
I.C. J.p.1992p. 577. para.361
i " I.C.I.Rep. 1986P.570. para.34 (ii) TheLegalPosition
10.128 The evidencewillbe exarnined in due course.Atthis stageit is necessarytopresent
a statementofthe legalpositionon whichNigeriarelies. The evidence indicatestwo
stages inthe post-Independenceperiod.
10.129 Stage 1. From thetimeofIndependenceuntil1968 Nigeriahadpeacefulpossession
of the BakassiPeninsula,whichcontinued to be administered as partof the South-
EasternStateof Nigeria.In 1968therewereactsof harassrnentfrom Cameroonian
soldiers which were aimed at some of the Nigerian fishing ports. However,
Cameroonhad no systemof administrationin place.
10.130 Stage 2. From 1972there wereCameroonian initiatives concerningthe renaming
of villages whichwere ineffectivebut whichclearly indicated theabsenceof any
Cameroonianadministrationin the region.From 1972onwards thereweresporadic
Cameroonian activitiesbut Cameroon did notexerciseoverallor exclusive conml.
10.131 The significantcharacteristicsof the situationcan be now identified:
(1) At least until 1968Nigena exercised peacefulpossessionof the Bakassiand
Cameroonacquiescedin this sfafusquo.
(2) At no stagedid Cameroonexercise peacefulpossession.
(3) TheeffectivepossessionofNigena after Independence confirmedthe original
titlewhichsubsisted as a consequenceofthe non-implementation ofthe 1913
Treatyin the Bakassi region.
(4) Even if original titlecannotbe proved, the effective possessnf Nigeria is
to be found in actsmanifesting a continuous and peaceful display of.
sovereigntyoverthe temtory. Althoughthis sovereignty musb t e continuous in principle,it need nbe exercisedat everymoment,so longas there is an
intentionand willto act as sovereign.Howextensive theactsof sovereignty
need tobe dependson thenatureof the territory.
(iii) The Allegationsconcerning effectivitésn the Cameroon Memorial
10.132 The sectionofthe CameroonMernorialrelatingtoalleged"Cameroonianeffecrivités
in the BakassiPeninsula"@p.486-96) is very revealing. In thefirstplace thedata
refersto nomaterialprior to 1968and very fewitems before1973.
10.133 The Cameroonian assertions(pp.490-6) in this respectcan be analysedas follows.
10.134 Para. 4.430. The key item of legislationreferred to is dated 30 August 1968.
This documentis not provided,nor either of thetwo Decreesalso referredto. It
is thereforenot possible to commenton the area of authority of the three Sub-
Divisions. Futthermore,only legislationis indicatedand no reference ismade to
specific actsof administration.
10.135 ha. 4.431. The reference hereis to the VillageDictionary of NdianDivision,
publishedin 1973, which doesnot appear to havean authoritative status.
10.136 Para. 4.432. Thisparagraphcontainsreferencesto instrumentsoftheperiod 1973-
1993, but there is an absenceof documentary evidence.
10.137 Para. 4.433. This documentinvokedis dated 1 July 1976, sixteenyearsafter the
independenceof Nigeria and Cameroon. It has not been possibleto identiQ this
documentin Cameroon'sannexes. In generalterms,Nigeriareservesher position
on the significance,if any,of the documentconcerned. 10.138 Para. 4.434. In this paragraph theassenions of the Cameroon~ovemment are not
backed byany evidenceand no dates are given.
10.139 Para.4.435. The data cited here are unsupportedby any documentsand relate to
alleged eventsof 1993.
10.140 Para. 4.436. No evidence is provided to support the assertion containedin this
paragraph.
10.141 Para. 4.437. No evidence is provided tosupport the assertioncontained inthis
paragraph. Nigeria would point out, however,that Mbongois situated about50
kilometres inside Cameroonian temtory and is therefore not in the vicinity of
Bakassi (see Atlas, Map 38). The Nigerians referred to are, undoubtedly,
expatriatesliving inCameroon.
10.142 Paras. 4.438 and 4.439. No evidence is provided to support the assenions
containedin these paragraphs. Furthemore, Ine Udo is not locatedby Cameroon.
10.143 Para. 4.440. The document quoted here (MC 265), dated 12 February 1982,
makes no referenceto the BakassiPeninsulaand has no relevance.
10.144 Fara ..441. No document relatingto this paragraphhas beenproduced. Without
l
reference tothe text of the document as a whole, it is not possible anyraw
I inference.
10.145 Para ..442. None of the towns referred to in this Decree are located on the
BakassiPeninsula. They are al1withii Camerooniantemtory (seeAtlas, Map 38)
and thereforehaveno relevance.
10.146 Para. 4.443. The document quoted here is not providedin support. Five of the
places referretointhis paragraph are not on the Bakassi Peninsula (see Atlas, Map 38), but located within Cameroonian temtory, and therefore have no
relevance.
10.147 Para. 4.444. No documents are provided in support of the assertion in this
paragraph.
10.148 Para. 4.445. This assertion is not linked to the Bakassi Peninsula. Mbongue,
Idenau and Bamuso are al1 located 50 or more kilometres from the Bakassi
Peninsula (seetlas, Map 38). Furthemore, no documentsare providedin support
of these assertions.
10.149 Paras 4.446, 4.447, 4.448and4.449. No documentsare providedto supportthe
assertions contained in these paragraphs, with the exception of paragraph 4.448
(refemng to MC 255). It may be noted that the period involvedis long after the
independenceof Cameroon and it is apparent that no earlier evidenceof revenue
collectionexists.
10.150 Paras 4.450 and4.451. No documentsare providedto support the statementsin
theseparagraphs. Nigeriawouldpoint out that Idombi,Bamuso andMundembaare
not on the BakassiPeninsula,but withinCameroonianterritory(seeAtlas, Map38).
10.151 Para. 4.452. No documents are provided in respect of the allegations in this
paragraph.
10.152 Para. 4.453. No documents are provided in respect of the allegations in this
paragraph. Furthemore Nigeria would point out that, of the villages referred to
in this paragraph, none of them are located on the Bakassi Peninsula, but are al1
within Cameroonian territory (seeAtlas, Map 38).10.153 Para. 4.454. No documentsare provided.Of the villagesreferredto, onlyIdabato
(called WestAtabong by Efiks)is locatedon the BakassiPeninsula, andthe area
aroundWestAtabongis not conducive to farming (cf.Chapter3).
(iv) The Evidence of Acquiescence by Cameroon in face of the Exercise of
Sovereignty by Nigeria
10.154 The evidencecan be examinedconvenientlyin separatephases.
(a) Phase 1: 1960to 1972
10.155 For the periodof twelveyearsendingin 1972the Bakassiregionwasadministered
continuously as apart of Nigeria,this situationreflectingandcontinuingtsrutus
quo obtainingbeforeIndependence (Chapter 9).
In this period there were occasional episodesof harassment by Cameroonian
10.156
officialsbut no sustainedeffortby Cameroonto administerthe BakassiPeninsula.
10.157 In March 1968,immediatelyafter theendofthe civilwar,Cameroonsought totake
advantageof the vulnerabilityof the Nigeriancivilianpopulationon the depamire
of the Nigerianmilitary presence, which had been establishedunder Isaac Boro.
The Nigerian inhabitantsof certain of theishingports facedthe suddeneruption
of Camerooniansoldiersin ten largelaunchesand other craft. The soldiers later
movedinto West Atabong where theyoccupied somebarrackswcated by unitsof
the NigerianArmyonlytwoweeksearlier. Afewdaysafterwardsan administrative
officerfrom the Republicof Cameroonarrivedat West Atabong and informedthe
inhabitants thattheyshouldregardthemselvesas Cameroonian nationals.10.158 'Thesefactsare recountedin detailina Petition(NC-M205)fromthe fishingports
of theBakassiPeninsulaaddressedto the FederalMinistry of External Affairsof
Nigeria. In thePetitionthe following passageare of particular interest:
"(0 An AdministrativeOfficer from the Republicof Cameroun
arrivedat WestAtabong withina fewdaysafterwards(Le. on
or about the 10thof April 1968as reported),and inhis address
to the localinhabitants assemblefor the purpose he exhorted
them from henceforthtoregard themselvesas Camerouniansby
nationality and to use Cameroun Currency and to trade at
Victoriainstead of Ikang, Oron and Calabar as hitherto; and
also that a PolicePost, a localDispensaryand a Schoolwould
soon be built there for the people by the Governmentof the
Republicof Cameroun.
(g) On the next dayafter thearriva1of the troops(i.e. on Tuesday
the 26thof March 1968),a team of white officialsreputed to
be in the employ of the Shell Companyalso arrived in the
AREA IN DISPUTEreportedlyon an exploratory tourof the
mangrove swampstherein -they amved during the morning
hours and left in the afternoonof the sameday."
10.159 The contents of the Petition provide significant evidenceof the absence of any
Cameroonianpresencein the regionprior tothe eventsof March 1968.
10.160 Similar disturbancesof the statusquo, this time at Abana, were reportedin a
NigerianAide-Mémoire dated 19December1968,in the followingterms:
"Reports from the Nigerian Ministry of Defencehave indicatedthat
some Camerounsoldiers havebeen molesting Nigerians(soldiers as
well as civilians)alongthe borderbetweenthe twocountries.On the
11thof December, 1968, for instance,Camerounsoldiers were said
to haveseizedthreeNigeriansoldiersat Abana near Ikang.The three
Nigerian soldierswho wereon a river patrolweretakento Cameroun
Republic and their three rifles as well as a flying boat were
confiscated. Reporthavealso beenreceivedthat Nigerian villagersat
Abana are being forcedto sel1their fish in the Camerounand pay
taxes tothe CamerounRepublic. 2. The Nigerian Govenunent would be very grateful if the
Government of the Cameroun in the usual fraternal spirit could
investigatethese reportswith a viewto takingcorrectivemeasuresso
as to prevenany clashesbetween thesoldiersof bothcountriesalong
the border. Nigerian soldiers have been given strict orders nto
retaliate. Urgentaction will, therefore,be appreciatedon the part of
the CamerounGovernment." (NC-M206)
10.161 In 1970 the Nigerian Government hadoccasion to protest about Cameroonian
activities inbana, a long-establishedfishing village within Nigeriantemtory
(NC-M 207). The Note recountsthe suddenoccupationof Abanaby force, the
closureof the school, and the detentionof theachers.Lie the previous episode
this conductindicates the absenceof any Cameroonianadministrationor control
pnor to the incidentin 1970.
(b) Phase2: 1973to the Dateof the CameroonianA~~iication(29 March 1994)
10.162 From 1973onwardsthe evidencesuggeststhat the Governmentof Cameroonhad
decided to seek to change the Nigeriancharacter of the Bakassiregion and to
attemptto createevidenceofa certainlevelof Cameroonian presence ithe region.
Asthe Court will see, the Cameroonianpresencewas episodicandprecarious.
10.163 A developmentwhich involvedthe period 1972 to 1975 was the appearanceof
Cameroonian legislationwith the purpose of changing theplace names in the
Bakassi Peninsula. The measures concernedwere as follows. Late in 1972 a
Cameroonian officialmadeproposalsfor the renamingof fishingsettlementsin the
"Idabato District" (NC-M 208). The outcome appears to have been a draft
PrefectoralOrder,dated31 December1973,purportingto change thenamesof the
Nigerian fishing villages in e akassiregion (NC-M209). Finally,a definitive
PrefectoralOrder waspromulgatedin 1975(NC-M210).
10.164 The preambular part of the Prefectoral Order of 1975 and Article 1 of the
instrumentare very significant: "Mindfulof Decree No. 721349of 24th July, 1972, organising the
United Republicof Cameroun;
Mindful of Decree No. 721422of 26th August, 1972 defining the
functionsand powersof Headsof Admiisttative Units;
Mindfulof Decree No.721DF130of 17thJanuary, 1971,creatingthe
DistrictJabane:
Mindfulof Decree No.73171of 7th March. 1973,changing thenames
of JabaneDistrictto IdabatoDistrict;
Mindful of Decree No. 731470of 23rd August, 1973 appointing
Mr. MichaelNkamsi,Prefectof NdianDivision;
Consideringthe necessityof stabilityand proper administration;
Article1: The namesof al1the fishingsenlementsin IdabatoDistrict
appea~g in Column1 in the followingSchedulehavebeen
changedto thoseappearingin ColurnnII of the Schedule."
10.165 The languageemployedin the preambleprovidesunequivocalproofthatuntil 1973
(at the eariiest)there wasno Cameroonian claim to adminise akassiregion.
Moreover,the claimto changethe long-establishedNigerian placenamesinvolves
an egregiousattempt to challengethe legsraruquo (the exerciseof Nigerian
sovereignty) andthe ethniccharacterof the senlements (Nigerianand Efik).
10.166 The Cameroonianincursionsin the period 1972and 1973provokedtrongprotests
fmm the traditionalauthoritiesinCalabar(the Etuboms' CouncPetitionofthe
Etuboms'Councildated6 July 1973reads (in part) asllows:
"PROTESTNOTICEAGAINSTTHE FORCEFULEJECTMENTBY
THE CAMEROONS GOVERNMENT OF NIGERiANS OF EFIK
ORiGINFROMLANDFORMERLYTHEJURISDICïIONOF THE
OBONG OF CALABAR NOW BY LAW TERRITORYOF THE
FEDERATIONOF NIGERIA.
cc: The Hon. the Commissioner forInformati&nCulturalAffairs The Etuborns'Councilof Calabar,for and on behalfof His Highness
the Obong of Calabar (now in traditional seclusion), crave the
indulgence ofHis Excellencythe Govemorof the SouthEastem State
of the Federation of Nigeria, through the good officesof the
Honourablethe Comrnissionerfor Home Affairsand SocialWelfare,
to registerhis PRûïEST tothe Head of Stateof the FederalMilitary
Govermnentof the Federationof Nigeria against the conduct of the
Cameroons Govenunent which has, unilaterally, ejectedpersons of
Efikoriginfrom theBAKASSIPENINSULAandthe landadjacentto
the AKFAYAFE RIVER which wereformerly thenaturaljurisdiction
of His Highness the Obong of Calabar and now part of the
FEDERATIONOF NIGERIA.
1. Ithas been authoritively reported (The Nigerian Chronicle,
Monday,July 2, 1973 -No. 124)that Nigerian fishemen living
in fivevillages dong the NigenanlCameroon border have been
ejected and warned never to corne back unless with Cameroon
visa." (NC-M211)
10.167 In 1973 therewas also a Petitionfrom the AtabongWelfareAssociation basedin
I
Calabar, which complainedof harassment from Cameroonian gendarmes. The
I
I Petition was addressedto the Honourable Commissioner forHome Atfairs and
Social Welfareof the South-EastemState of Nigeria, representingthe Military
l
Govemorof the State(NC-M212). Thekeydescriptionsof the harassmentare as
follows:
"Wecounton His Excellency'sassistanceand CO-operationin freeing
the Atabong and the entire Efiat people from humiliation and
defilementin thehandsoftheCameroun gendarmes and theoppressive
and repressive measuresbeing mened [sicout to Ourpeople by the
Camerouns Anned Forces stationedat Atabong FishingPort.
1
The Atabongpeople like al1other South-Easterners,sufferedmuch
during the periodof the Civil War but their sufferitodayappear
unjustified.Weare treatedlike apeople ina Police State, andvirtually
compelled to live in a military camp, being denied freedom of
movement.Our wives are not treated aswomensince any gendarme
can seize a woman'swrapper on the road leavingher half-clador
nakedifhe likesthecloth. Theyentera man'shouseand rape thewife
in the presenceof thehusband andgetthe husbandbeatento the point
of death at the slightestsign oftest. These beastly men have no regardsforhumandignityandtheirDistrictOfficersappearto haveno
powersover them. They beat one of Oursons to death about a year
ago, and as recently as January,1973 they beat another of Ourson
almostto death and hadcarried hi awayto Camerounshis fatestill
unknownto us today.
These may sound like stones but they are daily occurrences at
Atabong on the Bakasi Peninsula. There could have been several
exhibitsas proofsofthesebrutal actsif Atabongpeoplehadthe chance
of bnnging victims to Calabar or Oron. People trying to bring up
victirnsevenon pretextof comingto the hospitalfor treatrnenthave
been intercepted and beateup."
10.168 In 1973 Cameroonianofficialsattemptedto collect land rentsfrom Atabong and
other Nigeriansenlements.The inhabitantsrefusedto pay andcomplainedthrough
theu Chiefsto the Nigerian Embassy in Yaoundé (NC-M 213). Their particular
complaintwasthat no one "fromtime immemorial"had ever askedthe inhabitants
to pay land rent.
10.169 Other petitions came from theinhabitantsof the region, includingthe people of
Atabong. In this context the Petition dated6 February 1974 is relevant.The
openingpassagesof this documentread as follows:
"Wehave the honour most respectfulto present this petition to the
Honourable the Commissioner foH r ome AffairsSES)prayingthat the
Hon. Commissionermay use his good offices to prevail upon His
Excellency'sGovernmentof the South EasternStateto devisepositive
measures toprotect theinterestofSouth Easternerswhoseonlysource
of livelihoodisnow in jeopardy owing tothe untowardconduct of
Cameroons national on the Nigeria/CameroonsBorder, and our
humblepetirionsheweth asfollavs:
2. That we, the petitioners, represent asmanyas thii-five thousand
sufferingcitizensof the Southeastern Statedrawn(1)Ito Division,(II)
Oron (III) Uruan (Eyo Division), (IV) Imet, (V) Ibesikpo, (Uyo
Division) who are primarily engaged in the fishing andshriiping
industryand weherebyassociateourselveswiththe appealpreviously
made by the peopleof Atabong to the Honourable Commissioner
against unremittingacts of molestationof persons of South Eastern Stateoriginby nationalsof the Republicof the Cameroons." (NC-M
214)
10.170 An episodein 1976indicatesthe stateof affairsthenprevail'i. Four Cameroonian
navymen attackedthree Nigerian fishermenatAbana, killingone and wounding
another.In the aftermaththe localpeople capturedone of the Camerooniannaval
personneland he,togetherwiththe naval patrol boat involved,weretakento Ikang
and the incidentwasreportedto the Nigerian policeon 27 December 1976. The
background to the incidentwas the subject of an investigationby a StateC.I.D.
(CrimimalInvestigation Departmentteam from Calabar, which conductedan on-
the-spot investigatatAbana.
10.171 The resultingNigerian police rep(NC-M215) is detailedand objective intone.
The prevailingstateof affairsis describedas follows:
"TheNigerians mentioned in paragraphwoaboveare Ijawtradersand
fishermen who are based at Ikang and camed on their profession
between Ikang and Abana fishing portsAbana and Ikang are
contiguous fishing ports. Abana is claimed by the Republic of
Cameroun though the inhabitantsare al1 Nigerians whilIkang is
indisputablya Nigerianfishing andcommercialtownon the Nigerian
shore about40 kilometressouth of Calabar.By reasonof occupation
by Nigerians, Nigeria has a de jure control ofAbana while the
Cameroun exercises a de facto jurisdiction over the fishingport.
Further South of Abana, the CameroonianNavy maintains aunit
based at Atabong, itself a disputed fishing port from where the
Cameroonian Navy directs patrols off the continental shelf of
Camerounincluding Abana. "
10.172 The implicationsof this document are several. In the first place, the Calabar
criminal investigationdepartment obviously regarded thearea as Nigerian and
therefore,s a matter of normal operationalduties, exercisedauthorityon behalf
of Nigeria. Secondly, the Nigerian view of the overall situation is that the
Cameroonian presence amounts to no more than the exerciseof a "de facto
jurisdiction".hus a fairly low level ~i~erian'official, with local knowiedge, regards the territoriastatusquo as essentially Nigerian ("Nigeriahas a de jure
control .."),whilstcharacterisingthe Cameroonianpresenceas lackinglegitimacy.
10.173 The incidentsat Abana produced an exchangeof diplomaticcorrespondence. In a
Note dated 31 December 1976 the Govenunentof Cameroon made the following
assertions:
"Frominformedsources, it is believedthat during a routine inspection
course inABANA,a Cameroonianvillagenear the CarnerounlNigeria
border, 2 warrant officers were made to meet their death by three
Nigerian civilians. Witnesses tothe scene Say that gun shots were
heard beforethe disappearanceof the boat.
Searchesmade led to the fishingout of 2 bodies
- that of a Cameroonianwarrant officer
- and that of a Nigeriancivilian
After burial of the two bodies it was discovered that the Nigerian
civilian was a police officer.The second Cameroonianwarrant officer
was kidnapped and imprisoned in IKAN village in the Nigerian
territory.
The Ministryof ForeignAffairswouldlikethe Embassyof the Federal
Republicof Nigeria to pass this informationto its govenunent and if
the above is true, to immediately release the warrant officer now
irnprisonedin Nigeria." (NC-M 216)
10.174 The Nigerian reply was as follows:
"The Embassyof the FederalRepublicof Nigeria in Yaoundé presents
its compliments to the Ministry of Foreign Affairs of the United
Republic of Cameroun and has the honour to refer to the incident at
Abana on 26th December, 1976, which resulted in the deaths of a
Nigerian and a Cameroonian.
2. The Embassy wishes to inform the Ministry that as a result of its
Note No.809/DIPL/l of 31st December, 1976, the Nigerian Consul-
General in Buea went to Calabar, and secured the release of Sergeant
Paul Njotu and the NavalSpeed Boat which were taken to Ikang after
the incident and was also able to leam that the incidentinvolvedthree Nigerian fishermenand four members of the Cameroun Navy.
Accordingtoinformationavailabletothe Nigerianauthorities, Mr.
JonaEkpenyonwho is nowheldin BueaPrison inconnectionwiththe
fight did not take part in the incident which led tothe death of
Corporal Njongoof the CamerounNavyand the Nigerian fisherman
Mr. SirneonAnki. But investigationsare still continuingand those
involvedwill soonbe broughtto trial.
3. In view of the foregoing, the Embassyhopes that Mr. Jona
Ekpenyongwill be releasedto the Nigerian Consul-Generalin Buea
for repatriation. This gesturewill notSavean innocentmanfrom
sufferingbut also further strengthenthe cordial relations which so
happily existbetween thegovernmentsof Nigeria andCameroun."
(NC-M217)
10.175 There is no suggestion inthis Note that Nigeriarecognisesthat the inquo is
Cameroonian territory. The general tone conveys Nigeria's acceptance of
responsibilityfor the maintenanceof publicorder Abana.
10.176 In the period1991to 1993episodesofCameroonian harassment continuetdo occur
but Cameroondid not maintaina systemof exclusiveadministration. Examplesof
this harassmentare foundat NC-M 218and NC-M219.
10.177 There is clear evidence thatCameroonwasawareof an ongoingNigerian presence
in the Bakassi region. Cameroonian protests tended to reflect discoveriby
Cameroon agents thatthere was a Nigerian-maintainedsratusquo in place. An
exchangeof notes in 1991 illustrates the point very well. On 16 May 1991
Cameroon sentthe followingNote toNigeria:
"The Ministry of Extemal Relationsof the Republic of Cameroon
presents its complimentsothe Embassyof the Federal Republicof
Nigeriaand has the honour tobringtothe latter'sknowledgethat:
information has been received from the South West Province of
Cameroon that there is the persistent presence,at Jabane, of the
Nigerian police fromAKWAIBOMState. It would appear thatAKWA IBOM State wants to annex JabaneA
sign post is said tohavebeen put up there and authorities of AKWA
IBOM State are alleged to have promised to build a school ana
health centre for the people of the locality.
This unfriendly attitude had already been brought to the noticeof the
Chargé d'Affairesof the Embassy who was received at the Ministry
in January 1991.
Consideringthe senous implicationsof suchactson the sovereigntyof
Cameroonas wellas on the relationsof good neighbourlinessbetween
Ourtwocountries, the Ministryof ExternalRelations wishesto request
the Embassy to contact the Govemment of the Federal Republic of
Nigeria to cause the authorities of IKWIBOM State to withdraw
from the Cameroonianlocality of JABANEwith immediateeffectand
to refrainfrom any future acts likely to strain the excellentfriendship
and CO-operationlinksuniting Ourtwocountries.
The Ministry would like to be informed of the outcome of this
peacefuldemarcheand availsitself of this opportunityto renewto the
Embassy of the Federal Republic of Nigeria the assurances of its
highest consideration." (NC-M 220)
10.178 This démarcheprovokeda Nigerian response, the content of which affims the
existence of Nigerian control of theegion and the lack of justification for the
Cameroonian actions. The Nigerian Note, dated 10 June 1991, was, in material
part, as follows:
"The Embassyof the FederalRepublicof Nigeria in Yaoundépresents
its complimentsto the Ministry of Extemal Relationsof the Republic
of Cameroon and with reference to the Minisuy's Note No.
3374/DIPL/I of 16thMay, 1991has the honour to informthe Ministry
that the appropriateNigerian authoritieshavebeen duly informed.
The Embassy wishes to suggest that the issue of Our Common
Maritime Boundaries be put forward for discussions at the next
meeting of the National Boundary Commission with emphasis on
Abana, a smallfishingvillage locatedin theAtlanticOceanandfom
part of Mbo Local Governmenr Area ofma-lbom StareofNigeria. Itwas also reportedthat CameroonianGendarmescrossed inrothe
area and removed theNigerian NationalFlag and arrested seven
oflcials of theMboLocal Governrnt ouncil.
It would be highly appreciatedif the Cameroon authonties would
investigatethe incident and also arrangethe releaseof the arrested
Nigerianpersons including the Nigerian NationalFlag and other
propertiesremovedfroAbana.
It is in the interestof al1to continueto maintainand strengthenthe
cordial and brotherly relationship thatxistsbetweenOurtwo
peoplesand countries." (emphasis added)(NC-M221)
l 10.179 Severalsimilarexchanges took plin 1993.On 26 April 1993Nigeria protested
about the harassmentof Nigeriancitizens "livingin the disputedareas of Bakassi
l
l Peninsula"(above,paragraph10.176andNC-M219). In response the Govemment
of Cameroonstatedits position asfollows:
~
"The Ministryof External Relationsof the Republic of Cameroon
presentsts complimentsto the Embassyof the Federal Republicof
Nigeriaand,ollowingthe latter'sNoteVerbND85/114/VOL.V193
dated26th April 1993concerningtheallegeddisputedareasofBakassi
peninsula, has the honour torecall to the attentionof the esteemed
Embassythe contentof thenistry'sNote No265l/DIPL/Dl/SW
of 5th May 1993.
Furthermorethe Ministryreceivedreportsthat Nigerianinhabitantsin
some Cameroonianvillagesof the MAYA district(Cameroon)have
tendencyto considerthese villagesas Nigenan. This situbeionmay
the consequenceof some misinformationor misapprehensionof the
realitiesof the area.
The Ministryof ExternalRelationsof the RepublicofCameroonavails
itself of this opportunity to renew to the Embassy of the Federal
Republicof Nigeriathe assurancesofighestconsideration." (NC-
M 222)
10.180 The CameroonianNoteof 5 May 1993referredto in this documentwasas follows: "The Ministry of External Relations of the Republic of Cameroon
presents its complimentsto the Embassyof the Republicof Nigeria in
Yaoundéand has the honour to bnng to its attention that by a lener
referenceno. PSG/GSA/S/175/SG/60of 28th January, 1993, the Cross
River State Government complained to the Cameroon Consul in
Calabar of the annexation of certain Nigerian villages around
Akpabuyo.The same letter equally complainedthat the Cameroonian
Authorities have been effecting raids againstNigerian population in
Abana.
After verification, it was confirmed that no Nigerian village was
annexed by the Cameroon Authorities. Cameroon will continue to
respect the Colonial Borderheritage. The reality in this issue is that
certain number of Cameroonian villages around the Bakassi gives a
numberof hospitalitiesto manyNigerianpopulationthat lives in peace
with their Cameroonianbrothers. It is certain that with this situation
people that found themselves inthe Nigerian soi1were encouragedto
create that by some dignataries in their community. What is the
essence of the Nigerian Comrnunityestablishing a Primary School at
Jabane, a Cameroonianvillage?
Recently,a certain Cameroonian Authoritywas authorised to remove
a sign-board at Jabane which readsas follows:
'Welcometo Abana Clan, Akpabuyo Local GovernmentArea, Cross
River State -Federal Republicof Nigeria'.
The Cameroonian Government is energetically protesting to the
Nigerian Government against theplantationof the said Sign-Board in
the Cameroonian Territory knowing that this act is contrary to the
good neighbourhood relationship and the CO-operationthat links
Cameroon and Nigeria togetherwhich was again strengthenedby the
visit to Abuja of PresidentPaulBiyaand Ibrahim Babangidain August
1991." (NC-M 223)
10.181 The documents availableindicate that in the period from 1973until the dateof the
Cameroonian Applicationto the Court the Governmentof Cameroon took various
steps to counteract the pre-existingNigerian presence,both officia1and otherwise,
in the Bakassiregion. These steps took theform, usually, of foraysby gendarmes
and episodic aftempts to coerce the population into acceptance of Cameroon
authority. Such attemptsfailed. Cameroonfailed to establish adminicontrol over the
10.182
region. The populationcontinuedta trade with large Nigeriancentres and touse
Nigeriancurrency.Symptomaticof theailurewasthe refusalof the population to
respondto theormativePotemkinstructureserecteby Cameroon.
l 10.183 In respect of the attemptto changeplace names in the region, severalyears later,
in1986, a Cameroonianinterna1report complainsthat:
"Asit concerns your District, many of the fishingsettlementshave
beengivennew namesbut scarcelyare the newnamesbeingusedby
the Aliensand evensome Cameroonians settltherein.
"It wouldalso appear thatsome new settlementshavebeen madeor
discovered thathavenot beengivennew namesyet e.g. Ine Akaribe,
referenceyour letterNG.40.05.IIID14 of1211310183.
This endorsementis therefore for your information and necessary
action.Please, rendertoisofficeanaccountofyouraction." (NC-M
224)
10.184 The evidenceexarninedin a temporalsequenceleadsto the followingconclusions.
First, unt1972 the Govemmentof Cameroonacquiesced inthe long-established
Nigerian administrationthe Bakassiregion. Secondly,f1972 onwards, there
were variousCameroon initiatives,and, in particular, the projrenamingthe
of villages, whichlearly demonstratethe previousabsence of a Cameroonian
administration.Onthe ground thereweresporadicCameroonianactivs hichdid
not result in the establishmentof effectiveor exclusiveCamerooncontrol in the
l
region.
10.185 At no stage did Cameroon exercise peaceful possession. From thetime of
Independencein 1960until1972the Govemmentof Cameroonfailedto challenge
thelegitimateNigerianpresencein the region. In the year1972,in spiteof
a growing intrusivenesson the part of Cameroon, this late developmentof an expansionist policy (almost certainly related to the prospects of petroleum
exploration)could not erase the effectsof the earlier attitude of acquiescence.
10.186 This assessment receivesgeneral confirmation from thepassagesof the Cameroon
Memorial which are concemed with "structures administratives et actes
d'administration"(pp. 490-96). No data are related to any date earlier than 1968,
and the other items, if they are given dates, are relatedto the years 1976and later.
E. Recognition and Admissions bv Cameroon in face of the Peaceful Exercise of
Sovereimtv bv Nigeria
(i) The Legal Relevanceof Recognition
10.187 Recognition has for long been accepted as an element in the proof of title to
territory. In the Righr of Passage case the Court applied the concept of tacit
recognitionin the followingpassage:
"Itis clear from a study of the material placed before the Court that
the situation undenvent a change with the advent of the British as
sovereignof that part of the country in place of the Marathas. The
British found the Portuguese in occupation of the villages and
exercisingfull and exclusiveadministrative authorityoverhem. They
accepted the situation as they found it and left the Portuguese in
occupationof, and in exerciseof exclusiveauthority over,the villages.
The Portuguese held themselvesout as sovereign over the villages.
The British did not, as successorsof the Marathas, themselvesclaim
sovereignty, nor did they accord express recognition of Portuguese
sovereignty,overthem. The exclusiveauthority ofthe Pomiguese over
the villages was recognizedby theBritish in fact andby implication
and was subsequentlytacitly recognizedby India. Asa consequence,
the villagescomprised in the Maratha grant acquired the character of
Portuguese enclaveswithin Indian territor""'
I.C.J.Rep1960p. 3910.188 Sir Gerald Fitzmaurice refers toadmissions and disclaimers as forms of State
conduct "inconsistent with, or tending to negative, the existence of
s~vereignty".~~ In the context of the Minquiers Sir Gerald indicated the
followingelements deriving from the conductof the parties:
"(i) Direct admissionsor acknmledgement(recognition)of the other
party's title.The Court cited and gavedue weight, as 'evidenceof the
French officia1 view at the time', to a Note from the French
Arnbassador in London to the Foreign Office, transmittinga copy of
a letter dated 14 Septembe1819 from the French Ministerof Marine
to the French Foreign Minister, 'in which the Minquiers group was
said to be 'possédép sar l'Angleterre',and in one of the charts
enclosed, the Minquiers groupwas indicatedas being British'.
(ii) Tacitadmission (recognition)of the other party's title,through
failure to refute a cclaimto it. The Court cited the diplomatic
interchangeof 1869, when a British Note to the French Government
complained of depredations and theb of fishig gear by French
fishermen at the Minquiers group, which was referred to as 'as this
dependency of the Channel Islands'. As the Court said, the French
Govemment in their reply 'refutedthe accusation against the French
fishermen,but made no reservationin respectof the statementthat the
Minquiers group was a dependency of the Channel Islands.""
(footnotesomitted).
10.189 In thecase concerningtheLund ,slandand Maritime FmntierDisputetheChamber
of the Court relied uponrecognition as a sourceof title in severalpassages in the
J~dgment."~Paragraph364" expressesthe underlying principle succinctly:
"The Chamber considers that this protest of Honduras, coming after
a long history of acts of sovereigntby El Salvador in Meanguera,
was made too late to affect the presumption of acquiescenceon the
part of Honduras.Theconductof Honduras vis-à-visearlier effecrivités
revealsan admission, recognition, acquiescenceor other form of tacit
224
BritishYearBookof Internatl aw,(19556) Vol.32. p. 58
226 ibid. pp.60-1
I.C.J.Rep. 1992p466 @ara.169). 469 @ara.176),485 @ara.205), 525 @ara.280) and577 (para.
364)
" ibid. consent to the situation. Furthemore, Honduras has laid before the
Chamber a bulky and impressive list ofmaterial relied on to show
Honduraneffectivités relatingto the whole of the area in litigation,but
fails in that matenal to advanceany proof of its presence on the island
of Meanguera. "
10.190 The editors of Oppenheirnhave stressed the significance of recognition as an
elernentof the consolidationof historic titlinthe followingpassage:
"In an important examinationof the critena applied by tribunals to
resolve temtorial disputes, Munkman identified inter alia the
following: recognition, acquiescence and preclusion; possessionand
administration; affiliations of inhabitants of disputed territory;
geographical considerations; economic considerations; h'istorical
considerations. Of these several factors, it has been said that:
'Recognitionis the primary wayin which the internationalcommunity
has soughtto reconcileillegalityor doubt withpoliticalrealityand the
need for certainty." (footnotesornit~ed)~~~
(ü) The Evidence of Recognition by Cameroon in face of the Exercise of
Sovereignty by Nigeria
10.191 In the first en years after Independence,Cameroonmade no protest in faceof the
exercise of State activity by Nigeria in the Bakassi region. Moreover, when
diplomatic correspondenceresulted from an incident involvinga survey team the
Government of Cameroon made no protest and recognised the exerciseof State
authority by Nigeria.
10.192 The correspondenceinvolvedconsistedof a CameroonianNote dated 22 November
1965 as follows:
'''
Oppenheim'Inzemntionnl ow.Vol.1ed. bySirRobertlenniand SirArthurWans9thed..p.710 "TheMistry ofForeignAffairsofthe Federal RepublicofCameroon
presents its complimento the Embassyof Nigeria andreferringto
the interviewhichtook place atthe Ministryon November5th 1965
betweenthe Director of the Europeanand AmericanAffairs on one
sideand the Fit Secretaryof the Embassy on theother side, hasthe
honour toinformthemof the following:
A petrol surveyteam of the geographical sectionof the 'Mobil Oil'
who were operating on a land concession given by the Cameroon
Authontiesinthe deltaof the CrossRiver (long.8"33E, lat. 4O30N)
were arrestedon 29thOctober1963 by a Nigerian policeofficerwho
considered thatthis land waspart of the Nigerianterritory and called
on thewholeteamto leavetheplaceina week'stime;he alsotook his
passport from Mr. Guy Cogswellan Americancitizenand a member
of theteam.
The Ministryhas been informedof this incident; it deeply regretsit
and reserves the position of the Cameroon Governmentas for the
elementsof the problem.
The Ministryrequeststhe Embassyto approachtheir Govenunent so
that Mr.Cogswell'spassport be given back to him and seizes this
opportunity to renew tothe Embassy the assurance of its highest
consideration. (NC-M 192)
I 10.193 The expressionof regret in this documentand the absence of any protest at the
arrest of the survey team involvea tacit recognitionof Nigerian sovereigntyin
I
1 respect of thlocusinquo. In the circumstancesthe lesemationof the positionof
1 the CameroonGovernmentis not conclusive.
l
10.194 The Nigerianreply,dated26 November1965,was, in materialpart, as follows:
"The Embassy of the Federal Republic of Nigeria presents its
complimentsto the Ministryof ForeignAffairsand has the honourto
refer to the Ministry's note No. 2716/CAB/DIFL/IB of 22nd
November,1965about the seinire of passport of Mr. Guy Cogswell
an American, when he trespassed Nigerian territory with a survey
teamon the 29thof October,1965.TheEmbassywishes to informthe
Ministry thatsince the interview.with the First Secretary of this
Embassyon the 5th of November,1965,the matter has beenreferred
to the competentNigerian authority with a requestto recover Mr. Cogswell'spassport. Anothernote will be addressedto the Minisuy
as soon as areply is received." (NC-M225)
10.195 In this exchangeit is clear that Cameroon isrelying on the exerciseof Nigerian
govemmentalauthorityand does not seek to challenge the legaof the Nigerian
presencein the region.
E Conclusion
10.196 The evidencethus amplysubstantiatesthe four basesof the Nigerianclaim to title
overthe BakassiPeninsula(para. 10.2, above),namely:
(1) Long occupation by Nigeria and by Nigerian nationalsconstimting an
histoncal consolidationofitie and conlïrmingthe original titleof the Kings
and Chiefsof Old Calabar which title vested in Nigeria at the the of
Independence in 1960.
(2) Effectiveadministrationby Nigeria, acting as sovereign, andan absenceof
protest.
(3) Manifestationsof sovereigntyby Nigeria together with thacquiescence by
Cameroon inNigeriansovereigntyoverthe BakassiPeninsula.
(4) Recognitionof Nigerian sovereigntyby Cameroon.
10.197 AsNigeriahas alreadyobserved(paragraph10.3above),thesefour basesof claim
apply both individuallynd jointly. In the viewof the NigerianGovemment,each
of the bases of titleuld be sufficienton its own.THE PRESENTBOUNDARYBETWEEN NIGERIAAM)
CAMEROON INTHEBAKASSIAREA A. Introduction
11.1 For the reasons set out in Chapte6-10, sovereigntyover the Bakassi Peninsula
vests in Nigeria. The boundary between Nigeria and Cameroon in that area
remains to be determined.
11.2 The immediatelyrelevanttreaty-the Treatyof11 March 1913 -is, for the reasons
given, ineffectiveto determinethe boundary inthe Bakassiarea.
11.3 No other valid and effectivetreaty is still in force whichdetermines the lineof the
territorial boundary in thatarea: in particular, no earlier Anglo-Germanagreement
remains in forcewhichlaysdowna territorial boundaryin theBakassiarea and the
legal effects of which, given the ineffectivenessof the "Bakassi provisions"of the
1913 Treaty,could still be considered to apply.
11.4 In the absence of any determining treaty, the boundary line has to represent the
geographicallimits which reflect theelementsconstitutingthe process of historical
consolidation of Nigeria's title to Bakassi, including historic areas of tribal
authority, the extent of effective administration, aothe~ manifestations of
sovereignty. Historical considerations,and the evolutionof the division of British
and German spheres of interestin the Bakassiarea, establishedthe dividingline as
king to the east of Bakassi, and inparticular at the Rio del Rey (see paragraphs
6.33-6.36,and 7.1 etseq.). Historically, thiswaterwayis in some waysa natural
1 boundary between the uibes of the Cameroon Mountain area (i.e. the Bakundu,
Bakole, Banbuko,Bakweriand Bimbia) andthe Efi keople of Old Calabar, (even
thoughpeoples subjectto the authorityof the Kingsand Chiefsof Old Calabar also
populatedareas to the east of the Rio del Rey,as far as the Ndian River and even
the River Rumby). For their part, the tribes of the CameroonMountainarea never
had pretensions to the exercise of authority as far West as the Rio del Rey, and
certainly never did so to the Westof that watenuay.11.5 The eastem boundary of Bakassi (and thus the boundary between Nigeria and
Cameroonin this area) involvesthreedistinctsectors:
(1) the stretch from the point on the thalwegof the Akpa Yafeidentifiedin
paragraph8.59 to the headof the Rio del Rey;
(2) the head of the Rio delReyto the mouthof that waterway;
the maritimeboundarybeyondthe mouthof the Rio del Rey.
(3)
(i) Theheadof theRio delRey
11.6 Crucial to (1) and (2) is the locationof the headof the Rio delRey. This was
establishedby Article1 of the Anglo-GermanAgreementof 14 April 1893. That
provision reads:
"Art.1. -That the pointnamedin Section2, ArticleIV,ofthe Anglo-
GermanAgreementof 1stJuly, 1890,as the heador upper endof the
Rio del Rey Creek shall be the point at the north-westend of the
Island lyingto the Westof Or~n,~~ where the two waterways,named
Urüfian and Ikankan, on the German AdmiraltyChart of 1889-90,
meet. "
The Chari referred to is in the Atlasat Map31 (seeabove,paragraph7.26). A
modem rnap of the samearea is in theAtlas at Map 36. The riversknownas the
Urüfianand ikankan on the earlier rnap are marked on the modem rnap andthis
latterrnapshowstheir relationshipto ObiobaCreek(Ubiobaontheearliermap)and
Okartapa(Owaatapaon the earlier rnap). The islandreferredto in Art. 1 is more
clearlyshownonMap32 oftheAllas, whichisderivedfromtheGermanAdmiralty
Chart of 1889-90. This islandis boundedby the waterwaysnamed Owaatapaand
229 Oron is nowknownas Odon. The head of the Rio del Rey is thus the
Ikankanand by the Rio del Rey itself.
point at thenorthwestend of that island, at the conRuenceof the Urüfian and
Ikankan(Point D Atlas, Map 36). the CO-ordinatesf which are 4" 45' 55" N, 8"
l
38' 19" E.
(ii) The boundaryfromthe thalweg ofthe Akpa Yafeto the headof the Rio del
Rey
11.7 The boundary fromthe relevantpointon thethalwegof the AkpaYafeto the head
of the Rio delRey followsa course whichrepresentsthe fimi&of the temtonal
authority of the Kigs and Chiefsof Old Calabar (above,paragraph8.59). The
startingpoint for this stretchof boundary hasbeen identified in that paraasaph
the pointon the thalwegof thatRiverwhich is oppositethe midpointofthe mouth
of ArchibongCreek. From that pointthe boundarymns to the headof the Rio del
Rey by wayof a line whichwouldretainas Nigerianthe townsor townships known
as Archibong, Akwa, Nwanyo,Mbenmong and Fumen, al1 of which are long
established Nigerian settlementa,nd leaveasarneroonianthe townsof Isangele,
Itabina,Arnoto andOdon.
11.8 In drawingthat line, the lirnitsof the territorial authorityof the Kings and Chiefs
of Old Calabarare convenientlyrepresentedbytwoprincipalnaturalfeaturesin the
area, namely the watenvaysknown as the Ikankan Riverand ArchibongCreek.
1 The boundarylie -
(1) leavesthe thalwegof the AkpaYafeat thepointon the thalwegclosesttothe
mouthof the ArchibongCreekand goesin a straightlinetothe midpointof
thatmouth (PointA on Map 36). the CO-ordinateo sf whichare 4" 49' 18"
N; 8" 37' 38"E; (2) followsthe median line of the Archibong Creek upstream for a distance of
approximatelyfive kilometres to its junction with a tributary flowing from
the South, thence by the median line of this tributary to its sourcB (Point
on Map 36), the CO-ordinateof which are approximately4" 47'33" N; 8"
38'46" E;
(3) strikes southwardby the most direct convenient routefor approximately1.8
lans. to a point on the left (or North) bank of the IkankanCreek (PointC on
Map 36), the CO-ordinateof which are 4" 46' 34" N; 8" 38 41E;
(4) followsthe same bank of the Ikankan Creek as that on which PointC is
located, mnning first in a Southeasterlydirection and then turning sharply to
the West to reach the point defined as the head of the Rio del Rey in
paragraph 11.6 above(PointD on Atlas Map 36). the CO-ordinatof which
are given in the same paragraph.
11.9 That boundary line is shown on Map 36 in the Atlas and on the satelliteimage in
the Atlas on Map 39. The CO-ordinatesgivenabovefor Points AB, C and D are
taken from Map 36 in the Atlas.
(iii)The boundary fromthe headof theRio del Reyto the mouthof the Rio del
Rey
11.10 The evolution of the Rio deley into the de facto lit to the authority of the
Calabar tribes on the one hand, and the Cameroon tribes on the other, left the
course of the boundary along thatwaterwayunclear. The historicalcircumstances
were consistent witha boundary runningalong itsleft (East)bank, but it wasat the
least a waterwaySharedbetween them, with a boundary mnningdown themiddle
of the waterwayor the middleof its navigablecharnel. 11.11 The Anglo-Germanagreementsof 1885, 1886, 1890and April 1893appearedto
alter that pre-existingsituationestablishingthe nght bank of the Riodel Reyas
the boundary. But it has tobe noted that those agreementswere notagreements
establishing boundariesbetween specificareas subject to the sovereigntyof one
party or the other,but rather agreementsestablishing a lineof separationbetween
their respectivespheres of action, influenceorinterest (above, paragraphs7.7-
7.11). This is clear from the terms of the firstthree agreements inquestion (see
above, paragraphs 7.7, 7.19, 7.24): and while the Agreementof April 1893
appeared to fix the right bank of the Rio del Rey as the boundary betweenthe
(British)Oil Rivers Protectorateand the (German)Colony of the Cameroons,so
suggestinga temtorial boundaryin a true sense, in the Agreementconclude4jist
seven rnonths later (in November 1893) the parties revertedto the conceptof
delimiting"thetemtories under their influence" (seeabove,paragraph7.28).
11.12 The partiesacted correctlyin limitingtheir actionsin thatway. For Great Britain
and Germanyto decide as between themselves the areas in which theywouldor
wouldnot exercise influence,tc., wasproperlya matteron which theycouldcome
toan agreement,sinceit entirely concernedtheir owninterestsand future actions;
the dispositionof swereigntymer temtory, in contrast, wasnot a matter for them
alone and was beyondthe pmper scope of their authority,since sovereigntyover
the temtory in question did notvest in them(or at least, did not do so in the case
of Great Britain).
1 11.13 Moreover, those Anglo-German agreements were principally concernedwith
establishing for the parties theirseparate spheres in which to pursue their
commercialand tradinginterests. Thoseinterestswereessentiallyland-based,and
the partieswere thereforeconcernedwiththe separationof their respectivespheres
of influenceon land, ratheranwith the intricaciesofdelimitationalongthecourse
of relevantwaterways.11.14 Sice for the reasons given(paragraph 8.25 - 8.52), the Anglo-GermanTreaty of
11 March 1913 was ineffectivetoestablish a boundary in the Bakassi area (in
particular, a boundary mnning down the Akpa Yafe River, to the West of the
BakassiPeninsula), the result is that no me temtorial boundary wasestablishedin
the Bakassi area by binding and effective international agreement: the relevant
provisions of the March 1913 Treaty were ineffective, and the four earlier
agreementswere only concerned withspheres of influenceand not with the limits
of territorial sovereignty, and werin any event not apt for the apportionment of
watenvaysbetween theparties.
-
11.15 In these circumstances,the role of the Rio del Reyas the boundary riverhas to be
re-examined. Historically, the limits of tribal authority made the Rio del Rey
initially at the least a shared watenvay, and possibly even a watenvay wholly
subject to the authority of the Kings and Chiefsof Old Calabar.
11.16 The Rio del Rey is, especially in its upper reaches,a complex waterway,dividing
into severalchannels. In the absenceof clear evidenceto the contrary (such as the
Rio del Rey Ports Order - see next paragraph), there is a presumption that where
a boundary has to followa river and the riverdivides into two or more channels,
and nothing is said about which channel is to be followed, the boundary will
normally follow the major ~hannel.~'~ Furthemore, where a boundary is to
followthe line of a river, thereis a presumption thatit is the mid-lineof that river
which constitutes the boundiry. In a context (such as that along the Coastof the
Gulf of Guinea) where water-bornetrading and fishing interests are important for
the localpopulation, the "mid-line"of a river is the middleof the navigablechannel
in the river for so far upstream as navigationis possible and thereafter it is the
geographical middleof the river. In relation to theRio del Rey,that meansthat the
boundary between Nigeria and Cameroon follows the middle of the navigable
channel in that waterwayas far inland as the headof that watenvay.
Argentine-aile FmntierCa(La PnlenaArbitrafio1966,ILR,~01.38p.10 11.17 Accountmust, however,also be taken of the Riodel ReyPortsDeclarationOrder
1960. As discussedin paragraph10.108above,the Orderdefinedthe limitsof Rio
del ReyPort, and includedin the area of the Port, the wholeof the main streamof
the Rio delReybelow4'45'N and extendedsouthwardsbeyondthe mouth of the
..-
Rio del &y.=' Y-
(iv) The boundary beyondthe mouth of the Rio del Rey
11.18 Themouthofthe Rio delRey is markedon itslefiandrightbanks by, respectively,
Erong Pointand WestPoint. The distanceacross the mouth of the Rio del Rey
from wst Point to Erong Point isnearly three nauticalmiles. From the pointat
which the boundary along the Rio del Rey reachesthe mouthof the Rio del Rey,
the boundary Iine runs out to sea in accordance with established rules of
- internationallaw,leavingon the-westernside of that linea belt of sea adjacentto
BakassiconstitutingNigeria'stemtorial sea.
11.19 Accordiily, the area of the BakassiPeninsulaover which Nigeria has sovereignty
is the totality of that Peninsula and its territorial sea, up to Nigeria's eastern
boundarieswithCameroonwhich run-
(1) on the mainland,along theline describedin paragraph11.8from the point
on the thalwegof the Akpa Yafeidentifiedin paragraph8.59, to the head of
the Riodel Rey(as definedin the Agreementof 14April 1893);
(2) on the Rio del Rey,from its headas so defined,toits mouth, and
(3) at sea, seawardfrom themouth of the Riodel Rey along a line, and for a
distance,drawnin accordancewith international law.
.
=' NC-M 194andMap37 intheAtlas PARTII
LAKE CM CHAITER 12
THE HISTORICABACKGROUNDA. Introduction
12.1 Thepurpose ofthisChapteris todescribein outlinthelongand diversehistory
of theareainwhich Lake Chadis situaid. Therulingdynasties,theircultureand
thebackground of theindividuasettlementfounded inthearea will breviewed
in ordertosetintocontextthemotsof thepeopleswhohavesettledinthe south-
westernportionof theLake andlakebed.
12.2 The storybeginslong beforethe arriva1of the EuropeanColonialpowersin the
19thCentury.
B. A ShortHistorvof the BornuEmpireu2
12.3 The peopleof NorthernNigeriahavealongand cornplexhistoryThey inhabitthe
countrycalledbythe Arabs,Biludai Sudaf"thecountr of theblackpeople")or,
asitwas sometimescaIled,the Wester nudan (asdistinctfromtheRepublicof
Sudan,fomerly known ast?aeAnglo-EgyptianSudan). To the Northlies the
SaharaDesert and,alongmostof the southen edge,thickraidorest. Inbetween
therelies a beitof savannahandsparsebushstretchingfromtheBenueRivetothe
Nile,witha cleadymarkeddryseasonof intensheatand a wetseasonofgrowth.
Rightup to the 19thcenturyttierewas no known routeto the seathugh the
minforesto theSouth,andthedesert totheNorth provid aedarrieto albutthe
hardiestprepareta undertaka gmellingthree-monthjourney. NorthemNigeria
waspartof what was,effectivela,hugeland-lockedisland.
12.4 Fivethousandyears agothe Saharawasa vastareaof fertileterritoryflowingwith
riversandstreams,coveredin treesandvegetation,withplentifulfishand game.
232ThisChapterdrawsupn nie EmiofNonhemNige~ by S.J.ogbenandA.H.M.Kirk-Gree(O.U.P.
1966forrhemaps,rablesandmoftheinformatnontaininit. There was a flourishinStoneAge civilisation,connectingEgyptandtheMaghrib
withtheSudanandWestAfrica. Within two thousand yearsthe landbegantodry
up, withdisastrouseffect- theriversdwindledandceasedto flow,the treesdied,
the vegetationblackened, thegame vanishe add people had no choice but to
escape. Some wentEast to the Nile,others tothe North andstillmore to the
South.Therewerealçogreatmigrations from the Nilefoilowingpersecutionby the
powerful stateof Adum in Ethiopia. The spreadof peoples, andthe migration
which took place,areshownatFig. 12.1. A Niloticinfluencecan be seen in the
regionof Lake Chad,where the maintribes weretheSo andtheKanuri.
Intheseventhandeighthcenturieswhitenomads,perhapsinitiallyfrom the Yemen,
came down to theTibestimountains and thenmoved furtherSouth tothe greener
landsof Chad. BerbersandTuareg alsocame down followingArab conquestsin
Egypt, CyrenaicaandTripolitania. The So (or Sau)themseIveswere a race of
legendarystature23s3upposedlyoriginatingin Fezzan,southof Tripoli. With the
BerbersandTuaregcamethe T'bupeople, whosewordfor "South"was Kanem -
theSouthor promisedIandof theirdreams. Kanem wasthe territorto theNorth
of LakeChad.
12.6 The first king of Kanemis said to have been Sef, a historic Yemenifigure
descended from theHimyaritekings, but thatwas probablyan inventedpedigree.
ThetruefounderwasprobablyDugu of Beni-Sef(Sefawa orSeuwa)who,in about
the year800, with his Maghumi(Sefawa)people,carvedthemselves a slice of So
territor,ndbecameknown astheKanembu people. TheDugufamilywas tomle
233Beautifpotsmadebyhem foundnearNgalaarthsizeofayouthandweresaithavebeencarriedothe
shouldeas water-j(butttiemayhavebeen usedasburiaurns)ExamplesareexhibitedtheLagos
Museum. formore than athousand yearsover KanemandBornu,unti1 1846.23 4heytook
the titiofMai (King).235
12.7 The 12thMai, Ume, orHume (1085-97)converted toIslamand became thefirst
Sulmn. Njimibecame the capitalofKanern.Theperiod fromf 085 to 1224 was
one of growingprosperityandpower. Humemadethe pilgrtmage toMecca, and
theMai whohadformerlymarried only withinthenoblecircle,enteredintomixed
marriages. The firstblackkingwas Selma,who ruledfrom 1393to 1210.
12.8 By thebeginning ofthe thirteenthcenhiryKanern was indisputablthe dominant
statin theSudan , ita soundpoliticalandadministrativesystemof governent
encompassing amixtureof MuslimIawandpre-Muslimtradition. In the reigof
the 17thMai, DunamaDabalemi (1221-591, Kanern had diplornaticcontactsin
Egypt andNofi Africa. There were fourprovincialgovernorsal1of whom were
relativesand rnembersof theroyal house. The most importantwas Yenima,
controllingthlandsof YeriagainstattackfromtheniaregandtheGaladima who
controlledlandstotheWest.
12.9 Duringthe 14thcentury,civilwar brokeout betweentheprinces,broughtaboutby
the gr& of theirchildren. Muchfeudingtookplacebetween the rivaltribesin
Kanern and eventually,inabout 1386, one branchof the Kanuri ruling family,
whose headwascalledDaud,wasexpellecifrom the capitalcitofNjimi: theyand
theirfollowersfinallyevacuatedKanemin about 1400. They movedSouth and
Westof LaiceChad tothe countryknown asBornu,whichhadken aprovince of
theKanem empire.Theoriginof the name is saito beBar-an or placeof theBar-
234 A lis themostnoiableKinofBornu appearsTabl1attheend of this Chapter.
235Dugumeans"thesonofadaughteroaMai"and thuheirinamauilinealsociety:Dugumaynot therefore
have beentfounder'namebutitindicathey werofTuaregaffinThe.present capcitofBorno
Suiein Nigeria is "Maiduguri". an, i.e. otheBarbarsor Berbers.Itis alsosaidtheword cornesfromBahrNah,
thesea of Noah. European cartographercsalledthkingdom Regnurn ~rgana.~'~
12.10 At firstthe Kanuribuilta series of temporarycapitalal1on the banksof the
Komadugu Yobe, whichflowsinto Lake ChadfromtheWest(theriverwhich was
subsequentlyto fom the northernboundaryof Nigeriawith theStateof Niger).
These earlysettlementsborenamessuch asWadi,BimiKimi andYamia.Inabout
1470theyfoünded thesettlementof BirniNgazargamoa,lso on thebanks ofthe
Komadugu Yobe.
12.11 BirniNgazargamo remainedthecapitalofBomu andtheKanuri peopleforthenext
340 years, and knem becamea provinc of Bornu insteadof Born being a
provinceof Kanem. Thesixteenthcenturybecamea golden ageforBornu - amap
(Fig 12.2) showthe extentoftheBomu-Kanemempirein 1591. Theirgreatmler
was Idris Alooma, who reigned from 1571 to 1603. He subduedal1 the
neighbourintribes, particulatheBulala,havingsecured fire-amsfromTripoli
inthe1590s. Hedied in battlin1603andwas buriednear Lake Alo(fromwhich
he becameknown as"Alooma"), closetothe modernMaiduguri.
12.12 Atitspeak, BirniNgazargamocoveredsixsquaremiIesandhadapopulationof
200,000,with four mosquesand six hundredand sixty roads, accordin togan
accountwrittenin 1658.
12.13 The remainderof the 17thand 18thcenturies were relativelyuneventful,but in
1750 Ali Ajimi(Ali ibnHajHamdun)becamethe63rdMai, and overthe next40
years sufferea seriesof crushingdefeatai the hands of the Mandaraand the
growingnumbers of FulaniandShunaArabswhohadsettledin theDikwaareato
theSouthof Bomu. In 1808, BimiNgazargamu was overcomeby theFulan i
236 SeeforexampltheCatalaMapofCharleV ofSpaimadeinabou1375.12.14 Withina yearhowever theMai Dunamahadedisted the helpof the30 yearold
SheikhHaj Muhammad alAmin who,withhisrenawned Kanembu spearmen,won
BirniNgazargamoback. Inreturn,he was given leadershipof four triband
becameknown as AIKanemi. Al Kanemiwasextremelypiaus and leamedand
muchlovedby thepeople. He enteredint engthydiplornaticorrespondenc eith
the Fulani. In1814 hedecidedto setuphis own capitalleavingtheMai in Bimi
Kebala(they neverrentrnedtoBirniNgazargamo). Hechosea sitearounda group
of baobab treescalledkuka,bythe shoreof LakeChad, andthe townof Kukawa
came into This is thetown from which the European treatymakers
subsequentlytook theirbearing(se Chapters14 and 15 below). Nowadays, not
oniy isthesiteof Kukawa noton theshoresof LakeChad,but al1thatrernainof
the originaitownis onebaobabtreejseephotogïaphmer).
f2.15 Al Kanemidied in1835, havingfàiledtore-establishBomu initsformerglory.
In1846 Ali Delatumi,th68th andlastMai, died,bringi toganend thethousand
year old Maghumidynastyof theMais of Bomu. Thefamilyof Al Kanemi, more
generallyrememberedas ShehuLaminu,cameforward as thetruemlersof Bomu,
and adoptedthe royaltitlofSheh~.~ It was inthe reignof ShehuLaminu's
son,ShehuUmar, thattheexplorerand writerHeinrichBarthsojoumedformany
rnonthsin"the EngIishhouse" at Kukawa. Duringthis the he signed a trade
treaton behalf ofthe BritishGovernment. It providefdee passagefor British
subjectswithintheKingdomof "Bornoo" and pemittd the appointmentof an
BritishAgentto reside in Kukawa.The administratioof Bomu wasat thethe
orgariizeunder thetraditionaKanurisystem. This consistedof the Emir(now
Shehu)whomledthroughthe Ajia(districtheadandLawan(sub-districhead)who
werebothaliens tothedistrict. Beneaththemwerethe Bulama theirlocalagent,
andMbam (village head)The Shehualso hadtwo specialrepresentativest,he
Mil, oneof whomresided atGujbaandtheother atGeidam. TheBornuCouncil
237
LocallegendinBornotellAlKanemihasaidthahewouldbuildhiscapithespowherehereached
238theiasuraof theKoran,whhe usedtreadashe ttavethatspotwastsiteothkukatrees.
The famiueeoftheAl KanemidynaisreproducnTable2attheendoftiiisChapter. of Statemet each day and kept a writtenrecord, the Nuke~a,~ which was
inauguratebythe 17th Mai,DunamaDabalemi,in the13thcentury.
12.16 By thetimeShehuUmardiedin1880, theauthorityandinfluenceofBomuhad
deciined considerably. In 1893it wasinvaded from the East by a horde of
Sudaneseand Arabs ledby "theAfricanNapoleon", Rabeh,who startedwith700
men amed withrifiesandcannonand endedhaving a regularlydrillamy of
some 20,000 which he basedin Dikwa,to the Southof Bornu. Dikwawas the
formerstrongholdofthe So,whohadbeen defeatedby Mai TdrisAloomain 1575.
12.17 Rabeh rnovedup toNgalaforhiscampaignagainstthe Shehu,whowas murdered
byhis slaves.RabehsackedKukawak , illingov3,000Kanuri andrazingthecity
to theground. For thenextsevenyearsRabeh subjectedBornu toan aironnile.
A mapof theFulaniEmpire and Bornu inthe 19thcenturyis atFig 12.3.
C. Arrivaiofthe ColonialPowers
12.18 In1900FrancesentahugemilitaryexpeditionagainstRabehunderColonelLamy.
30th Rabeh and Lamy diedatthe battleaKusseri,bythe confluencofthe Chari
and LogoneriverswhichflowintosouthernLakeChad. AfterRabehtsdeath,the
FrenchWied toreviv teeAl KanemidynastyandproclaimedSandaKura,son of
ShehuIbrahim,whodied in Kukawa in1845,the tenthShehuof Born. He was
deposedwithina year,and replacedbyhisbrotherGarbai. The Frenchdemanded
anindentliity80,00 0ollarfromhim fordeliveringhimfromhisenemies. This
wasan impossiblyhigh sum toraise, sit washardlysutprisinthathe accepted
anoffer from Colonel Motland, in chargeoftheBritishcolumns in Bornu,to
239Hansardws startinthe18tCenniry.Unfarain, uchotheNokenaasnowbeenloçt.Kuka tree rnarking thecentre of Kukawa becameShehuof BritishBornu. This causedtheFrench iowithdraw fromDikwa
toKusseri(nowFortFoureau24 0n theWest bankof theChaririver.
12.19 It wasatthispointthathe Gemans movedin andreplaced theFrenchat Dikwa,
whichwasregarded asthekey totheChad basin. TheGermans appointedSanda
Mandarama Shehuof Dikwa in 1902,and the FrenchinstalleTurbon Gida as
Shehuin 1904. Therewas a confusingperioinwhichShehuscameandwent,but
Shehu Mandaramareturned and continued as Shehu througb the Cameroon
campaignof 1914-16.
12.20 The BritishtookovertheDikwaemiratein 1916,andin 1922it wasrecognizedas
a separateDivisionofBornu Province,whichwasrnandated undeïthe bague of
Nations.
12.21 When the Shehuof Born, Sanda Kura, diedin 1937, Shehu Sanda Kiarmiof
Dikwa became Shehu of Bornu, and his younger brother,Abba Masta, was
appointedEmir of Dikwa. Bamabecame thecapitalcity.
12.22 Bornu, too,hadmoved itscapitalfromKukawa toa placeonthe lefbank of the
River Alonear thebig marketvillageof Maiduguri. Thecapitalwascalled Yema
(anArabicexclamatioof gratef ulasure)but theCivil Administratisetup its
headquamrsin Maiduguria , ndoutsideBornuthisbecamethe usualnamefor the
capital.
12.23 Dikwabecame aTrustterritorin1946. in1959 56 percent. ofthpeopleof the
NorthernTrustTerrito voyedagainstimmediateinclusionin# Northern Nigeria.
Asa resulta Commissionof Enquiry was setup,and sweepinglocal governent
changeswereintroducedin 1960. Inresponseto the separatistsympathiof the
240FORLamy wasfoundedin1900, twemiles zthe Norof KusseriIFFoureau.FortLamy&came
N'Djamena,tcapitalEhRepublicof Chad. Gwozahill-toppeoples, heir districtwas removedfrom the jurisdictionof the
Dikwaemirateandcreated a separateNativeAuthority.At the subsequentU.N.
plebisciteheldin1961 the people, satisfiedwithe Government'spromise that
they would become the13thprovince of NorthemNigeria, voted in favourof
rejoiningkir kithandkin. A yearlater,Dikwarequestedtobe transferredutof
thenew SardaunaProvince,and returnedto ithistoricaIhomein GreaterBornu.
Although Dikwa coniainsa largeShuwaArabpopulation,its Kanurielement and
strongties withBornumade itsrequestacceptableand thetransferwaseffecteat
theendof1962. A mapof NorthernNigeriashowing theprovincesas theywere
in 1966, and many of the places mentionedabove, is contained in the Atlas
fMap 40).
D. Conclusion
12.24 Thewholeof LakeChadandthe surrounding areahadthus, fora thousandyears
and more, been wrappedup in the history oan extraordinarilypowerfuland
vigorouskingdomwitha colourfil history.Thesuccessivecapitalsof thatkingdom
weresituatedatthe westernend of theLake - firstat Simi Ngazargamoon the
Kamadougu Yobe forover 340 years,andthen for nearly100years at Kukawa,
originallyon the shoresof theLake.
12.25 TheFrench,theGemansandtheBritishalltriedtodominatethisancientculture
attheturnof thecentury, andproduceda seof arbitrarlinesoverwhatwasthen
asubstantial odyof water.
12.26 Subsequently,s will beshowninChapter13,thatwaterhasrecededandthere has
followeda naturalexpansioneastwardof a people who have,farthousandyears,
ben used tolivingclosetotheLake. Asthisexpansionhastakenplacetheyhave
continuedto adrninistthe territothey haveoccupied, as anextensionoftheir
existing administration. Themodern administrationis carriedoutunder theNigerianLocal Government Areasof Ngalaand Monguno. Asthe nextChapter
will show,populationmovementsinto theareaof the formerLakewhichhas dried
out are quite simplya naturalextensionover land which was not previously
availableforsettiement,bypeoplecontinuina wayof lifewhosetraditionsstretch
back atleastasfaras many other civilisationstheworld today. TABLE 1
KINGS OFBOW'
TheMaghurni (Sefawafenasty: thq tookthe tile ofMai24or Sultan
Sei ibnDhi Ymn
Ume (Hume)
DunamaibnUmme
DunamaDabalemi
UmaribnIdris
Ali GhajiDunamami
IdrisKatagarmabe
Muhammad ibnIdris
AisaKiliNgirmaramma (Magira)
IdrisAlooma
Ali ibnHajHarndun
AhmedibnAli
DunamaLefiami
MuhammadNgilenima
Ibrahim
Ali Dalatumi
241Onlythemoresignifirulesarlisied.
242There isconsidediFerenbctweenthvariousauthoritiesexacdateoftheMaghurni ais. TABLE2
TheKuburi(Al Kanemi dynusp: theytookthetirle of Sheikhor Shehu
(iMUHAMMADAL AMIN AL KANEMI(SHEHULAMINU)
Died 1835
(2) UMAR
1835-80
(Dispossessed
in 1853-54by
AWumhman)
(4) BUKARKURA (5) IBRAHIM (6) HASHMI MASCAGUMSUMI SANUSI
1880-84 1884-85 1885-93
f 1O)UMARSANDA KURA (9) BUKARGARBAI
1922-37 1992-22
(Dikm 1900-01) (Dikwa190142)
(7) MUHAMMAD AL AMIN (8) SANDALIMANME IBRAHM SANDA
(KIAW) WUDUROMA (Dikwa MANDARAMA
1893 1893 1905-06) (UMAR}
(Dikwa
1902-05;
1406-17)
(11) UMAR SANDAURIMI MAIMMA UMAR ABBA MASTA
1937- (Dikm 1937-50) (ABBA YAREMA) (MUSTAFA)
(Dikm 1917-37) (Dikw 1954- ) (Dikm 1952-54)
BUKAR
{Dikm 1950-52)
Nom: (1) Upm 1846theShchusweremerelymer behindrhrhmnofthrhwsartd-pr-oMaghurdymiy ofUieMaofBomu, which
end& wih thedtatMaiAii Dalanimi.
(2) Akr the=catioofKbriandWudumm byRab91in 1893.thercwaintcrqnumuniil hisdesiniaionby theFrenchin 1900,
andUieirminsmcrit of tKaraemiynarinDiw -wita consequet tallabytheBririshofacwnrcrpanShehu,Buk
GarbaiinBomu.TE PHYSICALANDHUMAN GEOGRAPHYOFTHE
LAKECHADBASINA. Geolow. DrainageCharacteristic snd WaterLevelsupto 1940
13.1 The LakeChad Basinconsistsofanenormousdepressioncoveringan areaof some
2,382,63 square kilometres- equivalentto 8 per cent.of the totalarea of
continentalAfrica.An impressionof thegeographicalextentofthe LakeChad
Basin cm bederivedfrom the factthatit is ovtwo and a halftimestheentire
land areaofNigeriaand inexcessoffivetimesthatofCameroon. Estimateof the
number of peoplelivinwithinthe Basinareavaryfromten to twenty-fimillion.
By theyear 2020 there couid be forty-fmillion(see paragraphs13-35-13.38
below).
13.2 Inprehistorictimes, the Basintwicelaybeneathsea,as didvimally thewhole
ofLake Chaditself. Thefirstinundatitookplace intheCretaceousperiodflûû
millionyearsago),whenthe seaprobablyencroachedaiong what is thpresent
valleyof theBenueriverto the south-westThe sea returnein theTertia ery
(25millionyearsaga),oceanwatersprobabiyenteringvia the sameroutefromthe
Atlantic. ThLake itselnuw lies abou800 feetabovesealevel.
13.3 As illustratinMap41 in theAth, the LakeChadBasinisbounded to thNorth
bythe Tibestimountainwhich straddletheChadlLibyaboundary. To theEastlie
thehilis ofErdi and Ennedi, and the Oudai Plateau. To the South lie the
Nagoundere PlateauandtheUbangi-Shar Pilateau,whiletotheWestliethePlains
of Borno. BetweenLakeChaditself andthe TibestiMountains liesa regionof
dunes known as Kanem,a groupof depressionswhich lieata loweraltitudethan
theLake itself, connectedbagreatvalleycalledSom or Bahrel Ghazal. From
thisvallethe landrises towarthe Norththrough anareanamedBourkou iothe
TibestiMountains.
13.4 Althoughthereis abundantevidencein the Bourkouand KanemregionsNorthof
LakeCbad of former lake Ievelsandriversysternsflowingsouthwardfromthe
Tibestmassif,theseareasarenow aridorsemi-aridandcontributelittornothing to the conternporayater-leveloftheLake. InsteadtheLake is fedprincipallyas
a resulof extensiverun-offofwater,fromthe southernpariof the Basinand the
Ngaoundere and Ubangi-Shar ilateauxinparticular.The twomain riversentering
the Lake are the Logone and Chari,with the latterbeingthe dominantfeeder:
togethertheycontribut95 percent ofthewaterintake. TheLake'swatersarealso
traditionallysupplementedby the KomaduguYobeand KomaduguGana rivers,
flowingfrom the West,and theEbejiandYadseram from theSouth. However,the
Komadugu Ganadriedupapproximatel ynehundred yearsago,andtheKomadugu
Yobehas also been considerablyreduced. Theriverchanneldownwhich the
NigerialCameroon boundarynins Southof Latitude 12 ON,the Ebeji (sometimes
knownalso as the El Beid), has not carriedwateroaregularbasis for ove50
years.
13.5 Thisgradua1 drying-upofthe Lake'sfeederrivershasledto a drasticreductionin
the Lake'ssize. This will be explainein greaterdetaibe1ow. This reduction
means thatcarehas to be takenwhenreferringto "Lake Chad" toexplainwhatis
meant,whenthecircumstances demand it.Thus,theLakeChad Basin Commission
in itsStrategicAction Plan ("SAP"),24producedin May 1998 with assistance
from the UnitedNationsOrganization forEconornicand SocialAffairs,refersto
a "Nomal Chad" or a "Big"or "Mean" LakeChad to signify thLake full of
water. WhentheLakeshrinks, itis referredasa "Srnall had".
13.6 The"Noma1Chad"isthestartingpointforanyconsiderationofadivisionofthe
areaforpoliticalandlegalpurposes. Fig. 13-6belowshowstheLakein 1973, and
thatshapeis reproducedinmanyof theFiguresinthisChapterfollowingFig. 13.6.
Forthereasonsgivenbelow,apreciselocationoftheshorelineof a "Normal" Lake
Chadwouldbe no easy matter. Nevertheless,in generaltermsthe assurnptionof
a "NormalChad" has to be made in anyconsiderationof thepoliticaland legal
243 A copyofthSAPhasbeen ltidgedwiththeCoMuchofthe informaandtheFigureconiaininthis
Chaptearetakefromthe SAP. position. Icannot be assumed thattheLake willneverreturn to"Normal" in the
eventof a sustainedincreaseinrainfalinthe feederbasin.
13.7 Mostmapsbavetended toshow LakeChad athighwater. Thisis deceptive. The
area coveredby watervariesfrom seasonto seasonandyear to year.Owingto the
extremeflatnessof thearea,a riseof30 centimetresin thewaterlevelwill givean
increasin surfacarea ofseveralhundredsquare kilometres.Mostof thenorthern
partof the Lake containswakr to adepthof 60-10 0ms. afterthe rains,butby
July much of the westernpart of the Lake driesout, and has, indeed,ben
pemanentlydry for the majorpartof this centuryThe BritishtravellF.W.H.
Migeod, writingon the Lake Chad Region in the RoyalGeographicalSociety
Journalin1922" noid asfoIIowsfseeFig. 13.1forplace names):
"ln1871 thewater came toKukuwa. Thenin a yearwhichwas
probably1902from theinformationsuppliedtome,the water reached
Mongonu,havingpassedNgornu. It alsoreachedKnua. At both
Mongonu andKauathedatesuppliedtome workedout at19û2, since
they saidtwentyyears ago;butI understoodNgornu tosetitatthirty
.. In August1921 thewateragain came quitedoseto Ngornu,but
did not pass it.Kauaclaims that two previoustowns ofthat me
wereeatenup by thelake,the presenttown on adunebeingthe third
built".
13.8 Migeodconcluded:
"Intheaboverecord ...thereisno evidenceofa generalretreaof the
waterfromthe the of Denham'svisit in 1823 unti19û2".
13.9 Itisclearfrom Migeod'sobservations thataitheturn ofthecenturyand up to the
1920s the waters of theLake stretchedat ieasas far West as Ngornu. The
treaty-makersof those timeswerethusdealingwith a substantiabody of waterat
the westernendof the Lake.
244 ThefuitexofthisarticlebeenlodgeatCourt.13.10 By the 1940s,some remarkablo ebservationsoncerningthecharacter of the Lake
werebeingmadeconcerningthe areaaround the oldKomadugu charnel:
"An importantand disconcert featgreof ihis part ofthelake is
caused by theshailowness;wholeareascovered withwater atone time
of day maybe turnedby thewindintodry landa few hourslater,or
the reverse.Thoughthis mayoccur anywhere at anytime,theNorth-
East wind is the strongestand the most prevalent,and here is
frequentlya tendencyfor thewater to be blown ta the South-West
during thernoming and to fiowbackagainto covertheNorth-East in
theevening" .
Thedescriptioncontinued:
"The South-Eastern half hasa much largerproportionof itsarea
pemanently covered withwater ...In thedryseason a largepartof
theSouth-Wes dtrieout,togetherwitha largeareaintheextreme east
...i245
13.11 Already,therefore,onehasa pictureof theSouth-WesternN, igerian,portionof the
Lake dryingout bytheearly 1940's.
B. The CurrentSituation in the LakeChad Area
(i) Area, &sources and Population
13.12 LakeChadisthefourthlargestlakeinAfrica,afterLakesVictoria,Tanganyika and
Malawi. Discounting the Caspianand Aral Seas,itis thelargestendoreiclakein
the worldin kms of axea. Fig.13.2 showsthe entiregeographicaBl asinwhich,
as mentionedabove, exceeds2.3 millionsq.kms.
24sFromthe GeographiHandbookonFrenchEquaronnAfricproducedbthtNavalIntelligenceDivisionof
theBritishAdmirain1942,p.43 1 i 39th
ai- CI
No open wufer ;<#," !;
: Cr:;
1 ';,
1' III
Distant low islands
-13"
O kilometres
No open waier
MONGONU W.6-
OKata W.9 +
14'
Figure 13.1: Adapted sketch mapof the south-western shorcof Lake Chad which was produccd to illustretc
Migeod's paper. - Limitofold'conventionblasin"
CAMEROON i
Figure13.2: Lakc Chad geographical "conventional" basins (souSAP p.21).13.13 LakeChad and thewetlandswithin itsBasin fom a unique ecosystem forthe
region,and abiodiversityreserveof world-wideinterest.Twenty-onespecies of
fishhavebeen inventoriedin the Me,'& and 372 species of birdshave been
inventoriein theBasin, a thirdofthem king species thatmigrate tothe Poles.
LakeChadandits wildhabitats are a uniquesanctuaryfor wildlifefromtheentire
region,anda vitalbarrieagainstdesertification.
13.14 The geographicaBasin is dividedupas folIows,betweensevendifferentcountries:
Geographicalbreakdown ofLakeChadBasin (sourceFAO)
13.15 It willberecalled that, in1964, four couniries createdthe Lake ChadBasin
Commission (LCBC),tohandle theproblems ofdevelopmen tentredonLake Chad
in an area fomerly refemed to as the "conventionablasin". TheCommission,
however,did not includetheCentralAfrican Republic. itsarea of coinpetence
excluded thelarge desert expansesofAlgeria,northernNiger and Sudanand in
particulaexcluded theupstreampartof the activebasinsofthe Chari-Logoneand
246CADP- 1992,Neiiandera-.1994,I-a1993 Komadugu Yok. The old conventionalbasincoveredabout427,300 km2(see
Fig. 13.2).
13.16 Since1994,the CentraAfricanRepublichasbeen amemberof the LCBC andthe
conventionalbasinhasbeen enlargedto includethe upperbasinsof theChari-
Logoneandbrnadugu Y& systems. It maynow be consideredthathe LCBC's
mandatecovers theentire activebasin (also refeto asthe new conventional
basin)with anareaof966,955 km2 (seeFig. 13.2),dividupas followsbetween
thefivecountries:
Distributioof active basin new conventionalbasin)accordintoLCBC (areas)and
Harrissonandfilawole @opulation)
Country New areaof Populationin Densityin 1991
conventional 1991(in (Fr km2)
basin (km2) thousands)
Cameroon 56,800 2,100 37
CAR 197,800 700 3.5
Niger 162,375 240 1.5
Nigeria 188,000 13,856 74
Chad 361,980 5,048 14
Total 22.7
966,955 21,944
As can be seen from this tablthe Nigeriansector is by far the most heavily
populate.
13.17 ThisnewdefinitionoftheLakeChadbasintakesintoaccountalmost al1the surface
waterthatsuppliestheLake,the Yuéré (thefiatlandSouthof theLake between
the Logoneand Chari)and theaquiferin the Lakarea. (ii) TheDesertificationoftheLake
13.18 The gradua1dryingup of theLake foreshadoweidn Chapter12has,overthe past
25 years,acceleratedramatically.
13.19 1tis showngraphicail byphotographstakenfromspacebyNASAastronauts, who
pass over Lake Chad soon after their launchfrom Cape Canaverai. The
photograph(sFig.13.3)show thedifferencbetween theLake in1966 and26 years
later,in 1992.'~~ That huge differenceis borneout by data obtainedby the
LCBC analysingremote sensii nformationobtainedfromsatellitesThe dataare
setout in theLCBC documententitledMonitoringthe f@drological Behaviouof
ihe Lake Chud (1972-95."*
13.20 Two sourcesof informatiohavebeenused. Oneis remotelysenseddatafrom the
AdvancedVeryHigh Resolution Radiometer (AVHRR)on boardmeteorological
satellitesbelongtngNOAA(the USA'S NationalOceanographi cnd Atmospheric
Administration)t:heother isthe work of researcheselsewhereusing Remotely
Se& data. The two tables(Table3 and 4) appearinginthereportaremerged
below, with the NOAA information(whichis basedon average figuresforthe
relevantyeargivenin italics.
1
Year Areaof the Source
IAke (km2)
1966 22,772 GeminÎmission.InMohieret al.
(1989)
1973 15,400 Landsat(Mss). In RFSTEC,JAPAN
(1991)
1980 1,408.99
1981 1,522.99
247The photogiaphappinOrbipublishedtheNationGeographiSociety1996
248Acopyhasbeen lodgattheCourt.retnnant of a grealake that
oixe Filiedthe400,CCO-
srpare-tiiiie baskat contains
!nos[of rhecountry oFChad.
Figure 13.313.21 Thereare slight variatiinsthe data isome years, bua very clearpattern
emerges ofadrarnatireductioninLake six takinplacebetween1966and1980.
On anyview theLake shrankbetweenthoseyears bya factorof {en. The NOAA
figuresshow thafrom 1980to 1995it remained atless thanone knth the siit
wasin 1966.
In its conclusion,the repstatesthafora returnof the Lakto what is known
as a"Normal Chad",which has aheightabovesea leveof280.5metres (925feet),
therewouldhave tobe exceptionaincreaseof idow totheLakebythe Chariand
other feederrivers as welas direcrainfalon the Lake itself. Toachievea
"NormalChad" theAows ofthe Chariandother riverwouldhaveto increase to
over 43h3 per year. In 1975-76theannualflowof theChariwas 36.9kn2. By
1984-85 itwas 6.7km3. The flow had increasedto 22.9km3 by 1995-96 -
approximatelyhalfof whatwas required- and in addition,twto threeyearsof
heavyrainwouldbe neede o supplementtheriverflow.
13.23 The graphreproduced atFig. 13.4 (fromthe SAP)shows Chari-bgone water
resourceflowingintoLakeChadbetween1970and 1990. These flowscomprise
85per cent.of totMle influws.The graphtellitsown story.
jiii)HydroIogyof the Rivers
13.24 TheSAP(page26) hasthistoSayabout thehydrologyof the riveinthe area:
"The hydrologir egime of the rivers of intertropicalAfrica is
affecteddirectlby thatofthe rainfall,but aisu, akacertain lag
time, bythecumulativeeffectofrepeatedrainfallshortages.
Znfiow from the rivers of dry Africa, from Senegmlthe Chari,
**amountto atotalof275 km3lyear. The fa1inwater resourcefor
the decad eetween1981 and 1990 was 85km3lyear. In the recentperiodithas been confimed that, inspiteof certain
periodsof relativeabundance,flow inthe rivers in thLake Chad
regionhascontinuedto decline. Thispersistentdownwartrendmust
be stressedasitrevealsa lastingdeclinin thehydrologicalsystem,
inspiteofa fairlysignificarewvery intems of rainfaconditions.
The naturallow-waterflow regimeof the Chariat N'Djamena, Iike
thatof the other Sudano-Saheliarivers,issevereiyaffectedby the
presentdrought. Theabsolutelow-waterlevelreachedin theIasttwo
decadesare systematicalyhe lowestoftheseries.Thechang n the
drying-upphaseis themajorphenornenon responsiblefothedecline
in lowwateravailabilityt,o suchanextentthatpeoplehave referred
toa 'low-watersicknessand 'hyper-dryo fngh'rivers.
Furthemore, the shortageof rainfallover the present period is
obviouslyresponsibleforthedeclineinthepower offloods. ihasan
initial,immediateflecin theform of smallerandlorshorterflaods,
dependingon the rainyseason.There isthena memoryeffect, inthe
formof cumulativeshortagesfrompreviousyears and smallerinfIows
to theaquifers. It is therefoto be expectedthattherewill be a
certainpersistenceof low Roodmaxima even if thereiareturnio a
wetsequence "
Thus, aftersuch a prolongedperiodof drought,the returnto a "NormalChad"
seems a distantprospect,althougitis not impossible.
(iv) RainfallPattern
As torainfallpattertheSAP(p. 25) States:
"Sincethe firstseriousshrp phaseithe years1972-1973,therehave
beenconsistentshortageofrainfalin thedryareasoftropicalAfrica,
though îhey have varied inseverityand extent from one year to
another.A notableworseningin thedrought occurred in 1983-1984,
and shomges haveremainedthe generalmle up to thepresentday.
These are exacerbatedin terms otheflow inthe majorrivers. The
geographicalextentofthe problemand-itsduration,ofwhichthere is
no equivale intthehydrocIimatolo geicard(Sircouion, 1987,Figure 13.4: Chari -Logone water resources flowing intoLakeChad (85% of iuIallake
inflows) (source SAPp.29). 19891, have ledcertain authorsto speak ofa change in climate
(Carbonne1andHubert, 1985).
Theshortageof rainfalinthe LakeChad basinhasbeen spectacular
andpersistent.
The graph[reproduced inFig. 13.5) shows theannualrainfalla?
N'Djamenaformore than35 years. Thefallingtendencycabe seen
throughouttheperiod.
This severedeclineirainfallovethe entirlakebasinhas ofcourse
seriouslyaffectetheflowregime oftherivers."(emphasisadded)
The combinedeffect of thisconsistentdropin rainfallandconseqfa1tin river
Row volumeshasresultedin astateofwhatis known as "SrnailChad",whr:rethe
averagealtitudeof tsurfaceof theMe hasdroppedfmm 280.5metres to279
metres. A fa11of 1.5 metresmay not sound much,less than the heightofthe
averageman,but in an areaas flat asMe Chad the resultingchangein the
configuratioof theLake is quiteremarkable.The two sketchmaps basd on
Landsatsatellitedatareproduceon thesame scalat Figs. 13.6and 13.7show
howdrasticthechangehas ken.
(v) "Small" Lake Chad
13.26 The SAP sutesthattheenormousreductioninarea (90 percent.oftheunconfined
water)shownin November1977 is "stillthesituationtod"y(May1998).
13.27 The variatioinLakewakrlevelsandthechangein graphictems from"Nrrmal"
to "SrnallLake Chadis shown inFigs.13.8and13.9.13.28 From al1of the aboveitis clearthatthephysicalcharacteristicsof LakeChadat
the hirnof the centurywerevery differenfromwhat one findsnow. Members of
Nigeria's legal team visited the Lake in Jul1997 and in May 1998. The
descriptionbelow andthe photographs contained inthe PhotographieAnnexare
basedon kir observations.
13.29 Inorder toreachthe Lake today,itis necessartodrivemanykilometresoverthe
Lake bedin dry and dustyconditions(Plate34). Not untiKattiKime (SeeAtlas
Map42) does thewaterappear.Eventhen, channelshave to be cutthroughthick
reeds(Plate35) foranotherkilometreor twobeforeone reaches reasonablyopen
water.There, thepresenceof weed on thesurfaceclearlyshowsthe channelsused
by boa&(Plate 36). Largeclumpsof reedsarestill prevalent(Plate37) and the
journeyoveropenwater toDarak Islandtakes nomore than20 minutes.
13.30 Darakitself isa low-lyirgandgreenisland(Plate38) butlargevariations in its
surroundingwater leveltakeplace with the seasons. Areas many hundreds of
metresfromthe waterin Julycan be coveredby water in November(Plate 39).
The water seen in the distance would certainly corne uto where people are
standingin theforeground.
13.31 Such huge changesin the physicalcharacteristicsthe region arebound tohave
a greateffecton populatiornovement. A societywhich hastraditionalfeditçelf
throughfishingwill move tostaynearthe water. TheLakehasabundant fishand
both fresh and dried fish are consumed in large quantities(Pla40sand 41).
Fishing is carrieout from boats,rnainlywith nets (Plate42). The economic
importanceof fishingis shownbelow.
13.32 Inadditionto fishing,largeherdofcattlearegrazedon the bedof theLake fPlate
43). There are no enclosuresand herdsmenmovetheircattle from pastureto
pasturewithout regardtointernationaloundaries. -
-2.5 ' I I I I 1 I I
t950 f955 1960 1965 1970 f975 1980 -985
Figure 13.5: Annual rainfall at N'Djamena (souira SAPp.25). i
i
1:
O kilomelras50
u
Figure 13.6:The Lake in 1973 (reproducedfrom Olivry etal.) (sourceSAPp.24)
,--, \, t-1,.Tataverom
,-' , "1
N'Guigm i,'' 5f.i
I'I' Little " ::'-:
\I vegetation '.,-, i
', Kindjeria 1%
'. <- O kilomeires50
III
0 Unconfinewdater
Marsfilanwithdensevegelation
0 Archipelag o ithouvegetalion
Archipelag o itvegetation
Figure 13.7:The Lake since 1977 (reproduced from OIivry eral.. 1996)(source SAP p.24). Figure 13.8:Change from "normal" to"small" Lake Chad (source SAPp.23)
-2.5', , , , ,, , , , , , , , , , , , , , , , , , , ,
1955 1960 1965 1970 1975
Figure 13 9'Variation in lake watcr IcveI (source SAP p.23).13.33 Largequantitiesofundergroundwaterexist.This,togetherwitfithefertilernture
of thedried-outLakebed, makesthe landhighlyproductive. Crops are grown
mainlynearvillagesand forlocal consumption(Plate44).
13.34 Extensiveinterviewscanied out in thevillagfsee below,Chapter17)shiw the
patternofoccupation whichhas takenplaceover thepast20 years. Settlerhave
cornemainly from Nigeria,butalsofrom as faras Mali,BurkinaFaso and Chad.
13.35 Al1of thesefactorshavecontributeto thehuman pressuresidentifiedbth{ SAP.
These aredealtwithin thenext section.
(vi) Buman Pressuresin the LakeChad Basin
13.36 Inadditiontothephysicalconstraints,whichrelaternaidy to problemsof surface
waterresourcesinthe area, therearecertainconstrainof humanorigincerived
eitherdirectlyfromtheincreaseinpopulatiorindirectlfrom thereactionofthe
populatiotothe new clhaticconditions.The SAP examines thefollowing.ssues:
f1) demographic pressure,
f2) productionactivities,
f3) developmentactivities.
(vii)DemographicPressure
13.37 Between ten and twenty-fivemillion Africans depend for their livelihood on
activitiescarrioutin theLakeanditsbasin.13.38 TkKindlerReport(1990)nokdthattherewasarelativelysmallmralpopulation
inthebasinas a whole. As canbe seen from the map atFig. 13.10, theheaviest
concentrationof populationcloseto theLakeis inBorn State inNigeria.
13.39 However,itshouldbenoted thatthismapshows thesituationin 1979, whenthe
effectsof droughtwerejust beginningtobe felt. It shouldfurtherbe notedthat
thereare certaitowns, in particulararoundthe edge of the Lake,wherepeople
tendtogatherduringperiods of difficuclimat cincdition(seeFig. 13.11).
23.40 Asfar aspopulationisconcernai, theKindlerReportpredictsa relativelhighrate
of increase. Thefiguresputforwardfor1963 and1991,andforecastsforthe years
2010 and 2020, indicate the upwardtrend of the population in the present
conventionalbasinas shownby the graph at Fig. 13.12. By the year 2020 the
numberof peoplelivingintheBasinarea could be as highas 45million.249
jviii) ProductiveActivities
13.41 Productiveactivitieinthe Lake areaincludeirrigatedagriculture,flood-=cession
agriculturefishing,stock-farminand industriallrninigctivities.
(a) IrriaatedAgriculmre
13.42 Irrigatedagriculturethroughouthebasinispractisedinbothlargedevelopedareas
and in small ones spreadalong the rivers and aroundthe Lake. The Nigerian
irrigateareasal1borderthe Lake. Wihoutwaterin theLake,theirrigationfails.
249 SAPpage10Inhabitants per km2
cl0
IO -20
.,- 20-35
, -,
Figure 13-10: Skctch map showing rural population density in 1979 (source SAP p.32).Figurc 13-11: Sketch map showing main urban centres in 1979 (source SAPp.33)Figure 13.12: Populafion growfh in thenew çonventronal basin (soiirce SAPp.31). fb) FishinP.
23.43 Fishingis widespreadthroughou theLakeand alongthe riversand inthe ponds
that one sees in the vicinity othe Lake. It may be practisedas the main,
secondaryoroccasionalactivityof the localpopulace,andis consideredbycertain
authors tobe by farthemost important sourceof householdincome, as the Table
below shows:
Sourcesof householdincome fsource:King)
Activity
Fishmg 26.3
FIood-recessioncrops 15.5
Stock-rearing 8.6
Sm11 irrigatedareas 6.3
Largeirrigatedareas 5.5
13.44 Extensivestock-rearinis alsogeneralisedthroughouthebasin. It ischaract:rised
by continuous growth and is of the seasonal migration(transhumance)type.
Livestocknumbers aregrowingwiththepopulation.
13.45 Itisalso importanttostresthe cross-bordercharacterof the seasonalrouttaken
by the herds. These are describeciby Kindlerand reproduced on the rr,apat
Fig. 13.3, which shows the mutes to theSouth and to theLakeduring thedry
season,and to the Northduringthewetseason. (ix)lndustrial and miningactivities
13.46 Withthe exceptionofN'Djamena,where a varietyof industrieshavedeveloped,
there has so fabeen little deveiopmentoftheprimarysector in the basinarea.
Operationsthatdo exist includsmallgold anddiamond minesand oil extraction
projects.
13.47 Studieshave notpointedout anyparticularconstraintsconnectedwiththissector,
thoughfew preciseobservations havesu Eàrbeen madeconcerning the ecological
consequencesof these activities. Any harmfuldischarge,reintroductiof waste
wakr andunexpectedleakagewill, of course,inevitablyfindits way tothe centre
of thebasin or tothe aquifer. Preventionis requiredinthisarea of activitin
orderto avoidany seriousor irreversibside-effects.
(x) Conclusion
13.48 The SAPconcludesthe section on HumanPressures asfollows:
"lnconclusion,the intensitandextentof productionactivitiesarnot
in themselvesdangers, or even specific constraintsduring 'normal
Iake'periods,and ithasken seen that theplayonly a marginalrole
in the offtakeosurface waterresources. In conirast,human threats
areparticularlserioustothefragileecosysternsandwhen humanand
animal populationsgrowregularly.
Indeed,man adaptsslowly to changesin his environment. While
wildlife flees and Bora regresses if therare sudden and lasting
negativechangesin the environment,manadaptsrnuchmoreslowly.
He seeks firstofa11to extendhis activitieor evento intensifyand
diversifythern, even thoughnatureis becomingmorefragileandthe
ecosystemsof whichhe is a partare morevulnerable.
For this reason,human pressuredue topopulationgrowthand the
intensificatioof humanactivities will be added to the physicaiFigurc 13.13. Transhumantroutes taken by caittein the Convcntional Basin in a wet year (Kiodler) [source SAi'p.37) constraintdescribedabove,and will haveincreasinglyseriosocial
andeconomicconsequences: namelymigrationof theinhabitantsand
theirlivestock,leadintothe abandoment of traditionalpracticesin
one region and more severecornpetitionwith farmersin another,
uncontrolledfellingof trees,etc. Any sustainabledevelopmentmust
takeaccountoftheseconstraintandri~ks."'~
13.49 From the conclusiostatedaboveit isclearthatthe Lake Chad Basin repires
comprehensiveandco-ordimkdaction if its naturresourcesareto be prezerved
for the benefitthe peoplelivinginthearea (seeparagraph13.37 above). The
SAP setsouta coherentprogrammeforsustaininganddevelopi thgBasin.
13.50 If the plan fails, the futureof the people livin the Basinwill be :iighly
uncertain.
13.51 Nigeriais,asithas alwaysbeen,ready,willingandabletocontributefromilsvast
resourcestothe succesof the plan.
13.52 At thepresenttirne, Nigeria shouldersovehalf othe economic burden~f the
LCBC. The figureareas follows:
CurrentBudgetContributions(1998)
Country % $000
Nigeria 52% 509
Cameroon 26% 255
Chad 11 % 108
Niger 7% 68
CAR 4% 39
---------
100% $979
-
''O SAPpage37,3813.54 Fishing,raisingcropsandstock-rearingsustainlifeintheMeChadBasin. Itis
inevitable,witthe physicalchangeswhichhavetakenplacein theBasin inthe last
40 years, that the communitiesdependenton these activities will move their
settlementsin ordeto survive In.subsequentChaptersin thisPartof the Corrnter-
Mernorial the currentsettlement patternis examinedin the light of this iecent
hisiory. CHAPTER 14
DARAK ANDTHENIGERIANLAKE CHAD VILLAGES14.1 ThesettlementsofDarakandtheoEhervillagesinLakeChadlistedbelow in
paragraph14.5areNigerian.TheearlyhistorydescribedinChapter12showsthat
therehas been an affinibetweenwhat is now Nigeriaand thisareagoing back
overcenturies. Nigerianfishermenhavken usingthewatersofthe Lakefortheir
livelihoosincethefirssettlersarrivedinthisregioand theycontinuetodo so.
As thelevel of LakeChaddropped, so islandssuchas Darak,were created,and
thesehavealwaysbeenused byNigerianfishermenas restingplacesduringfishing
trips. AsaresuItofthedecreasinleveloftheLake andof thefertil oitheLake
bed, manyfamers havesettledinthe area.
14.2 PermanentsettlementsbegantobeestablishedattheeK ndaaKtime, 950s.
originallan island,was establishedby Nigerianas a settlemenforfishingas
early as 1959. The establishmentof similar fishing settiementscontinued
throughoutthe 1960s.
14.3 During the droughtof 1973 to1975,the level otheLakerecededconsiderably.
Nigerianfishermenfollowedthe recedingLakeshore, establishingvillasuchas
Darak,NairaandRaminDorima. These settlements,likeal1the villagesin this
area, were settledpeacefully and without any objection from Cameroon.
Settlementhathadpreviouslybeen establisheasfishingsettlemeninthe 1960s,
suchas GarinWanzam,Chika'a and Domn Limanremained,but the inhabitants
turnedto hrming,asthe soiexposed by therecedingLakewasveryfertile.
14.4 ThepassageofnomadicfishemenandfamerswasnotrestrictedtoNigerians.
Nomadsfromacross the sub-sahararegion,fromMali, Niger,Chad andfurther
afieldhave,over a periodof manyyears,corneinto this area insearchof the
watersofLake Chad, whichare abundantin fishor thefertilesoi1yieldup by
therecedingLake,in orderto settand creata living. Villagsuchas Mukdala
andNaga'awereestablishedexciusiv olthepurposesof agriculture.14.5 VillagesoverwhichNigeriaclaimssovereigntyareafollows:
Koloram 12'40.196'North 13'57.518' East
SabonTumbu 12'44.975' North 13'58.237' East
Jribrillaram 12'42.975'North 13'58.440' East
DoronMallam 12'50.277'North 14O06.033'East
Kim Wulgo 12'47.633'North 14O07.139' East
Sagir 12O45.600'North 14O08.943'East
K~uM~ 12O44.719'North 14"10.492'East
Kafuram 12O47.649'North 14"11.297'East
Murdas 1Z046.696'North 14'12.688'East
Mukdala 12'46.358'North 14O14.873 'ast
GoreaGutun 1Z044.338'North 14'15.142'East
1Z047.667'North 14'15.433'East
Fagge
Chika'a 12O46.992'North 14O16.423'East
Naga'a 12"46.120'North 14'17.396'East
GarinWanzam 12'47.505'North 14O17.848'East
Njia Buniba 1Z052.101'North 14'15.585'East
Ramin Dorima 1Z049.271'North 14O17.365'East
Dororoya 12'49.063'North 14O17.697'East
Doron Liman 12O47.532'North 14O18.611'East
GoreaChangi 1Z047.672'North 14"19.998'East *
KaitiKime 12'49.615'Nor- 14O20.117'East
Sokotoram 12'50.780' Nor& 14O21.913'East
Darak 12'52.648' North 14"18.530'East
DarakGana 12O52.496' No& 14"19.996'East
Naira 12O54.684'North 14'18.813'East
hko Naira 1Z054.915'North 14"18.242'East
Bashakka 1Z056.370'North 14"18.412'East
AisaKura 12'57.268'North 14O18.050'East
Kasuram Mareya 12'53.622'North 14"16.875'East
Karakaya 12'58.903'North 14"14.952'East
Lugon Labi 13"01-490'North 14"14.903' hst
Kanumbu ir 13Oûû.653 ' orth 14"16.420'East
Nimeri 13"01.240'North 14O18.845'East
14.6 Most of these settlementshabeen establishedby1979. DarakGana, asrnall
fishingvillage,dependeentirelyonDarak, was foundedin 1983 andMurdas, a
small farmingcommunity,was foundedin 1986. The locationof these Nigerian
villagesishown on Map42 in the Ath.
14.7 This mapshows thepresentlocationof Nigeriansettlementsin the Lake and the
approximateline of the originalLakshore at theturn of the century. These
settlementwere foundedand arestilinhabiteprimarilyby Nigerians.Theyare
administeredby the Nigerian Governent at Federal, Stateand Local level.
Evidenceof this administratis set out in deiniChapter17.14.8 Themajorityofthesettlementsin~isareawerevisitedbymembersofNigeria's
legateam inMay1998. Interviews were conductedwiththeChiefs(bulamas)of
the villageand GPSZ2readingsweretakenfor the purposeof locatingthe exact
positionsof thevillagesThe note sakenduringthe interviewswiththe bulamas
of the settlemenare appended toChapter17.
14.9 It iclearfromthe contentof these interviewsthatthe villagersgiveallegianceto
Nigeria. They havebeen administered and assistedin their IiveIihooby the
FederalGovernment of Nigeria,by Born StateGovernment and by Ngala Local
Government Area. They have been payingtheir communityand cattle taxesto
NgalaLocalGovernent Areain Nigeriasince the foundingof the villages. This
deeply-feltattachmenis nowthreatenedbyCameroon,which,as is apparentfrom
the interviews,hashadno interesin these peopleortheirwelfare.
14.10 The recordsof theinterviewsalsoshowthat iis notonly theNigerianinhabitants
who give allegianceto Nigeria. Al1the residentsfrom Mali, Niger, Chad and
Cameroon,who live in these settlements,havepaidandstill pay theircommunity
andcattletaxes toNgala Local Government Authoritywithoutprotest.
14.11 Cameroonasserts in itsMernorialtha tigeriacarriedout aconcertedinvasion in
1987 which was CO-ordinate bytheGovernmena tndassistedbythe military. The
evidenceallegedto supporttheassertionissparseandbased on secondarymaterial.
Itis alsoincorrect.The historyofthearea andthe interviewsconductedwiththe
bulamas of thevillages reveal that Nigerians foundethese settlementsover an
uriintemptedperiodof 40 years,andinhabited theareapeacefully. Theyhavenot
requiredrnilibry assistanctopursuetheirlivelihoads,except fordefenceagainst
banditsfrom othercountriesin theregion.
252 Geographical PositioningSystem ("GPS")hand-fieldreceivers displayinfofromorbitingved
satellwhichenablprecisgeographil O-ordinas beobtainedanywheontheearrhsurface.14.12 Furthemore,despitethe Cameroonian Governmen tavingapparenilybeenaware
of the alleged "invasioof thethesevillagesin 1987, it took sevenyearsbefore
lodginganyprotest. The firsandonlyprotestnotewasdate2 d1 Apri l994,aper
the lodgingof the initialApplicatiand relatedtoone settlementonly,Darak.
Suchsilence over a period of40 yearsamounts to acquiescenceas set out in
Chapter 17 inalensu.
14.13 The continuinglevel of administrationby Nigeria over these settlements,the
correspondinglack ofinvolvementby Cameroon,the wishes of the populationof
the villageand the history of the traditionalemirateal1contribute to and
emphasisetheimportance thatNigeriaattachetothesesettlements.
14.14 There are thereforethree obviousreasons why Nigeria wishes to retain its
sovereigo nverthis area.
First: If Cameroon's clah tothesesettlernentwereultimatelyto succeed,
then tensofthousandsofNigerianswouldsuddenlyfindtheirpersons,
lands,propertyand livelihoodtransferrto theexclusivecontrolof
a different State with different systemsand traditions, which
previouslyhadno regardforthem. Thiswoulddeeplyaffectthe way
of lifeof thesepeople who have alwaysbeen Nigerian, havebeen
administeredasan integralpartof Nigerand regardthernselvenow
asNigerian.
Secondiy: The territoryin question,andthe people andcommunitieswholive
there, would be tom from the administrationof Borno State
Governmentand,inparticular,Ngala Local Govenunent Area, of
whichthey haveformany yearsbeen apart,and bywhom they have
beenadministere.dThirdly: The people and the territorywould likewise be tom from their
traditional culturalcommunitieas well astheirtraditionaltie&O
and mle byHisRoyal Highness,the Shehu of Bomo. The roleof the
traditionlulersin thiarea isfurthedescribedin Chapter 17.The
traditionalfrarneworof nativeadministratiand societycontinues
toplay an important,vitalandbeneficiarole amongstcommunities
suchas these.LAKl3CHAD -BOUNDARY INSTRUMENTSPRIOR
Tû INDEPENDENCE15.1 The purpose of this Chapter is to present an account of the international
agreements,concludedduringthecolonialperiod, which relatedtothepmposals
forterritorilivisionof thLake Chadregion.Thisaccount,whichincludesother
relevanteventsoccurringpriorto theIndependeo nceigeriaandCameroonin
1960, provide the background necessaryto understandthe positionconcerning
boundariesin theLake Chadregion atthetime of Independence.
A. Before the Fi& WorldWar
ji) AgreementbetweenGreat Britain and Gerrnmy respecting Boundariesin
Africa, signedat Berlin,15November 2893 (NC-M 28)
15.2 ArticleIIof thisAgreementprovidedthatthenorthempart of theAnglo-German
15 boundaryshouldbe continuedfrorn the pointon theBenueRiverdefind in
Article1.nie delimitationwasdetailedas follows:
"A Iineshailbe drawnfrom the pointon theleft bankof the River
Benue fixedin thatArkicle,which,crossingtherivershallgo direct
to the pointwherethe 13thdegreeof longitudeeast of Greenwichis
intersectedbythe lûth degreeofnorth latitude.From thatpointit
shallgo directo apointon thesouthernshoreof LakeChad,situated
35 minuteseastof themeridianof thecentreofthetownof Kuka, this
beingthedistancebetween themeridianofKuka andthe 14thmeridian
eastof Greenwich,measured onthemap by Kiepert]publishedinthe
Geman Kolonialatla sf1892."
15.3 This passagecontainstheearliesrelevantreferencto the meridianoflongitude
situate35 minutesEast ofKukafalso knownas Kukawa),the end-pointof the
describedboundarybeing identifiedas the intersectofnthatmeridianwith the
southernshoreof LakeChad. Althoughthe longitudeof thatmeridianis givenin
theArticleas 14" E, thefactthatiis situationrelattoeKukalKukawia s given
suchprominence suggestsdoubtin themindsof thepartiesregardingthe accuracy of that longitudeco-ordinate. Indeed the CO-ordinatewas not used in later
agreements.
15.4 Regardi hgeend-pointonthe shoreof LakeChad,Article IIwenton tostipulate:
"ln theeventof futuresurveysshowing thata pointso fixedassigns
&Othe Britishspherea less proportioofthe southemshore of Lake
Chad than is shownon the aforesaidmap, a new terminal point
making good such deficiency,andas faras possible in accordance
with thatatpresentindicated,shall be fixed asoonas possible by
mutualagreement ".
(ii) Conventionbetween the French Republic and Germany, for theDelimitation
of theColoniesof French Congoandof Cameroon and ofFrench and German
Spheres of Influencein the Regionof Lake Chad, signedat Berlin, 15March
1894 WC-M 29)
15.5 Indefiningthesectionofthe boundary betweenCameroon andtheFrench Congo
adjacento theLake, AriicleI ofttiis Conventionstatthattheboundary would
run inits last section dong "lcours du Chari jusqu'a Luac Tchad",making
specificreferento paragraph5 ofthe Annexto the Convention. Thatparagraph
of theAnnexdeclaredthat:
"Dansle cas oule Chari,depuisGoulfeijusqu'àsonembouchure dans
le Tchad, se diviseraiten plusieursbras, la frontièresuivraila
principalebranchenavigablejusqu'àl'entrédansle Tchad,aveccette
réserveque,pourquece tracé soitdéfinitif,ladifférenee longitude
entre le pointainsatteinparlafrontièresurla rivesuddu Tchad et
Kouka, capitaleduBornou, pris comme pointfixe, seraun degré.
Dans le cas oh des observationsultérieures,dûment vérifiées,
démontreraient que l'écarten longitude entre Kouka et la dite
embouchurediffère de 5 minutesde degréen plus ouen moins, de
celuiqui viend'êtriendiqué l y aurailieuparune ententeaimable,
de modifierle tracde cette partiede la frontide manièreque les deux pays conservent,au pointde vue de l'accèsau Tchad etdes
territoiresquleur sont reconnusdans cette région,des avantages
équivalentàsceuxqui leursontassurépsarle tracéportésur lacarte
amexée au présentProtocole"
(iiiConventionBeîweenGreat Britainand France forthe Delimitationof their
respective Possessionsto the West of the Niger, and of their Respective
hssessions andSpheresof Influencetothe East of that River,signeat hris,
14 June 1898(NC-M30)
15.6 Thisagreernent,to which two indicativernapswere annexed,was the firstto
describe a boundary within thewaters of the Lake. Article TVdescribedthe
boundaryEastof theRiverNiger. The last partof theboundarydelimitationran
as follows:
"...thendue north untilit regainsthe 14thparallelof noah latitude;
then eastwardsalongthis paralleas faras its intersectiwith the
meridian passing35' east of thecentreof he townof Kuka, and
thencethismeridiansouthward untilitintersectiowiththe southern
shoreof LakeChad." (Map43 in theAtlas)
15.7 TheArticlecontinued:
"TheGovernent of Her BritannicMajestyrecognises, as Ming
withinthe Frenchsphere,thenortherne,asternand southernshoresof
LakeChad, whichare comprisedbetween the pointof intersectiof
the 14thdegreeof northlatitude,withthe westernshoreof thelake
andthe point of incidenceon the shore of thelake ofthe frontier
detemined by the Franco-GennanConventionof the 15th March,
1894." (iv}Anglo-German Agreementsigned 12 December 1902 WC-M33)
15.8 This was an instrumentsignedby BritishandGermanofficialsfor the purposeof
empoweringBoundaryCommissioners,inferdia, to "survey,trigonometrically
and topographicalla, stripof laasfaras LakeChad, in thepresumeddirection
of the boundary,as it is laid down in [the Anglo-Geman Agreementof 15
November18933 ", anticipati"theeventualshiftingoftheboundary..whichmay
be necessitatedbythedeterminatioofthelongitudeofKuka"(Article III).Article
IV providedfor the determinationof the positionof the meridian35' East of
Kukawa thus:
"Having reachedthesouthernshoreofLake Chad,theCornmissioners
will carryon the txiangulatioto Kuka,in order CO ascertainthe
positionof thepointon the shorewhichis 35' eastof the centreof
thattown, or in case of difficultythey wiII ascertainthat pointby
means of signals. Ttis left to the discretionof the Commissioners
whetherto determineabsolutelythe longitudeof Kukaduringone
lunationinordertocheck approximatel heresultsofthetriangulation
from Yolato LakeChad. Theywill a1soascertainthepointwherethe
14thmeridianeastof Greenwich cutstheshoreof LakeChad."
15.9 ArticleV wenton to specifythatforthepurposesof thisexercise
"Thecentreof the town ofKukashall be a point situatedmidway
between the wallssurroundingthe two separatepartsintwhich the
townwasformeriydivided."
"Thehigh-watermark shallbeconsideredas the shoreofLakeChad."
15.11 AlthoughNigeria has been unable to findevidenc teatthe document of 12
December 1902wasexpresslyapproved by theBritishandGermanGovernments,
BritishandGermanCommissionersdid in factsurveythe stripof landreferredto from Febmary 1903untilkbniary 1904, apparentlwith themandateof thi s902
Agreement.
(v) Anglo-GermanProtoc01signed at Ullgo, LakeChad, 24 February 1904
WC-M34)
15.12 ThisProtocolwassignedby theBritishandGerman Commissioners L,ouisJackson
and H. Glauning. The Protocolevidences,interdia, thatthroughanexerciseof
triangulationworked outfrom Yola, îhe Commissionerswere able toagree the
positionof Kukawa(withreference to the positioof Yola)within11 secondsof
both latitudeandlongitude.Based on a rneanof the Commissionersc'alculations
forthe centreof Kukawa, "a meridian35minuteseast of mkawa] was deduced
forthemap". It seemsthatalthough itwaspossibletospecifythe positioof this
meridianwith referencto Yola,a disputeamongst theCommissioners regarding
the astronomicalpositioofYola preciudedthe calculationof the longitudco-
ordinatof Kukawa,andhencethe longitudeof the meridian35' tothe East.
15.13 As well as the differencof opinionregarditn he position of Yola,there was
disagreemenbtetweentheCommissioners concerningthepositionoftheintersection
oftheboundary with theshoreof Lake Chad. However, despitethese differences,
ithadbeen possibletomarkthe positionof themeridian:
"The tri-lation was carriedout toa pointvery nearthemeridian
35 minutes eastof Kukawa at theedge of the wateras itatpresent
stands. The meridianwasalsomarked and aligned,on ground south
of the highestwatermark,by two hardwood posts."15.14 TheProtocol alsorecordsthat:
"Thebushon the line of the Meridianposts was cleared,and the
nativeswerewarnedio lookafterthem."
(vi)Anglo-French Conventionsigned at London, 8 April 1904WC-M 35)
15.15 ArticleVlII of thisConvention,whichwasconcludedby theUnitedKingdomand
France,setoutthe boundarywhich was intendetobe substitutefortheboundary
fixedbythe Conventionof 14 June 1898. Thefinalpartof this delimitatihad
the boundary runningalong the thalweg ofthe River KomaduguWaubé(also
referredtoas theKomadougou Ouobé andtodayknown asthe Kornadugu Yobe)
as farasLakeChad. Thedelimitationcontinued:
"Thenc it willfollowthe degree of latitudepassingthroughthe
thalwegof themouthof the saidriverup to itintersectionwith the
meridianrunning35'eastofthe centrof thetown ofKouka,andwill
then foIlowthis meridiansouthwarduntil it intersectssouthern
shoreof LakeChad. "(Map 44 in theAtlas)
15.16 TheConventionanticipatefurthermodificationbeingmadetothis boundaryline,
andmade specificprovisiregardi negboundaryin LakeChad:
"Itis furtheagreed that,on Lake Chad,the frontierline shall, if
necessar ye,modifiedso as toassureto France a communication
throughopenwater at al1 seasons between her possessions on the
north-westandthose on thesouth-easof theLake,and a portionof
thesurfaceof theopenwatersoftheLake atleastproportionatothat
assignedtoherby the mapforming Annex 2 ofthe Conventionof the
14th June,1898." (vii)Agreement betweenGermanyand Great Britain respecthg the Boundary
betwn BritishandGermanTerritor iomsYolatoLnkeChad(Nigeriaand
Cameroons) ,ignedat bndon, 19 March1906(NC-M38)
ThisAgreementbetweenBritish andGerman officialswaconfmned by an
Exchangeof Notes on 16 July 1906. These officials had been appointeto
"consideand fixadefinitiveboundar"betweentheirrespectivadjacentterritories
northwardsfrom the vicini ofyYola, in accordam with the Conventionof
15 November1893 and thesurveysof theGeman andBritishCommissioners in
190314. TheAgreement purported"todeterminetheboundary" asdescribedinthe
Agreement "and as delineatedon the accompanyingmaps" preparedby the
Commissioners.
15.18 Article7describedthe northernmos ectionof theboundaryf,rom a pointNorth
of DÎkoalocatedon the "linofGeman claim as definedon theattachedmaps",
as follows:
"Theboundary thenfollowstheline of the Geman ciahina straight
line untiitinîersectsthe meridi35' eastof Kukawa, which was
markedby theBoundaryCommissionby two posts abovehigh-water
mark. Thence itshallfollowthatmeridiannorthwar d.(Map 45 in
theAtlas)
15.19 The Treaty Series print of the Agreement annexed reproductions of the
"accompanying maps". A copy of the map llustratithe northernmostsection
appearedat Amex lI(a) - this map was signedby the officerwho signed the
agreement,and was in fact a copy of Sheet 1 of Map I.DW.O. No. 1902,
apparentlybearingthe signaturesofBritishand Germansurveyors(Whitlockand
Marquardsen)w , ho signedthe mapon 8April 1904at Yola. Itappearsfromthe
map thattheboundaryninningNorthstruck themeridian 35'Eastof Kukawa ata
pointapproximatelyfive kilometresNorthof thwaterlevel otheLake, indicated
onthe mapas the "presenwaterlevel"asat 22 Febmary 1904.15.20 AlthoughfromthatpointtheboundaryheadedNorth,theAgreementdidnotspecify
how farNorth theboundary was torun. However, evenif theboundary ranNorth
fora veryshort distanceintthe Lake,it would tothatextenthave coincidedwith
the last sectionof the boundaryfixedby the Anglo-FrencConventionof 8April
1904, which ran along the meridian 35'East of Kukawasouthwardsuntil its
intersectiowiththeshoreof LakeChad. Itwouldappear, thereforethatthe two
instrumentcsontradictedeach0th.
15.21 The rnap alsoprovides interesthg informationconcerning the position of the
meridian 35'East of Kukawa. Apartfromapparentlyconfirming thepositioning
of poles alongthe meridian,the rnapappearsto indicate,byreferenceto itgrid,
thatthemeridian was thoughtto nin nearto the 14"9' E lineof longitude.
15.22 Article8 anticipatethattheboundary definedwould be "marked out as soonas
possible,exceptalong thecoursesof rivers,inapermanent marner,withposts or
otherwise." A stipulatiwas madeconcerningthe discretionof thosechargedwith
thedemarcation exercise:
"The localrepresentativesfthetwoPowerscharged withthemarking
outof the boundary,as hereinafteprovided,sfiallhavediscretionas
follows. In caseswhere the boundaryis notmarkedby a river,and
where special local circumstancesmakeitdesirablenotto follow the
straighlinethey areauthorizedto varyitbymutualagreementto the
extentof notmore than 1 kilom., measuredat rightangletothe line.
Suchvariationsare to beclearly shownon plansand reportedto the
Govements at home. Theywill notbe consideredbindinguntilthey
have beenratifiedby theGovernments of GreatBritainandGermany .
15.23 Article 12provided:
"Akr the ratificationof thisAgreement,thelocal Representativeof
the two Governmentsshall be forthwithempowered to markout the
boundary,and to carryout the necessarytrader ofterritory. This
shall be done by the Residents of the two Powers, or kir
representatives,actinginconcert and in the presence of the local Chiefswhoseterritorieareaffected. Wheretheboundary somarked
out does not departfrom the line prescriinthis Agreement,the
transfer of territorshali be definitive; but where the Iocal
representative,ctingonthediscretiongiventohem inparagraph8 s
and 9 above,propose tovarythe boundaryt,he line maybe marked
out andacteduponprovisionally,ubjectto ratificatasaforesaid."
(viiiConvention between the United Kingdom and France respecting the
DelimitationoftheFrantierbetween the Britisand French Possessionstothe
Eastof the Niger,signedatLondon,29 May 1906 WC-M 39)
15.24 Thistreatywassignedbygovernmenr tepresentativSirEdward Grey andM. Paul
Combon,confirming an Anglo-FrenchProtocolsignedin Londonon 9 April 1906
by BritishandFrenchCommissioners.Ratificationwere exchangedon 29August
1906.
15.25 TheProtocolconsistedofa proposedmodificatioofthedelimitatioofthe Anglo-
Frenchboundarycontained in ArticleVI11of the 8 April 1904 Convention. The
finalparagraphof theboundarydescriptiocontainedin ArticleI of this Protocol
read:
"Fromthe mouthof the Komadugu-Yobie n Lake Chad the frontier
willfollowtowardsthe eastthe parallelof latitude,passingthrough
the thalwegothe mouthof thesaidriveras faasa pointsituatedat
adistanceof35 kilom.from thecentreof thvillageof Bosso. From
thipsoinitwillrunin astraighlinetothepointofintersectionothe
13thparallelof northlatitudewthemeridianrunning35' easof the
centreof the town of Kukawa, themeridianmentioned in the
Conventionsof the 14tJune,1898, andthe 8thApril, 1904."fMap
46 inthe Atlas)
15.26 The ahgrnent of the boundaryline withinthe Lake in this Conventionwas
significantlydifferentfromthagreedin the 1904Convention.Whereas inthe
2904Convention,theboundaryleftthe mouthof theKomadugu Yobe andheaded due East asfaras themeridian35' Eastof Kukawa,theboundary under theMay
1906Convention changeddirectionata point35h. fromBosso. Fromthatpoint,
theboundaryranin a south-easterlyirectioto the intersectionof latitud"1N
and the meridian35' EastofKukawa.
15.27 An annexedmap referredto in ArticlIIIindicatedthe frontierdescribedin the
Protocol,includi thgfinalsectioninLakeChad. However, rathecuriously,the
mapZçs3 howsthe boundarycontinuingbeyondthe lastpointdescribedin ArticleI
- fromthatpoint, itis shownrumingdue Southtowardsandbeyondthe southeni
shoreof LakeChad.
15.28 ArticleIIof theProtocolread:
"itis agreedthattheIslandsof LakeChad situatewithintheline laid
downin the last paragrapof Article1will fom an integralpartof
Britishterritory,anthatthosesituatedoutsidethatline wilfonn an
integralpartofthe Frenchpossessions.
The two HighContractingPartiesagreeto guaranteefree navigation
on the Lake toBritishsubjectsandBritish-protectepersons,and to
French citizensandFrench-protecte dersons,as faras regardstheir
personsandgoods."
15.29 Demarcationof theboundarywasenvisagedby ArticleIV, whichstated:
"The two Gwernments undertake to appoint within a year
Commissionerswho willbecharged withdelimitingandmarking out
on thespotthe lines odemarcation betweenthe Britishand French
possessions,inconformitywithandinaccordancewiththespiritofthe
stipulationsof thepresentProto."l
253 Shee2 otheMapannexedtotheConvention15.30 Inthis regardanAnnex to theProtocolstipulatthat:
"Althoughthe delineationof the linesof demarcationshown on the
map annexed to thepresent Protocolis supposedtobe generally
accurate,itis agreedthathe Commissionershereafterappointedto
delimitthefrontieon thegroundshalbe guidedby thedescriptionof
thefrontieassetforthintheProtocol.
It shall, however,be permissiblhemr tomodify thesaid Iinesof
demarcatioforthepurposeof fixingthemwithgreateraccuracy,and
to make any indispensablealterationsof detail.Alterationsor
correctionsoamoreimportantnatureaffectingthe frontierlinemust
besubmitted,by thecommon consentof the Commissioners,to the
approvalf theirrespectiveGovernments.
jix) Conventionto specifythe Boundarybetween French Congo and Cameroon,
signed in Berlin18 April 1908 (NC-M 40)
15.31 This Franco-Geman ConventionconfirmsdaProtocolsigne dtBerli on9 April
1908whichdelimitedthe boundarybetweenCameroon andwhat was thenFrench
Congo. Articlel(ko)f thaProtocoldelimiteitsmostnortherlysectoas follows:
"Del'embouchure de labrancheprincipale navigaeeCharidansle
Tchad,tellequ'ellestdéterminédeans lacarteannexée au présent
protocole,la frontiatetein'tintersec dumoénridie12"8' est de
Paris(14"28' esGreenwic av)eleparallèl13O 5'de latitudenord,
suitensuitversl'ouesceparallèleusqu'àlafrontièfranco-anglaise
(Conventionfranco-anglaieu29 mai, 1906)".(Map47 intheAtlas)
15.32 This articlthus provide for a Franco-German boundarywithin the Lake,
originatiin theeasternpartof the southernshoreof thLake,andkrminating
ata pointon the1906 Anglo-Frenchboundary. Becausethe lastsectionofthis
Franco-Germa ine continuedWestalong theparallel13"05' N, itwouIdhave
passed05' Northof theinterseciiof chemeridian35'Eastof Kukawa withthe
paralleloflatitudof 13" N, which was the end point ofthe Anglo-French boundarydescribed in the1906Convention. The linewouldhavecontinuedWest
andintersectedthe 1906Anglo-French boundary at apointNorthandWest ofthat
endpoint.
15.33 Articlel(k)oftheProtocolwentontodealwiththestatusoftheislandsinthatpart
of Lake Chad delirniteby thetreat:
"Ilestentenduque lesîles du Tchadsituéeà l'ouestet au sudde la
frontièreci-dessus indiquéfontpartiedu territoireallemand:celles
qui sontà l'estetaunord font partidespossessionsfrançaises."
15.34 The Annex to the Protocolprovided,inter alia, that the demarcationof the
boundary shouidstarwithinfour monthsfrom theratificatiofthetreaty,andset
outinstructionfordemarcation. The Commissionera sppointedwere tobe given
authoritto make sligl-itmmodcationstothe boundary,which modificationswere
consideredvalidpendinggovernmentapprova l
(x) Exchangeof Notesbetween Germany andGreatBritainconfirrningProtocols
defining Boundaries between British and German Territor n eAfrica -
22 FebruarylSMarch 1909 (NC-M 41)
15.35 By anExchangeof Notesof these dates,GreatBritainandGermanyconfinnedtwo
Protocolsmade betweentheir Commissioners. The exchange was effected by
SirE. Goschen and Herr von Schoew nho hadalso signedtheProtocols.
15.36 One of the Protocols, signedat Kofa on 12 Febmary 19û7, relate d the
demarcationof the 19 March1906 boundaryfrom Gorege North to Lake Chad.
Article1 of the Protocolread: "The Anglo-Gennanfrontier from Gorege ro Lake Chad has been
demarcatedaccordingtothe Agreemenotfthe 19thMarch, 1906. The
positionoftheboundary postsis showon theaccompanying sketch."
(xi)Protoc01dated 19 February 1910 betweenthe United Kingdom and Rance
respectingthe Delimitationof theFrontierbetween the Britishand French
PossessionsEastof the Niger(appmved byExchangeof Notes, 17Mayfl July
1911) WC-M 43)
15.37 ThisProtocolcontaineda proposeddescriptionofthe Anglo-Frenchboundaryin
accordancewiththeprovisionof theAnglo-Frenchconventionof 29May 1906 and
purportedtomake the 1906Anglo-Frenchdelimitatiomore precise.Therelevant
provisionof Article1oftheProtocolread:
"The mouth of the Komadugu Yobe has been markedby an iron
klegraphpole, cementedat thebase, situatein13" 42' 29" north
latitude,8,250 metreseastof tcentrof thevillageof Bosso.
From this pointthe froncierfollowstheparallelof 13"29"north
latitude,foadistan cf26,70 0 etreto thepointon thatparallel
35 kilom. fromthecentreofBosso.
An ironklegraphpole, setincernent,is erecton an islandsituated
approximately1,150 metrebearing325"fromthis point.
Fromthispoint thefrontierfollowa straightline beari144" 34',
distance96,062 metrestothepointwhere the 13thparallelof north
latitudeintersethe meridian35'eastof thecentreofKukawa.
The centreof Kukawais in12O 55'35.5"northlatitude.
The centreof Bosso is in 141' 59"norîhIatitude0" 15'11"West
of Kukawa . (Map48 in theAtlas)
15.38 ItisapparentthattheCommissionersignoredtheFranco-GemanConventionof
1908. If thatConventiohadinfactestablishea Franco-Gennan boundaryinthe
LakewhichranWestalongtheparallel13" 05' asfarasthe 1906 Anglo-French boundary,France could no longer havemaintained thatits boundarywithBritish
territorran asfar tothesouth-eastas the13thparaIlel.
15.39 Althoughthe 1910 Rotocol providedthepreciselatitudeofthecentresof Kukawa
andBosso, itdid not stipulatetheirlongitudesrelatito Greenwich. It isthus
clear thattheCommissioners ,ike theirpredecess oromal1 three local Powers,
continued tobeunableto agreetheexactpositionofKukawa relativeto Greenwich.
B. Sincethe Erst World War
(i} The PicotlStracheyLines,February 1916 and theCrewelCambonExchange of
Notes, March 1916
15.40 AfterthefalloftheGemanregimein~eCameroonstoBritishandFrenchforces
in19 14, ibecamenecessary to considerthe divisioof theCameroon setween
provisio Bnaiishand Frenchadministrations.On 23 February1916, theFrench
Embassyrepresentative , .Picot,met representativofthe BritishForeignOffice
(Oliphant)andColonialOffice(Strachey).OliphantandStracheydrewupreports
of the meeting,in which they reportedthat Piwt had produced a rnapof the
Cameroonson which he indicated a line markingtheboundaryof a strip which
France wasprepared for Britaitohave Southof Y01a.'~~
15.41 Uponthe Britishparticipantsobservin tgattheUne drawnby Francedid not nin
Northof Yola,and thatthe Emirateof Bomu wouldremainsplit up and"not be
incorporatedentirelyin Nigeria",Picot indicatedthhe was ready to submit the
matterto his Govemmen t Stracheydrewa brokenbluelineon themapindicating
his recollectionof the approximatextentof whathadbeen theGeman partof
254Seepp. 13-1oftheMemorandurnon theCorrespondenandNegotiatioresulting in the Provisional
Administrative DivisiCameruonsonIsApd 1916 writtbyAJ.Hardinanddate11January1917,
atNC-M 226 Born~.~~~ The map so markedwas then signed by Picot and Strachey. The
temporary characterof any arrangementwhich might later be concluded was
acknow ledged.
15.42 Although a copyof this maphas notbeen Iocated,itis notthoughtthatStrachey's
line was drawnfurtherNorth thanthe shoreofLakeChad.
15.43 In a Note tothe BritishForeignSecretaryGrey, dakd 3 March1916, the French
Ambassador, M. Cambon,expressedthe French acceptanceof the boundaries
drawn onthe mapsignedbyStracheyandPicotsubject tothereservationi~er alia
thatthearrangementwas of atemporary nature. The FrenchGovernent wenton
toconcede ht fNC-M228):
".. letérritoiree Bornoucomprisdansles limites du Cameroun
rentresous l'administrationritanniqueetsoitannexé à la Nigeria.
Il admet en outreque les lignestracéessurla carte établipar les
deleguésanglais et françaispourrontecre légèremenm t odifiéede
manière à éviterle partagede villages, de champs appartenanta
certainestribus,de plantatio.." .
15.44 The BritishreplytoCambondated4 March 1916, signedbythe BritishMinister
LordCrewe(NC-M2291, agreed withthe French proposabfor "theprovisional
administratioof the Cameroonsduringthe continuanceof thepresentwar".
15.45 By a Note of 8August 1916,the BritishForeignSecretaryA.J. Balfour,advised
theFrenchAmbassador thathe proposedtoinform theGovernor-Generao lf Nigeria
that:
"..thelimitsofBornu,which itis understooarewellknown locally,
though notcorrectly shown on any map, should be determinedby
consultatioand in agreementbetween thelocal Frenchand British
authorities;and that anydifference ofopinion, which there is no
ISs SeeA. BonarLaw'sIener3 October1916toLoLugardaiNC-M227 reasonto supposewill arisein viewofthe cordialrelations between
the authoritiein question,should be referredto theirrespective
Government s.(NC-M230)
15.46 On 25 January1918, theGovernor-Genera lrote in replto the despatchofthe
Secretary of Statefor theColoniesdated4 August 1917 (Ne-M 231), which
despatch had requestedthatdescripitons of alternativeboundaryIines shouldbe
preparedin anticipationof negotiationsconcerningthe Anglo-Frenchboundary.
The Governor-Genera enclosed a mernorandum dated 9 January1918 from the
Lieutenant-Governo orf the NorthernProvincesof Nigeria,H. S. Goldsmith,to
whichwasattached
"...a technicaldescriptionwith maps, preparedby theActingChief
Surveyor,of the presentProvisionalAngIo-Frenchboundary, andof
thefouralternativeoundarylinesso farastheNorthernProvincesare
concerned betweenBomu andthe BanyoDistrict.." (NC-M 232)
15.47 The Acting Chief Surveyor,T.3 . aters,had furnishedthe descriptionsof the
proposedalternativeboundarylines from LakeChad to thejunctionof the River
Bantajiwith the RiverFaro. The fourdescriptionsunifomly set ouas the first
sectorfromthe Nort thefollowing:
"Startingfromthejunctionof the RiverEbeji (or Lebait)with Lake
Chad(latitude12"31' 30t',longitude14" 12')theboundaryfollows
the courseof theRiverEbeji .."
15.48 Also attacheto Goldsmith'smemoranduro nf 9th January1918 was adocument
dated 28 November 1917 by SecondDistrictOfficerG.J. F.Tomlinsonentitled
"Noto enthe relationsof GulfeiandLogoneto Bornu". Tomlinson concluded:
"Theupshotof these inquiriesgoes to show that in so far as the
Britishclahs in the NorthernCameroons are concerned with the
extentof Bomu asitexistedbeforeRabeh'sinvasion,theRiverShari,
at anyratenorthof theconfluencewiththe LogoneRiver,is not only the natural,but the politicand historicalboundary.The French
wouldnodoubtbeunwillingto allowtheinternationalrontietocorne
sonear toFort Lamy asit did beforthe War. Kusseri,therefore,
would have tabe Frenchalong with Logone. Itwould, however,
seem thaonal1 groundsa good casecouldbe madeout for extending
theBritissphereto the Sharinorthof thelinewhichMoiselshows
on his :3ûû,ûûû map asforming the southernboundary of Gulfei
Sultanat.
15.49 On28 April 1919, inresponsetoa requestforinformatiobythe ActingGovernor,
the Secretaryof Siab for the Coloniesnow Lord Milner,telegraphedhim as
follow:
"...regardingthe boundaryof the Cameroons, nothin has been
decidedat Parisyet,but Simonmade thedefinitestatementthatthe
French wouldraiseno difficultiesabouttheBritishhavingthewhole
of Geman Born ...
As regardsBomu, untila settlementisreachedyou mustmanage to
tideoverthedifficultiwhilemaintaininünimpaired ourclah toal1
German Born. " (NC-M 233)
(ii} The MilnerlSimonDeclaration,duly 1919
(a) NeeotiationsatVersailles
15.50 A meeting of the SupremeWarCouncilwas held atVersailo lne7 May 1919.
The BritishparticipanwerePrimeMinisterLloydGeorge and ForeignSecretary
A.J. Balfour, witC. Stracfieyin attendance. President Clemenceau andM.
Simon, theMinisterforthe Colonies,representeFrance. Itwas decidedthatin
respectof Togolanand theCameroons
"FranceandGreatBritainshall make ajoint recommendationto the
Leagueof Nations asto theifuture"(NC-M 234,page 4)15.51 In a memorandumdated inParis on29 May 1919, the SecretaryofStateforthe
Colonies,LordMilnerdiscussed thefuturestahisof the ex-GermanCameroons
(NC-M 235). HavingindicatedthatSimonwas convincedthatthemeetingof the
SupremeWarCouncilon 7 May 1929 had "virtuallydecided"that Cameroons
shouldnot be mandated territory, ilnerpointeout on theotherharidthatLloyd
George'sview of the meetingwas that"thatquestionwas deliberatelleftopen".
Milnerconcluded:
"lnview of thedifferenceof opinionwhichthusevidentlyexistas to
what actuallydid happenatthatMeeting,I think, as I havetoldM.
Simon, that theody course for us to pursue is Io confine our
recommendations tothe questionof boundaries,on which we have
corne to acompleteagreement, andnot to attempttomake anyjoint
recommendatio n ithregardto mandates,but toleavetheCouneil to
dealwiththatmatter as itthinksfit."
(b) The Declaration
15.52 On 10 July1919, LordMilner andM. SimonsignedthefollowingDeclaration:
"The undersigned...haveagreedto determinethefrontier,separating
theterritoriof theCameroonsplacedrespectivelunder theauthority
of their Govements, as itis tracedon the map Moisel 1:300,000
annexed tothe presentdeclaratioand definedin the descriptionin
threearticlealsoannexedhereto." (NC-M 50)
15.53 The agreement used Moisel's :300,00 m0apof "Kamenin" in ten sheets. Sheet
A4 (Tschad)relatedto thenorthernmoss tectionof the line described. A mapof
the Cameroof16 on the scale 1 :2,000,000 was also attached to the annexed
descriptioto illustratethedescriptionof the frontier.
256WarOfficeeditNo. 2793 datedJ191515.54 Article 1 of thedescriptiannexedtothe Declarationbegan:
"The frontierwiii stfrom themeeting-poinof theihreeold British,
FrenchandGermanfrontierssitüatedinLakeChadin latitude13 " 05'
N.andin approximatelylongitude14" 05'E. of Greenwich.
Thence thefrontiewillbe determinedas fo1iows:-
1. A straightlinto themouthof the Ebeji;..."
15.55 The line thus describedfMap 49 inthe Atlas)departedconsiderablyfrom the
Anglo-Gemn boundary inthe Lakedelimitedby thepre-1914treaties.Thiscan
be seen byexamining theMoiselMap A4 (Tschad)(Map 50 intheAtlas)onwhich
theMinistersaffixedtheirsignatures.The overprintedgreen line ranfrom the
startingpoint specifiin a south-easkrlydirection. It crossedthe red line
representinthewesternboundaryof the Cameroonswithin thewaters oftheLake
andmived on the southeni shoresome fivemilesfurtheeastwards.
15.56 Upona~lysisofthevarioustreatyIinesninningthrough ntheLake(Map51
Atlasand cornparisonwiththe CO-ordinatespecifiedinArticleI,itappearsthat
the referento the "meeting-poi"toftheoid frontierswas intendedasreference
to thepointwhere the Iine othe 1908 Franco-GemanConvention metthe Iine
describedin the 190and 1910 Anglo-French Instruments.
15.57 Poragraph1 ofArticle2 of theDeclarationread:
"Itis understoodthatat the time of the local delimitationof the
frontier, wherthe naturalfeaturto befollowedarenot indicatedin
the above descriptionthe Commissionersof the two Governments
will, as faras possible, but withoutchangihe attributionof the
villagesmed in Article1, laydownthe frontierin accordancewith
naturalfeatures(rivers,hillsor watersheds).
TheBoundary Commissioners shallbe authorisetomake such minor
modificationof thefrontieIineasmay appearto them necessaryin
orderto avoidseparatingvillagesfromtheiragricdturallands. Such deviationshallbe clearlmarked on specialmapsand submittedfor
the approvalof the two Governments. Pendingsuch approval,the
deviatioshailbe provisionallrecognisedandrespected".
15.58 In sendin o the ForeignOfficeprintedcopies of the Cameroon and Togoland
Declarations,Stracheywroteon 28 August 1919 (NC-M 236)pointingout that:
"Thesedeclarasionsareconcemedonly with thefutureboundariesof
the territories,andtheircompletionis a firsttoecarryingoutthe
directionoftheSupremeCouncil.
At thepresentmoment GreatBritainand Francehavenotgonefurther
inthedirectionofa "jointrecommendation."Questionsas totheform
of themandates (andwhether a mandate rnightbe dispensedwithin
thecase of Togolanr demainto be settle".
15.59 On 19 September 1919,LordMilnerwrote tothe Goveniorof Nigeriaexplaining
the backgroundto theDeclaration(NC-M 237). Afterdiscussingthe boundary
areasLordMilnerwrotein conclusion:
"12. Thoughthe BritishandFrench Govements havethus reached
a definite agreementas to the future territorialdivisiof the
Cameroons,various decisions have still io be takenbeforeeither
country canreceivea definitpermanen itleM its respectivesphere.
Whetherthe Cameroonsshould be held undermandate, and, if so,
underwhichformof mandate,and wheîherthe senlementwill need
the priorapprovalof theLeagu ef Nationsarequestionswhich are
stillunsettledItis, however.desirablethatyourGovernent should
be informedof the agreementwhichhasbeenarrived atwithoutdelay,
so thatyou mayproceedto considerthestepswhich shouldbe taken
locally either before or afkr the outstandiquestionshave ken
decided and agreementhas beenconfirmedby the Powers." (c) The imvlementationof theDeclaration
15.60 On 3 November1919, the French Ambassador wrote tothe Secretaryof Sbte for
ForeignAffairsaboutthe DecIarationsmadeon 10 July 1919 for the Cameroons
andTogo(NC-M238). He pointedout thattheyhadbeen approvedby the French
Governmena tndsaidhe would be happyto learnwhethertheBritish Govemment
likewisehadapproved them. Re wenton tostattheFrenchGovernment's opinion
that it would lx better to applythe two declarationsimmediately,if only
provisionally.In repIy,LordCurzon wroteon 13 February1920(NC-M 239):
"His Majesty's Government are in agreementwith the French
Govemment on this point, and are preparedto codirm the two
declarationinquestion,and toconsentto theirprovisionalntryinto
force,pending thedefinitivesettlementtheregime to be appliedto
theseterritoris"
15.61 By aNote dated12April1921to theBritishAmbassador (NC-M 2401, theFrench
Foreign Minister refend to the provisionalnature of the Declaration,and
suggestedthatmodificationbe madeprior to adefinitivedelimitation:
"..VotreExcelknce ntignorepasqueles zonesfrançaiseetanglaises
du Cameroun n'ont encore été l'objet que d'une d&limitation
provisoireà laquelle iy auralieu d'apporterdiversemodifications
et ily auraitintkrê t ce que ces rectificatiofussentarrêtéeen
principe avant le départde la Commissionmixte chargéede la
délimitatiodéfinitivde la frontiè".
15.62 The ForeignOffice'spositionon thiNote was containedin a Note tothe British
Ambassador on 27 May 1921 (NC-M 241) whichstatedtha:t
"Itwill be preferatoeleaveEhidelimitationuntilafterthemandates
havebeenissued ..."15.63 In responseto a letterfrom the FrenchForeignMinisterdated 18 July 1921
(NC-M 2421,coricerningmodificationto be madeto the Iinedescribedby the
Declaration,theBritishAmbassador wroteon 23 October1921as follows:
"HisMajesty'sGovemmentagreewith the FrenchGovement in
consideringthastome modificatioof theboundaryagreeduponinthe
Milner-Simondeclarationof f0thJuly, 1919, shouldbemade. They
areof theopinion, however,thatthepowersgiven by Article2of the
descriptionannexed tothat declaration,whichgiveto the Boundary
Commissionerslatitude to makeminormodificationsof the frontier
Iine,wili notbe sufficietoenablethe necessarymodificationsto be
made. As thedraftmandates submittedto theLeague of Nationsfor
the Cameroonsdefine the Britisand Frenchspheresby reference to
the Milner-Simon declaration,and as this declarationis not now
capable ofalteration,it wouldappearkst, unlessthe preamble and
Article1of thedraftmandates arerecastaltogether,ththe following
sentenceshouldbe added to Article1of the draftmandates:-
'This line may, however,be slightly altered by agreement
between His Britannic Majesty's Govement and the
Governent of the French Republicwhere an examinationof
the localitiesshowthatitis undesirable,eitherin tinterests
of the inhabitanor by reasonof any inaccuraciein themap
(Moisel 1:300,000)annexedto thedeclaratiotoadherestrictly
to the linelaiddowntherein'
LordCurzondesiresme topointout thatif theabovealterationwere
made by mutual agreement between the British and French
Governmentsthe draftCameroonsmandateswould then be ina form
in whichtheycould be prornptlyapprovedby the League of Nations
withoutthere being any need for subsequentamendments tothese
mandates regarding the boundary; and that further the exact
modificationoftheboundarywhicharedesirablecouidthenbesettled
withthe FrenchGovernment at leisureandpreferablyby negotiations
betweentheNigerianandFrenchCameroonsadministrations ,ubject
to the agreementarrived at being subsequentlyapprovedby His
Majesv s Governent and theFrenchGovernmen " (NC-M243)
15.64 Ina Notedated12 Decernkr 1921theFrenchGovemment agreed withthe above
proposaltoamendArticleI of thedraftMandate(NC-M 2441,and in aNotedated
23 April 1922 it agreed with the proposal that the negotiationstowards a delimitationagreementshould be conductedby the local authoritiessubjectto
approvalbythe home Government( sNC-M245).
(d) TheLeame of NationsMandates
15.65 On 20 July 1922,the Council of the Leagueof Nations issued an instrument
conferringon GreatBritainthemandate for partofthe Cameroons (NC-M 51).
Article1, incorporatitheamendment mentioned above,readasfollows:
"The territoryfor whica mandate isconferreduponHis Britannic
Majestycomprisesthatpartof the Cameroonswhich liesto the West
of thlineIai down intheDeclarationsignedon the 10tSuly,1919,
of whicha copyis annexedhereto.
This linemay, however,be slightly modifiedby mutualagreement
betweenHis BritannicMajesty'sGovernment and theGovernment of
theFrenchRepublic where anexaminationof thelocalitiesshowsthat
it is undesirable,eitherinthe interestsof the inhor byreason
of any imccuraciesin themap, Moisel 1:300,000,annexai tothe
Declarationto adherestrictto theline laiddowntherein.
The delimitationon the spot of thislineshall becarriedout in
accordancewith theprovisi ofnhe saidDeclaration.
The final reportof the Mixed Commissionshall give the exact
descriptionothe boundarylineastracedon thespot;mapssignedby
theCommissioners shallbe annexetothe report. Thisreportwitits
annexessha11bedrawn up intripkate: oneoftheseshalbe deposited
in the archivesoftheLeagueof Nations,one shall be kept by His
BritannicMajesty'sGovement, andone by the Governmentof the
FrenchRepublic .
15.66 Article11 read:
"Theconsentof theCouncilof the LeagueofNations isrequiredfor
anymodificationof thetermsof thismandate."15.67 On the samedate, theCouncilof theLeagueconferred aMandate in similatems
on France in respect ofthe part of Cameroons situated to theEast of the
MilnerlSimonline (NC-M 52).
(e) Britishdealingwith thePermanent Mandates CommissionandFrance. 1922-1930
15.68 A BritishReport on theCameroonscovering theyear1922 waspresented to the
League of NationsPermanenM t andatesCommissionin 1923. Inrespectof "the
Emirateof Dikwaadministered as part of the NigerianProvinceof Bornu, the
Reportstated(para.60) that"the'temporary'internationbloundarythenbrought
intoforcewas of anartificialandarbitracharacter".TheReportdeclared(para.
65)that "thesoonera BoundaryCommissionwiîl-iextensivepowersisappointedthe
bemr" (therelevanpagesofthe Reportareat NC-M246).
15.69 During theproceedin of the PermanentMandatesCommissionon 4 July 1924
(p.33 of the Minutes atNC-M 247) the Britishrepresentative,Ormsby-Gore,
statedthatsincethepublicationothe1922Reporthe hadmet the Governor ofthe
BritisCameroons and thatthe "politicalquestion"hadbeen reducedto one of
"verysmallproportion sas follows:
"Inviewof al1thecircumstanceandof thetime thathasnoweiapsed
and the accommodationswhich have taken place, the British
Governmend toes not nowdesiretoask for anyfar-reachingchanges
of theMilner-Simonboundary,butwouldbe gladif a fewquite minor
adjustmentscouldbe adoptedby mutual andlocal consent."
15.70 TheFrenchrepresentativerespondedbystatingthatthisformulawasinaccordance
with the views of the FrenchGovernment,"whichwas of theopinionthatminor
adjustmentsof thefrontierfortheCarneroon..werebothpossibleanddesirable".15.71 The Commissionreported tothe Councilof the Leagueof Nations at it29th
Session (p. 1404of theMinutes,atNC-M 248):
"Itis happyto observethat theFrenchGovernmentf ,orestallingthe
recommendation addresseto iby theCouncil,hasnotonlyconsented
ro communicate its views concerningthe desirabilityoeffecting
certain rectifications of the frontier-Iine,but has stated its
readinesto enterintonegotiatiowiththeBritishGovernment on this
subject.The Commission hopes thathese negotiationswilsoon be
broughtto asuccessfulconclusion"
15.72 In a Note to the FrenchForeign Ministerdated25 Febniary 1925, the British
Ambassadorstated fNC-M249):
"... His Majesty's Govemnt are prepared to accept for the
Cameroons, aswell as forTogolan the proposalcontainedin the
Ministryof ForeignAffairs'note of 23rd April, 1922, to teffect
that an agreement regarding the Anglo-French boundary as
contemplated in the mandates forthe French and Britishspheres
shouldbe provisionr aeaichedby negotiationsbetweenthe local
Governments in Africa, that this provisionalagreementshould be
subrnitteforconfimation totheFrenchandBritishGovemments ,nd
that, if be confimed, the boundaryshouldthenbe delimitedby a
Boundary Commission".
15.73 Ena responsedated4April1925, theFrenchGovernmena tgreedwiththisproposed
procedure(Ne-M 250).
(iii)The ThomsonlMarchandMaration, 1929 and the HendersanfdeFleuriau
Exchangeof Notes, 1931
15.74 At themeetingof the PermanentMandatesCommission on 11 November1926 to
examine theBritishReporton the Cameroonsfor 1925 (p.105of the Minutesat
NC-M 25l), theBritishrepresentatieaidthatthere habeena meetingofDistrict
Officersfromboth sides of the frontier,whose "recommendatioregardinareas in disputewouldbe subrnitteto the respectiGovernmenr, and induecourse a
commission wouldbeappointedfinally todelimitthefrontier."
15.75 Negotiatiomconcedngtheboundarycontinuedu Initil1por9for1929,
presentedto theCommission in 1930, theBritishGovernmentwrote at page 11
(NC-M252):
"The Protocol whichwas drawnup during1928 ...was signedon
behalf of both the Cameroonsunder British Mandate and the
CameroonsunderFrench Mandate during 1929. The Protocol has
been subrnitteto the respectiHome Govements forapprova lnd
ratificati'.
15.76 It is thusapparentthaiit wasat some pointin 1929that the Governorsof the
Britishand French Cameroons, ThomsonandMarchand respectively,ignedthe
Declaration(NC-M 54) in whichtheystatedthatthey:
"haveagreed todeterminethefrontierseparatingtheterritoriesof the
Cameroons placedrespectivelyunderthe authorityothe Britishand
French Governments, as is traced on the map annexed to this
declarationanddefinedin thedescriptioalsoannexed hereto."
15.77 The descriptionindicate138pointsor sectors, anbegan asfollows:
"Theboundary startfromthejunctionofthe threeold British,French
andGeman boundariesat apointinLakeChad13" 05' latitudenorth
andapproximately 14"05' iongitudeeastof Greenwich. Fromtheie
the boundary hasbeendetemined as fol1ows:-
(2) Ona straightllne as asrthemouthof the Ebeji..."(Map 52 in
the Atlas)
15.78 At themeetingof the Commissionheid on 4 November1930 (p.2o 0f theMinutes
atNC-M2531, inrepIy totheobservationthattheMiIner-Simon line couldbeno
betterthan th"old diplornatboundaries" sinceitalsocutthroughtheterritories of triùesthe Britishrepresentatieointedout thatin thenorthernportionof the
tenitory
"... itwas desiredto restore the ancientboundariesof Bomu and
Adamawa ".
15.79 Withinthe British Foreign Office therewas discussionon whetherthe Protocol
should,like thereportof theboundarycommissioners inTogolan de,laid before
Parliament.By a letter date27 May 1930,the ForeignOfficeproposed to the
Colonial Officetha it shouldbe so laid (NC-M 254). ln areply dakd 17 June
1930,theColonial Officedid notobjecttothe procedure.However, itpointedout
that:
"..theProtocol,a copyof whichwasenclosed intheIetterfromthis
Ofice dated the7th of May,is notthefinalrecordof thedelimitation
of theboundary butis a preliminaryagreementonwhich the workof
theBoundaryCommission will be basedIn LordPassfield'sopinion,
therefcir,tisnot reallynecessary atthisstageto lay the protocol
beforeParliament. He would abo observe thataftertheFrench and
BritishGovernments have approved the Protocol the Boundary
Commission will have to be assembled in order to delimit the
boundaryon the ground, and to adjustcertain points which, as
mentionedin the thirdparagraphof thedespatch from the Governor
of Nigeria,havenot yetbeenofficiallydefine".(NC-M 255)
15.80 The French Ambassador, ina Notedated27 June 1930(NC-M2561,asked forthe
viewsof the BritisGovernmen ts tothe procedurewhich shouldbe adoptedfor
ratificationof the Protwol. On 8 July 1930, ihe ForeignOffice wrote to the
ColonialOffice:
"ThepresentProtocolappears in substancetodefinetheboundaryand
toleave littto be doneby the BoundaryCommission,but itis not
theproduetof a BoundaryCommissionconstituted forthepurposesof
ArticleIof theMandate,but onlya preliminarysurveycarriedoutin
order iodetermine moreexactlythan was donein the Milner-Simon
declaratioof 1919 theIineuitimatelto be followedbythe Boundary
Commission. Moreover, it appearsfromyourletkr of 7 May last, thatLordPassfield[th Seecretarof StatefortheColanies]does not
regardtheProtocolas a finalreportof whicha signed origilersion
shouldbe communicated tothe Leagu oef Nations,andiwill beseen
from the enclosed Memorandum thatthe view of the French
Ambassador on this pointis the same."JNC-M257)
15.81 The ForeignOffice,withtheagreementof theColonialOffice (seethe Notedated
9 July1930 at NC-M 2581,suggestedto theFrench Ambassador ,na Notedated
12August 1930 (NC-M 259), that the Protocolshould be confimed by an
Exchange of Notes.
15.82 On 9 January1931 theBritishandFrenchexchanged Noteswhichwere signedby
ForeignMinistersHenderson and de FleuriarespectivelfNC-M 54). The French
Note read:
"J'ail'honneurde faireparvenirci-joina votreExcellence letexte
d'une déclarationue leHaut-Commissair aeuCameroun sousmandat
françaisetle Gouverneurde la Colonieet du Protectoratde Nigéria
ont signérécemment. Elleestrelativà lafrontièrentre noszones
respectvesde mandatsurle Cameroun.
VotreExcellencea sans doutereçu letextde la même déclaratio nt
elle a certainement observe qu'il ne s'agit là qued'une étude
préliminaireC. elle-ciestdestià&donner àladescriptiode laligne
que devrasuivre la Commissionde Délimitatioplusde précisioque
ne l'a faitla déclaratMilner-Simond , e 1919.
Quoi qu'ilen soir,la premièredéclarationis& ci-dessusdéfinien
substance la frontièredont il s'agitet le Gouvernementde la
Républiqua e l'honneurde confirmer, arla préseneote,l'agrément
qui luia été implicitemendonné. Si une pareilleconfimation est
faitepar le Gouvernementde Sa Majesté dansle Royaume-Uni,la
délimitationdéfinitieourraetreentreprisepar lamissionprévue à
cet effetpar1'Article1 dumandat .15.83 The BritishNote inreplyreadin part:
"2. His Majesty'sGovernment agreethatthisDeclarationis. as you
pointout,not the productofa boundarycommissionconstimtedfor
thepurposeof carryingouttheprovisionsof Article1oftheMandate,
but only the resultofa preliminarysurvey conducted in order to
detemine more exactlythan was done in the Milner-Simon
Declarationof1919 thelineultimatelto befollowedby theboundary
commission; that,none the less,theDechrationdoes in substance
definethefrontierand thatit is therefdesirablethatheagreement
embodiedthereinshallbe confimedbythetwoGovernments in order
thatthe actualdelimitationof the boundarymaythen be entrusteto
a boundarycommission,appointed forthepurpose inaccordancewith
the provisionsof Article 1of the Mandate.
3. His Majesty 'sGovernment notethatthe French Government by
their noteunder referencconfimi, for theirpart, the agreement
embodiedintheDeclaration and1 havethe honourin replyio inform
your Excellencyhereby that His Majesty's Governent shilarly
confirm thisagreement.
4. His Majesty's Government in the United Kingdomaccordingly
concur with theFrenchGovernment that thactuaidelimitationcan
now be entnisted to the boundary commission envisageil for this
purposeby Article1ofthe Mandate ".
15.84 TheBritishReportfor 1930,presentedto thePermanen t andatesCommission in
1931 (NC-M 260)repeatedatparagraph16 theunderstandinsetout inparagraph2
of thatNote.
(iv) hst-1931 DemarcationEfforts
fa) Dealiws withthe PemanentMandates Commission 1931-1939
15.85 At themeetingof thePermanent MandatesCommissionheldinOctober/November
1931, the delimitationof the frontierwasdiscussedwastpointedout(p. 124 of
the Minutes at NC-M 261) that "thefinal report ofthe Mixed Delimitacion Commission"had not been filed, as requiredby theMandate. In reply, M.
Marchandstated:
"...thework ofdelimitatiohad not yet startedTheauthoritiesof
the Frenchand BritisCameroonshad cornetoan agreement. The
work of delimitationwhich was to begin in 1932, would take a
considerablthe."
15.86 The BritishReportsfor the years 193to 1935 (therelevantpagesof whichare
comprised in NC-M 262 to NC-M 266) presentedto thePermanent Mandates
Commission intheyears 1932to 1936 respectivel,xplain eat thework tobe
carriedout bythe BoundaryCommissionhad been repeatedlypostponed,largely
due to finaxialstringency.Thisreasonwashighlightedinthe BritishReportfor
1933,which stateatparagraph (ii) (NC-M264):
"Althoughthefrontieris sufbciendefinedforordinarypurposesthe
Governent isalivetothedesirabiliofan exactdelimitation.Inthe
presenifinancialstringencytheutiliofthe workwould notjustify
the expense, estimated at several thousandpounds, whic h the
appointmenotf a commissionwiththenecessarytechnicalstaffwouid
involv "e.
15.87 TheBritishReportfor 1936, presentetothe Commission in1937,announced that
ihad been provisionalagreedthatthe workof theBoundaryCommissionwould
beginon 1 November1937 (NC-M 267, paras.11-12). Likewiseitwasnoted at
the 33rd Session of the PermanentMandatesCommission Chat theReport for
CameroonsunderFrenchMandatefor 2936 statedthat:
"...theorganisatioofthe missionforthedelimitationof the frontier
betweenthe CameroonsunderFrenchmandateand the Cameroons
underBritishmandate was on the pointof completion,andthatthe
work wouldprobablybegin inNovember1937."
(Extractfrom p.65 of the Minutes of the 33rd Session of the
Permanent MandatesCommission,NC-M268).15.88 The British and FrenchGovernments in or before November1937 agreedon
Instructi tons senttothe BoundaryCommissioners (NC-M269). Article6 of
the Instructioread inpart.
"TheBoundary Commissionshallproceed toestablisthewholeof the
boundarydescribedin Article1 of theAppendixto thMandate .
15.89 Article11 read:
"Indemarcating the boundary stricregardshould be paid to the
provisionof Article2(1)(2)and(3) oftheAppendk totheMandate.
Account should also be taken of the Agreement regardingthe
Boundary as recordedin the Declaration confimed in the notes
exchangedbetween the French Ambassadorin tondon and His
Majesty'sSecretaryof State for ForeignAffairson th9thJanuary
1931."
15.90 The BritishReportfor1938(NC-M 2701 ,resentedtothe Commission in 1939,
setoutanaccount of the frontieratheworkof delimitationwhichhadstartedin
theSouth. The accountbegan(para.21) asfollows:
"The workof delimiting the frontierbetweenthe French and the
BritishMandated Territor begsn,in December 1937, proceeded
duringfivemonthsof the yearunder report."
15.91 Inan apparentresponseto earlierquestionsfromthe Commissionconcerningthe
boundaryt,he 1938Reportstated(paras.25 and26):
"25.Itwas lefto theMandatory Administrationo locatethelinon
the ground and toeffect such minor adjustmentsas might prove
necessar yhe procedureadopted was for the local officersof the
two Administrationto meet as opportunityoffereand to workout
joindya provisionalfrontieral1thedoubtfulsectors,recordingtheir
agreementin procès verbaux for theratificationof their respective
governments.Theirtask wasnot easy,althoughtheody adjustments
within kir purview were those requiredfor the fixingof a (b) Dealinnsw ith theUnitedNationsTmsteeshivCouncil, 1946-1961
15.95 The CameroonMandates to Britainand Francewere replacedby Trusteeship
Agreementsafter the establishmentof the UnitedNations. Article 1 of the
Agreementfor the BritishCameroons,which was approved by the U.N.General
Assemblyon 13 December 1946,readas follows(NC-M 56):
"TheTerritorytowhich thisAgreementappliescomprisesthatpartof
the Cameroonslying to the Westof the boundarydefinedby the
Franco-BritisDeclarationof10July 1919, and more exactlydefined
in the Declaration made by the Governorof the CoIony and
Protectoratof Nigeria and the Gwemor of theCameroonsunder
French mandatewhich was confimed by the exchange of Notes
betweenHis Majesty 'sGovernment inthe UnitedKingdomand the
French Governmentof 9 January1931. Thisline may,however,be
slightly modified by mutual agreement between His Majesty's
Governmenitnthe UnitedKingdomandtheGovernerit of theFrench
Republic where an examinationof the localitieshows that it is
desirableinthe intereststhe inhabitants."
15.96 TheAgreementforCameroonsunderFrenchAdministration fNC-M 571, approved
on the same date, provideda strikinglydifferentdescriptionof the territory
whichit reiated. ItçArticle1merelyread:
"The Territorto which the present TmsteeshipAgreementappIies
comprises thapartof theCameroonslyingtotheeastoftheboundary
definedby the Franco-BritisDeclaratioof 10July1919. "
15.97 The firsReportfor theCameroonsunderUnitedKingdomTmsteeship,for 1947,
was presentedtothe TrusteeshipCouncilof the U.N. in1948 (NC-M273). At
page3, itdescribedtheThomson-Marchan Ddeclaratioandcontinued:
"Thisprotocolwasratifieasa "preliminarshidy"by the Britisand
French Governments in 1931 and fomed the secondarybasis for a
finaldelimitatiobythejoint FrenchandBritishboundarycommission whichbeganwork in December,1937. TheCommission continuedits
work until22ndApril,1938,whenthewet seasonbroughtitsactivities
to a ternporarystop.Itreassembledon 23rdNovember, 1938, and
continuedthe delimitationothefrontieruntiIMaywhenitsactivities
wereintempted by the invalidingandsubsequendt eatof the Head
oftheFrench CommissionM , .René Dugast,Administrateuen Chef.
By theend of thesecondseasonthe sectionof thefrontierdelimited
andcovered by procès verbauxhadreached from the coastto the
vicinityofMountManenguba inKumba Division,adistanceof some
135 miles. The outbreak of war preventedthe reassernblof the
Commission in the 1939-40dryseason andthe delimitatiohas not
sincebeenresumed".
15.98 The U.K. Reportfor 1949,presentedtotheTrusteeshipCouncil in1950,stateat
paragraph46 thatalthoughtheJointCommissionhad notmetsinceMay1939, "the
NigerianGovernmentis consideringthe possibilityof resumingdelimitation"
(NC-M 274). However, therisno evidencethatthedelimitatiowas resumed,or
indeed thatanyfurtheractof delimitatioordemarcationwascarried out,atany
subsequentthe duringtheTnisteeshipperio.
15.99 Thus, as at 1 June 1961, the date upon which NorthernCameroons was
incorporatedintotheindependentFederationof Nigeria,thepmss of delimitation
anddemarcationof the boundaryin LakeChadwas stillat anembryonicstage. THE ASCERTAINMENO TFTHE BOUNlDARY
WITHINLAKECHAD :THEABSENCEOF A FINAL,
DELIMITATIONA. Introduction
16.1 The purpose ofthepresentChapteris todemonstratethattherehasbeen no final
determinationof theboundarywithinLake ChadbetweenNigeriaand Cameroon.
This demonstratioinvolv esefollowingelements:
First: the colonial boundaryagreementsoftheperiod 1906 to1931 did not
producea conclusivedelimitatiintheLakeChadregion.
Second: the uncertaintieremainedafter the Independen ofeNigeria and
Cameroon.
Third: the work of the Lake Chad Basin Commissiondid not produce a
delimitationwhichwasfinaandbindingon Nigeria.
16.2 Aswillbeshownsubsequenrly,inChapter17,withoutprejudicetothepropositions
rehearseinthe previoussub-paragraphN,igerihasacquiredtitleto number of
villageintheLake Chadregion onthebasisof historicconsolidatiooftitleand
acquiescencon thepartof Cameroon.
B. The Ambitof LakeChad forPresentPurposes
16.3 "Me Cbad" ithedescriptiowhich is customariappliedtotheareawhichis the
historicalflood-zoasindicateon mapsavailableinthepublicdomain.This area
includesthe areaof actualinundatiatany onetirne.This conventiov nealsion
ofLake Chadis sometimesdescribedas the "Normal"LakeChad.257
2s7Seepara13.etseq.above.SealsotheLakChadBasinCommissiSAP pp. 22-24, thgraphiat
Fig13.6above.16.4 Numerousvillagesexiston thebedoftheLake. These are tobe distinguishfrom
thesettlementon themainlandsof NigeriaandotherripariaState Su.chvillages
maybe sitedeither on islandswhichare surroundedby wakr perennially,or on
locationswhichareislandsinthewet seasonor on locationswhicharesied onthe
dried-uphistoricafiood-zoneof the "Normal" Lake Chad, with floodingas a
remote contingency.
16.5 For presentpurposesitis necessarto employthe conceptof the"Nomai" Lake
Chad asthebase of referenceItis thiscustomaryusagewhich is legallyrelevant
andwhichconstitutes theregiontowhichtheongoingprocess ofdelimitatioand
demarcationrelates.
C. The General Characterof the Process of Boundarv DeterminationCalled for in
Lake Chad
16.6 ThedocumentsrelatingtothefunctionoftheLCBCindeteminingtheboundaries
of thriparianStatewithinLake Chad sometimes employthe term"demarcation"
todescribethe naturofthe task. As will emergas thehistoricalbackgrounis
examineci,the essenceof the processis delimitationand the demarcelement
isnecessarilyconsequentuponandlogicaiIyanteritolegaIappreciationsinvohing
the interpretatandapplicationof variousboundaryagreementsof the colonial
era.
16.7 Themure of the agendainfront of the technicalexpertsof IGN emerges very
clearlyfromthelanguageofttiIGNReport oftheMarking Outof theInternational
Buundanes inLake Chad adopted at N'Djamen on 14 February 1990 (see
paragraph16.50 below). This refers,with complete justificatioto "the
delimitationof boundari.s"D. The Treatiesof theColonialPeriod
16.8 In Chapter15 above an account is given of thecomplex pattern of treaties
concluded in the colonial periodand relatito thedivision ofthe LakeChad
region. From the sequenceof internationatlransactionsdescribtherein,five
instrumentstandout. Theseare as follows:
(i) The Anglo-FrenchAgreementsigned on 29 May 1906 WC-M 39)
16.9 ThisAgreementmodified thedelimitatioof theAnglo-Frenchboundarycontained
inthe Conventionsigned on 8 April 1904. The 1906 Agreement,whichwas
ratifion29 August 1906 took thefonn ofa confirmatioof theProtocolsigned
on 9 April1906.Therelevantprovisionsareas fo~lows:
From themouth of thKomodugu-Yob ieLake Chad thefrontierwill
follow towardsthe eastthe parallelof latitude,passingthroughthe
thalweg ofthe mouthof the saidriveras farasa point situateata
distance35 kilom.from thecentreof thevillageofBosso. Fromthis
point itwiHmn in a straightlinto thepoint of intersectionthe
13thparalleof northlatitudewiththemeridianrunnin35'eastofthe
centre of the town of Kukawa,the meridian mentioned in the
Conventions ofthe 14thJune,1898, andthe 8thApd, 1904.
Itisagreedthat thIslandsof LakeChad siniatedwithinthe line laid
down in the last paragrapof Ari.1 will form an integrapartof
Britishterritoand thatthosesihiatedoutsidethatline wilIfom an
integralpartof the Frenchpossessions.
The two HighContractinghrties agree toguaranteefree navigation
on theLake toBritishsubjectsand British-protectpersons,and tu Frenchcitizensand French-protectedpersons,as faras regardstheir
persons andgoods.
The frontierset forth in the presentProtocolis indicatedon the
annexed map.
The two Govements undertake to appoint within a year
Commissioners who will bechargedwithdelimitingandmarkingout
on the spotthe linesof demarcationbetweenthe Britishand French
possessions,inconformitywithand inaccordancw e itthespiritof the
stipulationsof the presentProtocal.
Anne.
Althoughthedelineationofthelinesof demarcatioshownon themap
annexedto thepresentProtocolis supposedto be generaI1accurate,
icis agreethatthe Commissionershereafterappointedto delimitthe
frontieronthegroundshallbeguidedbythedescriptionofthefrontier
asset forthin the Protocol.
Itshall, however,be permissibleforthemtomodify the saidlinesof
demarcationforthepurposeof fixingthemwithgreareraccuracy,and
to make any indispensablealterationsof detail. Alterationsor
corrections oamoreimportann t atureaffectingthefrontierlinemust
be submitted,by thecommon consentof theCommissioners,to the
approvaolf theirrespectiveGovemments.
Itis understoodthatif the inhabitantslivinnearthe frontierthus
determinedshouldexpressthe wish tocross thefrontierin orderto
settlein the French possessions, or, inversel iy,the British
possessions,no obstaclewill be placedin the wayof theirso doing,
and theyshailbe grantedthe necessarytime toallowthemto gather
in al1 standingcrops, and generallyto removeal1 the propertyof
which theyarethe legitimateowners"
16.10 The Annex to this Agreement makes clear the provisionalcharacterof the
arrangemena tnd confersapowerof furtheralteratioor correction. (ii)Franco-German Agreement signedon 18April 1908 WC-M 40)
16.11 This Agreementprovides,inmaterialpart,asfollows:
fa)La frontièrentrele CongofrançaisetleCameroun à partirde la
Guinéeespagnole(El Muny), (méridien 9" est Paris, 1120' est
Greenwichs)uit:
(j).De là,elle descendleChari(Scbarjusqu'àsonembouchuredans
le lac Tchad(Tschad).
(k). De l'embouchurede la brancheprincipalenavigabledu Chari
dansle Tchad,tellequ'elleest déterminédans lacarte annexéeau
présenpt rotocollafrontièratteinl'interse dctioénridi12" 8'
est de Parisf14" 28' estGreenwich) avec le parallèle13" 5'de
latitudenord,suitensuitevers l'ouceparallèljusqu'àla frontière
franco-anglais(Conventionfranco-angl dui29emai,1906).
11estentenduque les îles du Tchadsituéàsl'ouestetau sudde la
frontièrci-dessusindiquéefontpartiedu territoireallemand:celles
qui sontAl'estetaunord fontpartiedes possessiofrançaises."
16.12 Thisinstrumentisoneof thesourcesrelevanto the processof delimitatwithin
theLake.
(iii) Anglo-FrenchAgreementsigned an 19February1910(NC-M 43)
16.3 ThisAgreementwasapprovedbyanExchangeof Notesdatedrespectively 17 May
and 1 July1911. The originalinstrumentapprovedwas aProtocolrecordingthe
workof anAnglo-FrenchBoundaryCommission. Therelevantpartof the Protocol
readsasfollows(Article1): "Fromthis point the frontier follows the thalweg of the River
KomaduguYobe as faras themouth of the riverin LakeChad.
As the courseof theKomadugu Yobe is extremelysinuous,rendering
it Iiableto frequechanges,itisnecessary tomake an arrangement
providingforsucha change. Thefollowingappearsthemostsuitable:
In the case of the river altering its courto the northwardor
westwardso as tointersectthestraightline betwekacons 147and
148to thewestward of thepresentpointthe newthalwegof theriver
willconstitutethefrontierfromthaforesainewpointof intersection.
Inthecaseof theriveralterinitscoursetothe southwardoreastward
soas notto intersectthelinas describedat 30 metresfrom beacon
148, thefrontierwill followthe thalwegothe riveras nowexisting
to thepointwherethe thalwegof thiold bedwilljoin thethalwegof
the newbedof the river.
Fromthis pointthe frontierwill foliothethalwegof the riveasit
may existfor thethe being as far as tmouth ofthe riverinLake
Chad.
The mouth of the KomaduguYobe has been rnarkedby an iron
telegraphpole, cementedat thebase, situatedin 1" 42' 29" north
latitude,8,250 rnetreseastof thecentreof thevillageof Bosso.
Fromthispointthe frontierfollowstheparallelof 1" 42' 29"north
latitudefoa distancof26,70 m0etres&Othepointon thatparallel35
kilom.fromthe centreof Bosso.
An ironteiegraphpole,setin cernentis erecteonanisland situated
approxhately 1,150metresbearing325 Ofromthispoint.
Fromthispointthe frontierfollowsa straightlinbearing 144" 34',
distance96,062 metresto thepointwhere the 13th parallelof north
latitudeintersectsthemeridian35' eastof thecentreoKukawa.
Thecentreof Kukawa is in 13"55' 35.5"nonh latitude.
The centreofBosso is in 13"41' 59"north latitud0" 15' 11"west
of Kukaw a"
16.14 This descriptionof the boundarysupersedesthatof 1906. The 1910 Agreement
assigns a valueto the parallelof latitude whicfoms the proposedalignment betweenNigeriaandNigerfrom themouthof theKomaduguYoberiverout to the
morenortherlyproposedtripointin Lake ChadbetweenNigeria,Niger and Chad.
The longitudevalueof thispoint,statetobe 35 kilometresfromBosso, is given
indirectlby adistancealongtheparaIlelfrom arnarkeratthe mouthof theriver.
Thelongitudeof Bossois givenrelativetothecentreof the viliageof Kukawa.
16.15 The Convention then provide tso setsof datafor establishingthe end poin-
which at the time layon the Anglo-Gemn boundarybetween Nigeria and
Kamerun. It givea bearingand distancetothisendpointbut it alsogives the
latitudeofthepoint(13O N) anditslongitudrelativto thestationinthecentreof
Kukawa. It is al1but certathattheformerdataset wasderivedfromthe latter
by calculationasitis inconceivablthatthecommissionenwouldhavetakenthe
troubleto measurea 96km.linebysteel tape.
(iv) The Thomson-Marchand Declaraiionof 1929 (NC-M 54)
16.16 ThisDeclarationofthe Govemorsreads,in relevantpartas follows:
"Theundersigned:
Sir Graeme Thomson, G.C.M. G., K.C.B.,Govemorof the Colony
and Protectoratof Nigeria,
PaulMarchand,Governor of the FrenchCameroons,haveagreed to
determine the frontier,separatintheterritoriesoftheCameroons
placed respectivelyunder the authorityof the Britisand French
Governments ,s is tracedothe map annexed tothisdeclarationand
definedin thedescriptioalsoannexed hereto.
The boundarystartsfromthejunctionof the threeoldBritish,French
andGermanboundaries ata pointiLake Chad13"05'latitudenorth
andapproximately 24" 05' longitudeeastofGreenwich. Fromthere
the boundaryhasbeendekrminedas foHow s
(2) On astraightlinas faras themouthof theEbeji."16.17 ThereferencetoLakeChadistobetakeninconjunctionwiththe~ineastracedon
the mapannexedto theDeclaration.
(v) The Anglo-French Agreement concluded by anExchangeof Noteson 9 January
1931 (Ne-M 54)
16.18 Byan ExchangeofNotesdated 9 January1931 theBritishandFrenchGovements
confimed 'the agreementembodied in' the above Declaration. The precise
languageof the ExchangeofNotes is significantinitsemphasis on the existing
need for 'anactualdelimitation'. TheEnglitextof theNotes is as foIlows:
"FrenchEmbassy,
London, Januury9, 1931.
M. leSecrétairde'Etat,
I HAVEthe honour totransmitto yourExcellencyherewiththe text
of a DecIarationsigned recentlyby the High Commissionerof the
Frenchmandatedareaof the Cameroonsand the Govemorof the
Colony andProtectoratoef Nigeria.Itrelatesto thefrontierbetween
our respectivespheresof the rnandatterritoryof the Cameroons.
YourExcellencywill no doubt have receivsd the textof thesame
Declaration and will certainly have observed that itconcerns a
preliminarysurvey oniy. This is intendeto describethelineto be
foiiowedbytheDelimitationCommission,moreexactlythanwasdone
in the Milner-SimonDeclarationof 1919.
However,the first Declarationmentionedabovedoes in substance
definethe frontierin question,andthe Governmeno tf the Republic
hasthehonour &O confim by thepresentnote theimplicitacceptance
of the Declaration. ifitis similarlyconfirmed by His Majesty's
Governmentin theUnitedKingdom,thedefinitivedelimitationcanbe
undertakenby the commissionprovided for in Article 1 of the
Mandate.
Accept,&c.
A. DE FLEURIAU" ForeignOfice,January 9,1931
YourExcellency,
IHAVE thehonourto acknowledge thereceipcof yourExcellenc's
noteof10-day'sdateonthe subjecofthedelimitatiooftheboundary
betweenthe BritishandFrench spheresof the mandatedterritoryof
theCameroonsa , ndtoinformyou thatHisMajesty's Governent in
the United Kingdomhave, as you surmised, received fmm the
Governorof the Colony andProkctorateof Nigeria the kxtof the
Declarationrecentlysignedbythe HighCommissioner of theFrench
Republicin theFrenchrnandatedareaofthe Cameroonsandhimself.
2. His Majesty'sGovernent agree thatthis Declarationis, as you
pointout,nottheproductof a boundary commissionconstitutedfor
thepurpose ofcarryi ougttheprovisi onAsrticle1oftheMandate,
but only the resultofa preliminarysurveyconductedin order to
determine more exactly than was done in the Milner-Simon
Declarationof1919 thelineultimateto befollowedbythe boundary
commission;that, none the lesstheDeclarationdoes in substance
definethe frontier;andthitis thereforedesirathattheagreement
embodiedtherein shalbeconfirmed bythe twoGovernment snorder
thattheactualdelimitatioofthe boundarymaythen be entrustedto
aboundary commission, appointeforthepurpose inaccordancewith
theprovisionsofArticle1of theMandate.
3. His Majesty'sGovernment notetha the FrenchGovernerit by
their note under referenceconfirm, for their part, the agreement
embodiedin the Dedaration;andI havethehonourin replytoinform
your Excellency hereby thatBis Majesty's Governent similarly
confirmthiasgreement.
4. His Majesty'sGoverment in the UnitedKingdomaccordingiy
concur with theFrenchGovernment thaithe actluzldelimitatican
now be entrustedto the boundary commission envisagedfor rhis
purpose byArticle1 ofthe Mandate.
I have,& c.
ARTHURHENDERSON. "
emphasisadded)
16.19 The referencetoArticle 1 oftheMandate involva esindirectreferencto the
Franco-BritishMilnerlSimon D)eclaratiosignedon 10 July19 19 (NC-M 50).
Article1of the Declarationprovidesas follows: "Thefrontierwill stfrom themeeting-pointofthethreeoldBritish,
FrenchandGermanfrontierssituatedin Lake Chadinlatitude13" 05'
N. andin approximatelylongitude14" 05'E. of Greenwich.
Thence the frontierwill be determinasfollows:
f1) A straightlinetothe mouthof theEbeji; ..."
"The undersigned...
haveagreedto determinethe frontier,separatingthe territortheof
Cameroons placed respectively under the authority of their
Governments as itis cracedonthe map Moisel 1:300,00 annexed
iothe presentdeclarationand definedin thedescriptionin three
articlealsoannexedhereto.
16.21 The locationof the startingpointof the boundarydescribedthe MilnerlSimon
Declarationwas madeuncertainby the useof theword"approximately" B.utthe
line describeddepartedconsiderablyfromtheintra-lakAnglo-German boundary
describedby the pre-191 t4eaties. This changecan be seenby examiningthe
MoiselMapA4 Tschadon whichMilnerandSimon affixetheirsignanires(Atlas,
Map 50). The overprintedgreen line of the new Anglo-FrenchDeclaratiocut
across thered Iinerepresentingthe earlieAngIo-Gennan boundary withinthe
watersof the Me. North ofthat point of intersection,the line described ran
Waugh waterswhichwerenot withinGermanKamerun atailbutwhichwerepart
of the Britissectorof the Lake:presurnabld,espitethis northwaextensionof
theline,the watersoutsideGermanKamerun were stillintendetobe regardedas
anintegralpartofthe BritishProtectorateof NorthemNigeria. Soutofthatpoint
of intersection,the green liof the Anglo-FrenchDeclarationran throughthe
watersof Geman Kamerunand arrived on the southernshore some five miles
- furthereastwards. Thiswouldhavetheeffect,once implernented,of addingto the
Britishadministersphere anareaof thewatersoftheLakewhich previouslwere
withinGerman Kamenin.16.22 Thefollowingpointsstand out. First&he descriptioofthe situationwithinLake
Chad providedby the Thomson-MarchanD declarationin conjunctionwith the
Mandate andthe Franco-BritisDedarationof 1919 is imprecise. Secondlythe
pre-1914 Agreementsappearto have been supersededbut this is not entirely
certain. Thirdlythe Thomson-MarchanD declarationdescribesthe startingpoint
of thelineinLake Chad ingeneralkrms f"approximately").
16.23 In anyeventthedelimitationof thealignmentdescribedin theThomson-Marchand
Declarationwas discontinuedin1938 (seeChapter 15 above), and no workwas
done in Lake Chad. Majorunceminties rernained,includi tng problernof
determiningthe position of the centreothe village of Kukawa,a pariof the
problernof identifyingthestartingpointin Lake Chadothealignmentdescribed
intheDeclaration.
16.24 Othersourcesof uncertaintyincludethe following:
(1) It isnotobviouswhichgeographical spheroidand daturnçhouldbe usedin
identifyingthe alignment of the boundary described by the Thomson-
Marchand DeclarationwithintheLake. Thiswoulddirectly affectthetrue
positionofthestartinpointof theline,intermsof identifyingwhatis really
meant by the latitude"13" 05' N", and plotting the old -10-French
boundaryof 1906 and the Meridian35' Eastof Kukawa (thealignmentof
whichwas basedupon thepositionsof KukawaandlorBosso).
(2) The expression"the mouth of the Ebeji"used in the 1919 and 1929
Declarationsinotcertain,andwouldbeparticularlyconfusingif thecourse
ofthatriverhadchangedinanywayover theyears.E. The Indewndenceof Cameroon andNigeriain 1960
16.25 Both Nigeria andCameroonacceded toIndependen wcthoutany changein the
pre-Independencbeoundaries,subjectto the tramferof the SoutheniCameroon
TrustTerritoryto independeni Cameroonas the resultof the plebiscite. The
plebiscitintheNorthern CameroonTmst Territ resy lteinthe arearemaining
within Nigeria and, consequently,the pre-Independencecolonial agreements
remainedrelevantin principle.
E The Arranpementsfor BoundaryDemarcation:The Roleof theLakeChadBasin
(i) The Positionafterthe Independence of Cameroonand Nigeria.
16.26 In the yearsfollowingthe Independence of Cameroon and Nigeria no work of
delimitatiowasundertaken.Itis truethatinthe 1970stherewerevariousbilateral
contactsto deal with boundaryproblems. Moreover, the mandateof the Joint
BoundaryCommission, established in 1965, included the determinationof
difficultiesconcernitheboundary from Lake Chad tothe sea:see the Minutesof
the Meeting of the Commissionon 12-14 August 1970 (NP0 13). But these
diplornaticeffortsdid nohave any practicaloutcorneso faras Lake Chad was
concerned.
258The MinutesotheLCBC meetinarebulkydocuments,mantifwhichwere a~exeby Nigerito its
PreiiminaObjections. "NPO"referencesSeciioaretohoseannexes. (ii) TheOrigins of theRenewedEffort at Delimitationof the Boundarieson Lake
Chad
16.27 The processof delimitationhas been undertakenunder theauspicesof the Lake
ChadBasinCommissionestablishedby a Conventionconcludedon 22 Mayf 964
(NC-M60). The Member StatesarethefourriparianStatesofLakeChad,together
with theCentralAfricanRepublic.
16.28 The Statuteof theLakeChadBasinCommissioncontainsthefollowingelaboration
of "Principleand Definitions:
"ArticleI: The Member Statessolemnly declare their desireto
intensiftheircooperationand effortinthe developmentof theChad
Basinas definedin ArticleII.
ArticleII: For thepurposeof thisConventionthe Chad Basinshall
comprisethe area as demarcatedon the map annexedto the present
Convention.
ArdicleIII: TheChadBasinis open totheuse of al1MemberStates
pafiiestothe presentConvention,withoutprejudice tothe sovereign
rightsofeach as stipulateinthe presentStatuterevisiothereof,or
subsequent relationthereunde rrbyspecial agreement.
Article Itr: Thedevelopmentof the said Basinand inparticulathe
utilizationof surface and ground waters shall be given widest
connotation, and refers in particulato domestic, industrialand
agricultural evelopment,the collectionof the productsof its Eauna
andflora."
16.29 Thefunctionsof the Commissionaredefined as follows(in Articl1x1:
"ArticlIX: TheCommissionshallhave thefollowingfunctions,iriter
alia:
fa) to preparegeneral regulationswhich shall permit the full
applicatiooftheprinciplessetforthinthepresentConvention and its annexed Statute, and to ensure their effective
application;
(b) to collect, evaluateand disseminateinformationon projects
prepared by MemberStates and to recommend plans for
comon projectsandjoint researchprogrammes inthe Chad
Basin;
fc) tokeepclosecontactbetweentheHighContractingPartieswith
a view toensuringthemostefficientutilizatioof thewatersof
theBasin;
(d) to followthe progressof theexecutionofsurveysandworks in
the ChadBasinas envisagedin thepresentConvention, and to
keep the Member Statesinformedat leasonce a yearthereon,
throughsysternaticandperiodic reportswhicheachState shall
submit toit;
(e) to draw up common rulesregardingnavigationandtransport;
(f) to drawup StaffRegulationsand to ensuretheirappiication;
(g) to examinecornplaint sndto prornotthesettlementofdisputes
andtheresolutionof differences;
fh) tosupervisethe implernentatinf theprovisionsof thepresent
StatuteandtheConvention to which itisannexed ".
f6.30 The LCBCconstitutes aninternationaolrganizatio(ArticleXVII(1)of theStatute)
and itsahs are essentiallythe achievementof CO-operationpursuitof the most
efficientutilizationthe watersof theLakeChadbasin.
26.31 The express powers of the LCBC do not include the resolutionof boundary
questions and the taking up of the business of demarcationresulted from
considerationsof security inthe region.
16.32 In 1983, disturbancesinthe regionof LakeChadgaverise tothe conveningof an
ExtraordinarySession ofthe LakeChadBasin Commission in Lagos ,rom 21 to 23 My. In thestatement ,lhajiBukarShaib,the Chairman of theCommission,
explainedtheposition. In his words:
"On thioccasion,ourmeetinghasbeen promptedby the recenevenrs
alongtheborderbetweenNigeriaandChadin theLakearea of the
basin. This matterhas ken the subjectof bi-lateralnegotiations
between the two Mernber Stateswhich, happily,have succeededin
restoringnormalcy and a returnto the situationexistingbeforethe
incidentsoccurred.owever, inorder tofinda lastingsolutito the
perennialproblemoftencausedbylongandundefinedbordersbetween
neighbouringStateno matterhowfriendly theirrelationship,nd in
thisparticulcase, onthe veryLake itselfwherethe bordersofour
fourStatesconverge,both Nigeriaand Chadrightly agreed thatthe
LakeChad Basin Commissionshould be the proper forum for
discussinga11the importantramificationsof the probiemand the
modalitiesofeffectithenecessarysolutiononce and foralnotonly
betweenthem butbetween a11thefourMember States.Weall know
thatundefinedbordersare abnomal situationswhich shouIdnot be
allowedto continue toexistfor too long as they createirritating
incidentswhichSourthe relationshipsetweenstatesand sometimes,
ifnot quicklyremedied,couldIeadto disastrousconçequences and
evenwar."
(NP0 88, pp.859-860.)
16.33 In theReportoftheExtraordin Sassyonthesamespeech was summarised invery
similarkms:
"In his opening address, the HonourableMinister seized the
oppomnity in welcorninghis febw Commissionersonce again to
Nigeriathisyear. Heexplainedthathe recenteventsaIongthe border
between NigeriaandChadin theLakeareamadetheconveningof an
urgentextmordinarymeeting necessary,even thoughnormalcyhad
alreadybeen restoredin tbearea throughthe bi-Iateralnegotiations
between thetwo sistestates.Nevertheless,itwas felt thatin order
tofinda lastingsolutiontotheborderproblems,rneasuresshouldbe
takento discussthe variousaspectsand madalitiesfor effectingthe
necessaq solutiontotheproblembetween al1the fourMemberStates
of the Commission. Forthatreason,it was rightlydecidedthatthe
Commissionitself shouldbe the proper forumfor discussingthe
probleminordertogivethenecessarypoliticaimandateandguidelines
tothenationalexpertforobtainingthe necessarydataandestablishing
thecommonframeworkwithinwhichthegeneralsecurityof theBasin areacan be sustainedandjointlyguaranteed by al1MemberStates."
(NP0 88, p.862)
16.34 The meetingdecided to establishtwosub-cornmitteeso,ne for the delimitationof
thebordersand the otherfor securitymatters.The Reportindicatesthe natureof
the agendain thefollowingpassages:
"After therecess, the meetingof expertsbegan, with Mr. N.O.
Popoola,the PermanenS tecretaryof the Ministryof WateResources
as Chaiman. As the two matters tobe discussed wereso closely
inter-relateditwas decided thatboth sub-cornittees shouIdmeet
together in the Conference Hal1 and discuss first the border
delimitationproblemsandlater the securitymatters.On theproposal
of theChairman andwiththe concurrenceof the Delegationspresent
the followingagendawereadoptedfor thetwo Cornmittees.
Agenda for the CornmirteeonDemarcution
1.Possibleexchange ofinformationanddocuments on theboundaries.
2. BoundariesCornittee programmeandworkmethodoiogy.
3.JointDemarcationTeam.
Agenda for the Cornmitteon Security
1. Measures forensuringtheeffectivenesof thejointBorder Patrols.
2. CompleteDemilitarizritionftheLakebytheMemberStates.
3. Measures toensurethenon-violation ofAgreementsreached.
4. Securityof theBoundaryDemarcation Team. "(NP0 88, p.864.)
16.35 The modalitiesof implementation of thedecisionstakenat Lagoswere discussed
at the twenty-eighth,twenty-ninandthirtiethsessionsof the LCBCin 1984and
1985.259 Ptogress had been slow, in part, because of problems relating to
funding.
259 SeeextracfrotheMinuteofthessessions,appearaNP0 89(28th)NP0 91 (29th)andNP61(35th)16.36 In 1985the FiftConferenceof theHeads of Statof theLCBC was held. The
Minutesof the FifthConference of Heads of State(NC-M 275)include,as
Annex B,the ReportoftheCurrentChahan, Dr. Ahji BukarShaib.
16.37 Under therubric"BorderDemarcation and SecurityonLake Chad", thiReport
pmvidesthe followinheipfuassessment:
"32. Followingthe borderincidentsbetweenNigeriaand Chadon
the LakeChad inApril1983 andthe ProtocolAgreemenbt etweethe
two countriein Julythesameyear,theCommission was calledinas
the forumthroughwhichtoeffeca permanenstettlemenoftheborder
problernsinthearea. Consequentlya,nextraordinarsessionof the
Commissionw , hichwasheldinLagosfrom 21st-23rdJuly,1983set
up twoSub-Commissions: oneonborderdemarcation and theother
on securiton Lake Chad.
33. From 12-16 November, 1984, the experts on border
demarcationand securiton hie Chadfrom thefourMember States
metinLagos andagreedon thebasiclegaldocumentsorfuturework.
34. TheSub-Commissioo nnborderdemarcationhasdmwn up the
techniclpecificatiosortheborderdemarcationaeriaphotography
andfieldrnappinthatneedtobecamied out. Inviewof thefactthat
theCommission cannotfundthefielwork,donor agencieshavebeen
contacted. Butno positiveresponsehasbeenreceivsofar.
35. On securitytheexpertsdefinedtheobjectives,composition,
logistics,disciplinebasesofthemixedpatrol#ans establisheby
theextraordinarsession. However,after two meetingin January
andFebniar y985inMaidugura indMaroua respectivel,heexperts
havenotken abletoagree on thedefinitiof thepatro?zoneover
whichthemixedpatrolteams wouldoperatewithieach country. The
expertshavebeendirectedbythe30thSessiotomeetagain toresolve
ihiissue."
16.38 ThisReport by the Chahan describestheLCBC as "the forumthrougwhich to
effectapermanent settlemenoftheborderproblemsin thearea",andformspart ofthe Minuteswhichwere formallyadoptedby theSixthConferenceof Headsof
Stateon28 ûctober 1987(NC-M 276).260
16.39 Inthe FinalCommuniqué oftheFifh Conference(Annex C to NC-M 275):
"TheHeadsof Stat notedwittsatisfactithe measuresbeing taken
bytheCommission to findpermanen tolutiontotheissuesof border
demarcatioanndsecurityon hice Chad,and tothiseffectinstnicted
ttiCeommissiontoinknsifyitsefforts."
16.40 Thedecisionstakenin 1987by theSixthConferenceof HeadsofStateincludedthe
decisionon "BorderDemarca itn",as follow:
"-bat member States have agreed to financethe cost of the
demarcationexercisewhichamounts to3 12,884,000FCFA.
- thatthe amountwouldbe sharedequailyamong thefourmember
States.
- thata specialbankaccountbe openedforthipsurpose.
- thaworkshould sm inMarch 1988."
(NC-M276 atp.19)
16.41
Thus the KBC founditself mandatedby the fourMemberStates, al1ripariansof
Lake Chad, toproceedwith thetechnicalprogrammeof demarcation.
(iii) TheSpecificationsPreparefor theTechnicalOperation
16.42 InMarch 1988a meetingof expertsofthe Member Stateof theLCBCmet "to
determinethetems of referencforthedemarcationandsuwey of theboundaries
260ThefultextotheminutesappeaiNP0 67 inLakeChad" (NC-M 277).TheGeneial CondirionsorInvitatiof intematiortal
Tender(NC-M 278)includ ehefoIlowing:
"Aaicle 2: Scow of Work
The knderer sMl execute the works mention4 hereakr in
conformitywiththeTechnicaSlpecificatios ttacheherewith
i) Reconnaissancaendphysicalmaxkingout oftheborderpoints;
ii) Placementof intemediatebeaconsbtween theborderpoints;
iii) Determinationof thegeographicacoordinatesofbothborder
and theintemediatepoints.
16.43 A separateinstrumentadoptedat zhisstagewas theTechnicalSpeciJicatiofor
Bounhry Demarcarionand Surveyin theLake Chad (NC-M 279). Thecontents
ofthisdocumentdeserve closeattentionbecaustheyrwealtheessentialnaturof
thetaskenvisaged,whichinvolv eIdmentsof evaluationwhicgo lâr beyondthe
nomal taskofdemarcation.
16.44 Chapter1 of theTechnicalSpecificat sioaksfor itselin this respect.It
providesasfollows:
"1.1 Al1 activitieon surveying,andborderdemarcation between
Cameroon ,iger,NigeriandChadin thehke Chad and ifs
çurroundingshall complywith thetems laid down inthese
specifications.1.2 Scom of the worktobe done
The area involvedcovers approxhately 61,000 km2and is
locatedbetweenthe followinggeographiloordinates:
A. Latitude14"303N B. Latitude14'30'N
Longitude13"ûû'E Longitude15"30E
Greenwich Greenwich
C. Latitude12"ûû'N D. Latitud12"ûûtN
Longitude 13"W'E Longitude15"00 '[sic]
Greenwich Greenwich
The Contractoshalicarryoutthefollowingassignmentç:
i) Reconnaissanceand physicalmarking out of 21 GPS
ControlPointsand7 majorborderpoints;
ii) Placemenof 62 intermediabacons betweentheborder
pointsatintervalof nomorethan 5 kilometers
iii) Determinationothe geographicalcoordinatesof both
borderand theintemediatepoints.
1.3 Documents to be aivento the ContractorbvtheLake Chad
BasinCommission
The LakeChadBasinCommission shailsupplytheContractor
with thefollowingdocumentsto enablehi tocarryout his
assigrnent:
i) A tableof existingsurveandconml points;
ii) Aeriaphotographsm, osaicsanmaps whereavailable; iii) Tex&anddocumentsdeaiingwithborderdemarcation in
theLakeChad:
a) Convention between Great Britain and France
respectinthe delimitatioof the Frontierbetween
Britishand FrenchPossessions eastof the Niger
(signedinLondon on 29 May 1906);
b) Convention confirming the boundary between
Cameroonand French Congo (signedinBerlinon 18
April1908);
c) Agreementbetween theUnitedKingdomand France
on thedelimitationoftheborderbetweenthe British
and Frenchpossessionseastof the Niger (signedin
London on 19 Febniar 1910);
d) Exchange ofnotesbetweenHisMajesty 'sGovernment
in theUnitedKingdom andthe FrenchGovernment
conceming theboundary betweenBritishandFrench
Cameroons (done inLondonon9 January1931);
e) Minutes of the meeting of 2 March1988between
Chadand Niger CO detemine theirbi-pointson the
LakeShore. "
16.45 Asthe Court wiIlreadilyappreciate,suchreferenctotreatyinstrumentsinthe
contextofa "demarcation "xerci indicatethattheexercisewasinrealityinthe
natureofa delimitation. Moreover,giventhechoicetobe madein relatiotothe
treaty instruments,evethedelimitationprocess involvedsome active legand
politicaldecisions.
16.46 In the event IGNFrance Internationalas awardedthe contract(Minutesofthe
Examination ofTenders,NC-M280). The contractJNC-M281) provided in part
as follows: iii) IndexcardsforlocatingboundarybeaconsandGeodeticpoints
on reproduciblmaterialsin ten copies;
iv) A lisof computationosftheCO-ordinat ef theGeodeticand
boundarypointsin tencopies;
v) Proceedin on the demarcation and monumentation of the
boundaries.
Article9: TheRole and Obligationof theContractor
TheContracto rhallensurethathework isexecutedunderthecontrol
of theeightexpertsandinconfomity withthe mles andstandardsin
force. He shallbe responsibltotheLake ChadBasin Commission
forthe appropriatexecutionofthework.
The Contractorshallunderiaketo mcommcethe workimmediaely
upon the notificationorderby the Commission. Moreoverheshall
furnishtheSupervisorwitha monthlyprogressreportin tencopies.
The Contracto haH alsoberesponsiblvis-à-visthLake ChadBasin
Commissionfor the qualityofthe materialusedand theirperfect
adaptiontotherequiremeno tf thwork".
16.47 ThiscontractbetweentheLCBCandIGNwasapprovedby the LCBC on 26 May
1988.
16.48 In August1988, a SpeciaSessionof theLCBC, prompted bya disagreemen tn
the location of the CameroodNigeriabi-point,decidtha the nationaexperts
shouldresolvetheproblemandprepare"concrete recommendations"T . he report
of the nationalexpertswho met in Septembe1988 notd the differentclaimsof
CameroonandNigeriawhichappeared tobethe resultotheRiverEbeji(El-Beid)
openinginttowocharnels asitapproachestheLake,and recommended thatapoint
(longitude14" 12'11.7"E,latitude12"32'17.4" N)obtainedby scalinfrom the
mapatîached tothe 1931treatybe adopteasthe mouthof RiverEbejiasat 1931.
Thisrecommendation wasendorsedby theCommissioners attheir36thSessionin December1988, atwhichmeetinga report was presentedwhichindicatedthatfour
majorpoints,includingthe southerntri-point,hadbeenmonumented (NP070).
(iv) The DemarcationExercise, 1988 to 1990
16.49 Thetechnicaloperationof demarcation was carrieout byIGN in theperiod1988
to 1990 and the resultwere reportedto theSeventhConference of the Headsof
Statein 1990.261 The relevantpartofthe Minutesof the Conferencerecordsthe
decisionof theHeadsof Stateasfollows:
"Decision No. 1 : Reworton the Boundary demarcation Exercise
Faithf tulthe principleand objectivesof the OAUand the U.N.
Charter;
Conscious of the traditionl ondsünitingthe riperian[sic]peopleof
LakeChad;
Firmlydeterminedto strengthenpeace andsecurityinthesub-region;
Consideringthat as at 12th Febniary, 1990, the ContractorIGN
France Internationalhad monumented 7 major points and 68
intermediarbyeacons;
Consideringthatafterexamining althedocumentsandthefieldwork,
the expertshaveacceptedthe work executed;
The Headsof Statedecided:
- io take note of the satisfactoryachievementothe International
Boundarydemarcation ExerciseforCameroon,Niger,Nigeriaand
Chad in the Lake and direct the Commissioners to get the
appropriatdeocumentsreadywithinthreemontfisandsignthern on
behalfof theirrespectivecountrie".
261 Anna NC-M 282 containstherelevanofthMinutriA.copyofthe fsetof Minuthasbeelodged
with the Court.16.50 The Headsof Stakhad receivetheReportoftheMarking-OutoftheInternational
Boundark snLake Chad adoptecatN'Djamena on14 Febmary 1990 (Annex5 to
theAdditionalApplication).he most relevantpartsthe Reportareas follows
(intheEnglishtranslatiprovidedbythe RegistryotheCouri):
"We the undersigned,
expertsfrom the MemberStates of the CBLTILCBCCameroon,
Niger,NigeriaandChad),duly designatedbyourState ts supervise
and monitor the work on the demarcationof our boundariesin
accordancewithresolutioNo. 2 adoptedbyourGovernment sttheir
SixthSummitMeetingheldinN'Djamena on28and 29 October1987.
On theonehand,
and IGN-France InternationalIGN-FI),holder of contractNo.
CBLWM02188, approvedon 26 May1988, forthedelimitatiof the
boundariesbetweenthe territoriesof Cameroon,Niger, Nigeand
Chad.
Onthe other,
haveproceededfrom 13 June1988 to12February1990, toeffectthe
delimitatiandrnarking- oothesaidboundariesandsubmit tothe
approvaioftherespectiveGovements the followingdescriptionof
the boundariesthwe markedout.
1.1 Naîure ofthework
The workconsistedofa faithfulreconstituo,ntheground, ofthe
indicatiodefiningthecourseof theinter-Stateboundariasgiven
intheagreements,treâties,exchangesof notes,conventandmaps
cumntly in force.
1.2 Courseofrheboundary
The boundary lineisdrawnas a straightlinfrom one beacon to
another,and markedouton the groundby majorbeacons linkedto
eachotherbyintermediatbeeaconserectedevery5kilometresorso. Sevenmajorbeaconshave been setupaithepoints definedinthetexts
and mapsin force.
Sixty-eight intemediate beacons have been strung out along the
traversfortraversesi-II, 1-VII,II-VandIII-VI,andfollothecurve
of the geographicalparallelfortraver1-IVandII-III.
Chapter W. Cameruon-NigeriaBounday in Lake Chad
Thissectionof theboundaryhasbeenreconstitutedinaccordancewith
the indicationsgivenin:
theExchange of NotesbetweenHis Majesty's Goverment in
(1)
theUnited Kingdom and the FrenchGovement, respecting
the boundarybetweenthe French and Britishzones of the
Mandated Territ ofryheCameroons effectedin hndon on
9 January1931.
the report of the meeting of experts relating to the
determinatioof theCO-ordinate osthe rnouthofthe El-Beid
(Ebedji)which was heldon 15 and 16 September 1988 in
N'Djamena, Chad. The co-ordinateof themouth ofthe El-
Beid(Ebedji)as definedby theexpertswere approved by the
nationalCommissioner sntheirresolutioNo.2 relatinto the
demarcationof theboundariesin LakeChad, duringthe36th
Session of the Lake Chad Basin Commission meeting in
Maroua, Cameroon, from1 to2 December 1988.
This sectionof theboundary,whichi61,700.36 metreslong,runsin
a straightIinebetweenmajorbeaconIi (tripoinCameroon-Nigeria-
Chad),type A, locateat longitud14" 04' 59"9999andlatitude13"
05'ûü"'1, and major beacon V (bipointCameroon-Nigeriaat the
mouthof El-Beidfor Ebedji)),type A, locatea& longitude14" 12'
1l"7005 and latitude 12" 32' 17" 4013, following the azimuth
186.4506gradobserved from major beacon II"
16.51 Itis significathathefirstofthepassagesquotedaboverefersto "thedelimitation
of the boundaries" and also "thedelimitationand marking-outof the said
boundaries". Of parkiculasignificanceis the definitiof the "natureof the work". The work thusconsistedof"afaithfulreconstituti,ntheground,of the
indicationdefiningthe course of the inter-Stateboundariesas given in the
agreementst,reaties,exchangof notes,conventionsandmapscurrentlyin force".
Those formulationsconfirm that the work involved both delimitationand
demarcation.Tfie aylsoindicatthatthework necessarilyinvolvdeecisionsofa
legalcharactecoricernirtheinkrpretatioand applicatiofvarious international
agreements.
(v) The Sequelto the DemarcationExercise
16.52 in November 1990,at their39thMeeting, theCommissioners resolv eda he
nationalexpertshould goback tothe fieltocornpietsomespecific jobs relating
to twointermediatbeacons (p.701 of NP0 74). In thecourseof thediscussions
of therelevantsubcommission,thepositionof the Nigeriandelegatasnrecorded
in the Minuteswasas foHows(atpage708 ofNP0 74):
"Forits part,thfourthdelegation,Le.thaof NIGERIA, considered
thattheprojectwasnotfu11ycompleted(thefailuretonumber beacon
II-111.substandardqualityofnumbering by LCBC,non-dernolition
of beaconII-V1 whichwaswronglyerected, non stabilizatiofGPS
and Azimuthstationon lines1-1andII-V and disappearanceoftwo
GPSstationsonIine 1-11].
In consequence,Nigeriarefuseto signtheReportof theexperton thebeaconing.
At a June 1991 meetingof experts,Nigeriarejectedthis resolutionof the 39th
Meeting(NC-M283).
16.53 In August 1991 at Yaoundé ,t thefirst meeting of Cameroonianand Nigerian
experton boundariesfnotan LCBC meeting),the Nigerianexpertsexplainthat
the delain signingthe"finaldocuments"on the demarcationof Lake Chadhad
beendue to certaintechnicalclarificatistill beingsough(NP0 52). At the second such meeting of experts in December 1991, the Nigerian delegation
mentioned the irrelevanceof the telegraph poles in Lake Chad, and itwas
recommended thatthe LCBCbe contacted toarrangeearlycompletionof certain
outstandingworkswhich"should notdelay the signingofthe demarcationreport
by theNigerianexperts"(NP0 54).
16.54 At a meetingof LCBCexpertsin January1992, Nigeriaindicatedthat itwas now
ready toimplementtheresolutionof the 39thMeeting and to sign the "report on
demarcation" (NP0 75). The Commission noted the intentionof the expertsto
implernen theresoluionbyJune 1992(page715of NP0 75). Atthe41 stSession
of theCommission in April1993 fseeextractsofMinutes atNC-M284), itwas
reportedthatthe expertshadgone back tothefield,finalizethetechnicalaspects
of thejobandal1signed thedemarcationdocument.However,becauseof adispute
regardi the locationof kacon VI on the ChadlCameroon boundary,the Chad
Commissioner statethathe was unableto endorsethataspectof thework,and as
a result of therebeina lack ofconsensus, itwas resolvedthat"thedocuments
regardi tnedemarcation exercise"besignedbytheExecutiveSecretaryandmade
availabltothe Commissionersforpresentation totheirGovernmentsso thatthe
issue couldbe finalisatthe nextSummit.
16.55 Atthe thirdjoint meetingof the nationexpertson boundaries,inAugust 1993,
theNigeriandelegationdeclaredthattheoutstandingworkshadbeen satisfaciorily
completedfNP0 55). However,thesouthernextremity comectingwiththeEbeji
Riverhadbeen referredto the twocountriesby the LCBC.
16.56 TheMinutesof the 41stSessionof theCommissioncontain the decisionto present
thedocuments"relatingto theborderdemarcation exercis te"the HeadsofState
andGovernent of theMember States"forafinaldecision"(NC-M 284, para.9û,
p.13).16.57 The Minutes of the Eighth Summit(NC-M285)262 of the Headsof Stateand
Governent (in 1994) record at p.13 Decision No. 5 concerning"Border
demarcation andsecurityin theMe Chadbasin area".
"Faithfutlothe principleand objectivesof the OAU and the United
NationsCharter;
Conscious of thetraditional ondsunitingtheriparianpeopleof the
LakeChad;
Fidy determined tostrengthenand guaranteepeaceandsecurity in
the sub-region;
Considering ht the physicalwork on borderdemarcation has been
fully completedand thetechnicaldocumentsigned by the national
expertsand theExecutiveSecretariat;
Considering the concern of the LCBC to emure the social and
economicdevelopment of thepopulationliving inthe conventional
basin;
Consideringthe growing insecurity situation in the Lake Chad
conventionabl asinarea;
Considering thestrongwillof member Statestoresol vhis persistent
problernof insecurityin thesub-region;
TheHeads ofStatedecided:
A. Boundarvdemarcation
- to approvethe echnical documenton the demarcationof the
internationabloundariesof memberStatesin the Lake Chad,as
endorsedby the nationalexpertsandthe ExecutiveSecretariatof
theLCBC.
- thateachcountryshouldadoptthedocumentinaccordance withits
nationallaws.
- tharthedocumentshould be signedlatestbythenextsumit of the
Commission.
262Annex NC-M285containstrelevantpartheMinutesThefulseofMinuteappearatAnnexNP0 77. - to instnic ttatellocal administratiof each countryto mount
socialmobilizationcampaigns toeducatethe localpopulationson
thedemarcation and theirrightand privilegeon theLake.
- congrahilated the Commissioners, the national experts, the
ExecutiveSecretariatandtheContractorIGN-Francefor a jobwell
done.
- toimmediatelysetup a joint securityforcewithcIearmandateas
wellaspoliticaand logisticsupport.
- thattheforceshouldhave astructurof leadershipthatis rotational
withdefinedmodeof contributioof human andmaterialresources.
- thatNigeriashouldprovide thevenueforexpertsmeeting to work
out thedetails ofthe nature ,aterialand equipmentrequired,
funding,size andappropriatlocationsof thunits"
16.58 Thisdecisionof theHeadsof Stateinvolv tesapprovaolf "thetechnicaldocument
on thedemarcationof theinternational oundarieof Member States",subjectto
the adoptionby each MemberState "in accordancewith its nationalaws" and
subject, furtheto signaturebythenextSummitof theCommission.
16.59 Duringthe NinthSümmit(theMinutes are atNC-M 286) on 30 to 31 October
1996, the Headsof StateandGovernrnenisadoptedas DecisionNo. 2 (p .1):
"Countrv Reportson the Adoption and Sinninnof Document on
BoundarvDemarcation"
Considering the item on adoptionof the document on boundary
demarcation;
Notingthe sensitivityof thissue in view of recentdevelopments;
Consideringthenecessityforpeaceandtranquility in the sub-region;
Noting theabsenceof theHeadsof Stateof CameroonandNigeria, The Headsof Statedecided:
- to deferdiscussionon theissue.
- to mandate thePresidentoftheSummitto interveneeitherthrough
consultationsr meeting withthetwo Headsof Stateof Cameroon
and Nigeria,tofind an amicablesolutionto theproblemin he
spiritof Africanbrotherhood".
jvi) Nigeriahad a discretionin the Matterof Acceptarice of theDecisionof the
Heads ofStatein 1994
16.61 TheNigerianGovernent hasnotseen fito giveapprovaItothetechnical outcorne
of the deiimitationldemarcatioexercise provisionallyadoptedin 1994. The
NigerianGovernent considerthatthe legapositionisthateachMember Stateof
the LCBChad a discretiointhe matterof acceptanceoftheprovisionaldecision
of theHeads of Siate.
16.62 In thiscontext the followingconsiderationsmilitatein favourof this conclusion.
In the firstplacthe votingprincipleoperatininthe LCBC isthatof unanimity,
as ArticleX of theStatuteprovides S.condly,at theNinthSummitin 1996 the
Heads of Stacepresent decided to defer any decisionon the adoptionof the
documents on boundarydemarcationin view ofthe absence of Cameroonand
Nigeria.
16.63 in passing it may be nokd thattheDecisionNo. 2 of 1996 indicatesthatthe
documents on "boundarydemarcationh "adnot asyetbeenadopted.
16.64 Fuaherconsiderationsalsobuttressthe Nigerianposition. The tasksofboundary
delimitatioanddemarcationdonot formpartofthenormalfunctionsof the LCBC and,consequently there isastrongpresumption thatunanimityisrequiredandan
equallystrongpresumption thata provisio decisionis subjecto aprocedureof
fiml andunanimousapprova .l
G. Conclusion
16.65 The reviewof the processof delimitatioin LakeChadcarried out inthe main
bodyof thisChaptercan onlyleadto theconclusionthathe workof the LCBCdid
notproduce aresultwhichwasfinalandlegallybindin on Nigeria. THEBASES OFNIGERIA'TITLETO
DARAKANDTHE OTHERLAKECHADVILLAGES:
HISTORICALCONSOLIDATIOAND ACQUIEXENCEA. htroduction: TheBasesof the Ni~erianTiüe
17.1 The threebasesoftheNigeriandaim totitloverDar& and theassociatedvillages
areas follows:
(1) long occupationby Nigeria and by Nigerian nationalsconstihitingan
historicalconsolidatof title;
(2) effectiveadministratby Nigeria,actingassovereign,andan absenceof
protest;and
(3) manifestatioof sovereigntyby Nigeriatogetherwith thacquiescencby
Cameroon inNigeriansovereigntoverDar&and theassociateLake Chad
villages.
17.2 Thesethree basesofclaim applyboth individuallyandjointly. in the view of the
NigerianGoverment each ofthebasesof titlewoulbe sufficieon its own.
17.3 The villaginLake Chadwhichare indisputebetweenNigeriaandCameroon are
asfollms:
Aisa Kura
Ba shakka
Chika'a
Darak
Darak Gana
Doron Liman
Doron Mallam
Dororoya
Fagge
GarinWanzam
Gorea Changi
GoreaGutun
Jribrillaram
Kafuram Kamunna
Kanumbu ir
Karakaya
Kasuram Mareya
KattiKime
Kim Wulgo
Koloram
Lugon Labi
Luko Naira
Mukdala
Murdas
Naga'a
Naira
Nimeri
NjiaBuniba
RarninDorinna
Sabon Tumbu
Sagir
Sokotorar.n
17.4 These villages have variouscharacteristicsin common, have a very similar
economy, and fom part of the Ngala Local Governent Area ("LGA")within
Borno State, whichcomprisesa partof the FederaiRepublicof Nigeria. The
administrativeentrefortheseislandsisDarak.
17.5 Whilstsomeof the villages ltotheWestorSouth of theprovisionaldemarcation
of LakeChadboundaries carriedout by IGN, most ofthevillages litothe East.
The legal devance of the IGN demarcation has been assessed in the previous
Chapter,and itis a basic premiseof the presentChaptethat titlethe named
villagesvestinNigeriaindependentlbothofthepresent statuof thedemarcation
as such, andof the incidenceof theprovisionalalignment.
17.6 in this genercontexi iisto be recalledthatwhentheoperationof the principie
ofutipossidetis producesno decisiveoutcornetheconductof the partiesis "of
particulaimportance"a,s theChamberoftheCourtpointed outin theLand,Island and Maritime Disputecase.'" As the NigerianGovernent hashadoccasion to
pointout alreadythe Chamber in severasignificanpassagesplacesemphasison
thequalifyingroleofacquiescence ndrecognitioinrelationtotheprinciplofuti
possideii.="
17.7 The villagesinthe grouparelocatedon islands,or formerislandson the bedof
LakeChad - seeChapters13 and 14. The datesof foundationof themajorityof
thevillagesareas follows:
KattiKime
Sagir
Fagge
GoreaChangi
Chikata
Dororoya
Garin Wanzam
KirtaWulgo
Darak
GoreaGutun
Kamuma
Mukdala
Naira
RaminDorinna
DoronLiman
Koloram
Nimeri
JribriIlaram
Naga'a
Kafuram
SabonTumbu
DarakGana
DomnMallam
Murdas
17.8 Itthusemergesthat,out of thesenineteenvillages, the longest existing village
(KattiKime)wasfoundedfortyyears agoandthe newestsetdernent(Murdas)was
263
I.C.J.Reportr,1page565para.345
SeeChapkrIOparas. 1erseq. establishthirteenyeaago. The majorityothesevillageshavebeen inexistence
forbetweentwentyandfortyyears.
17.9 Thesearenotinsignificmtsettlements,a1thoughsornea Trherelativelysmall.
sizesofthetotalpopulatiofthemajorityofthesevillageareas follows:
Darak
Jribrillaram
Kim Wulgo
Koloram
Naga'a
KattiKime
Chika'a
SabonTumbu
GarinWanzam
DoronLiman
GoreaChangi
Fagge
GoreaGutun
RarninDorinna
Sagir
DoronMallam
DarakGana
Kafuram
Murdas
Nimeri
Kamuma
Mukdala
Naira
Dororoya
17.10
The activitiesof the fishemen and farmerswho foundedthese communweres
open andpeaceful, and the processof administratby Ngala L.G.A., which
followedthe proceof settlement,wasequallyopenandpeaceful.
17.11 At no stagepriotothepresentproceedingsbeforethe Courtdid the Governent
of Cameroonmakeanyreservationor protest.17.12 The Governent of Camermnbegan the presenproceedin b yan Application
filedon 29 March 1994. ThisApplicationdefinedthe"subjectofthe dispute"as
follow:
"1. The disputerelatesessentiallytthequestionof sovereignty
overtheBakassiPeninsula ,territoryof approximatey65 sq
km Iying between Cross River and the Rio del Fky, the
Republic ofCameroon'sritle to which is contestedby the
FederaIRepublicof Nigeria.In so doing,theGovernent of
the Republic of Nigeria is contestinthe long-established
frontierbetweenthetwocountries.
2. Sincethe endof 1993, thicontestatiohastaken theformof
an agression bytheFeder alpublicofNigeria,whosetroops
are occupyin sgveralCameroonianlocalitiesin the Bakassi
Peninsul Ta.ishasresukd in greatprejudicto thkpublic
of Cameroon,forwhich theCourtis respectfullyrequestto
orderreparaion.
3. Moreover, the maritimeboundarybetweenthe two Stateshas
been thesubjectof severaldelimitationagreement,romthe
Agreement of Il March1913 to thMaroua Declaratioof i
June1975. However, thisdelimitatiohasremained a partial
one and,despitemanyattemptsto complete itthe twoparties
have ken unable todo so. In ordeto avoidfurtherincidents
betweenthe twocountries,the Republicof Cameroonrequests
the Courtto detemine the courseof themaritimeboundary
between thetwo Statebeyoridthelinefixedin 1975"
17.3 Consequentlyt,heris noreferencto anyissuesrelatinto theLakeChad reion.
Thefirstreferencetothe Lake Chadregion occurs inChe Cameroonian Note to
Nigeriadated1I April1994 (NC-M287) whichreadsfinmaterialpart)as follows:
"TheMinistryof ExternalRelationsof the Republicof Cameroon
presentsitscomplimentsto the Embassyof the FederalRepublicof
Nigeriain Yaoundé ,ndhas the honourto dmw theattentionof the
Embassy to the foliowing.
Nigerian mtionalshaveoccupiedtheCameroonian Iocalityknown as
Koritcha (Faroand Deo Division) in theAdamaoua Provinceof
Cameroon. The Cameroonianauthoritieshave observedthat in the past, Nigerianmilitaryoccupationof Cameroonianterritorygenerally
followedthe illegaloccupationof partsof her ierritoby Nigerian
citizens. TheNigerianmilitaryoccupationofDarak andparisof the
BakassiPeninsula arecasesin point." (emphasisadded)
17.14 The issuewas then bken up in the Additional Applicationintroducedby the
Government of Cameroonon 6 June 1994, whichrefersfin paragraphIl) to the
"newdispute". Znthis instrumentthe Governent of Cameroondescribesthe
"subjectofthedispute"as follows:
"1. Thisaspectof thedisputerelatesessentiallytthequestionof
sovereigntyovera partof theterritoryof Cameroointhearea
of LakeChad - locatedbetweentheCameroon-Nigerif arontier
and the Cameroon-Chad frontierand extendingto aroundthe
middleof theremaining waters- theRepublicof Cameroan's
title to whiiscontestedby the Federalkpublic of Nigeria;
and tothe course of the boundarybetweenthe Republicof
Cameroon and the FederalRepublic of Nigeria,from Lake
Chad tothe sea. By its action,the governmentof theFederal
Republic of Nigeria is once again contesting the long-
establishedfrontierbetween thetwo countries, which has
recentlybeendefinedin amultilateralontext.
That contestation inirially took the form of a massive
introductionof Nigerian nationalsinrothe disputed area,
folluwed by an introductionof Nigerian security forces,
efFectedprior to the officistatement of its daim by the
Government of theFederalRepublicof Nigeriaquiterecemly,
forthe firsttime, ina Note dated 14 April 1994. Itis a
decisionon the title tthatterritoryand sovereigntyoverit
thattheCourtis respectfulrequestedtogive atthesametime
as itçdecision on the requestssubmittedby the Republicof
Carneroonin its initialApplicationdated29 Marc1994."
(emphasisadded)
17.15 The evidence availableshows that theNigerian villages have, in greatepart,
existedforperiodsofbetween20 and 40 years. The terrainiflatand open and
the activitieinthe Nigerian villages.have been public and unconcealed.The
Cameroonian AdditionalApplication referto"amassiveintroduction of Nigerian nationalsintthe disputearea".The conclusionwhichnecessarilypresentsitself
is thattheGovernent of Cameroonhad for decadesmaintaineda silencein face
of thelongestablishedNigerianpresence.
B. HistoricalConsolidationof Title: TheLe~d Conce~t
17.16 The elementsof the legaconcept of historicalcomolidatiooftitlehavebeen
elaborateduponearlierinChapter10, paragraphs10.21 to 10.24.
C. The S~ecificComponents of the HistoricalConsolidatiof NiperianTltle
The Attitudeand Affiliationsofthe Populationof Darakandthe otherLake
(i)
ChadViIIages
17.17 Thelegalrelevanceof theattitudeandaffiliatiof thepopulationinthe territory
in question has been canvassed already in Chapter 10 of the present
Couriter-Mernorialaragraphs10.2t 7o10.30. The inhabitantsf thesevillages
regardthemselves as Nigerians. The contemporaneou sotes which recorded
interviewwith the bidmnas (headmen)of the villagesin May 1998 show the
significantsense of allegiatoNigeria by the people othe area. These are
includedas an AppendixtothisChapter.
17.18 Eventhoseresidentswhoarenot NigeriansbyoriginacceptNigerianauthorityand
paycommunitytaxto Nigeriawithoutcornplaint,as can be seen theinterviews
wittthe Bulamas ofDoronLiman, KattiKime,Darak,Kafuram,Sagirand Kim
Wulgo. Reflectingthe allegianceofthepopulation,thebulamasof the villages
recogniseNigerianauthority.17.19 The majorityof the residentscorfrom Nigeriantribes,owhich theKanuriand
Hausa fom themajorcomponents.
(ii)Hidorical Associations
17.20 Thehistoryof thisareahasbeen describedindetaiinChapter12 of this Counrer-
Mernorial. The Emirateof Borno tracesitshistorybacto 1386, whena Kanuri
branchof theKanemempire broke awayand moved to theareato the Southand
Westof Lake Chad. This administration had an organisedpoliticaand social
stnicture,whichenabledit to becomebothpowerfulandsuccessful.
By 1800, the previouslygreatempireof Kanernhaddwindledin staturandhad
becorne a provinc of the EmirateofBomu, the confinesof which stretchedail
aroundLakeChad. Duringthe firsthalf ofthe nineteentcentury,asa resultof
stniggleandwarswith theneighbourF inlaniempireto theWestof Borno,the
Kanuri and Fulani peoples became inter-ming1ed.The Emirateof Bornustill
remainedas an independententity,howeverand preservedits traditionalKanuri
systemof organisatiowiththeShehuas iîspoliticalleadeThe strongallegiance
ofthepeopleof thisareahasalwaysbeen, andstilremains,totheShehu.
17.22 Thissysternof traditiorulewas preservedduringthebriefadministrationof the
French,and then underthe British, who iritroducadsystem of indirectrule,
wherebythe Shehuretainedmost of his powersand authority,albeit undethe
protectioofthe BritishEmpire. EventheGemans, who setup a rivaEmirate,
Dikwa, in1902, preservedthe systemof traditionilersandappointeda Shehu
of Dikwa. This Emiratebecamea sub-divisionof Born after1916, whenBritain
tookoveradministratioof Dikwa.
17.23 The area,includi tnegwatersof LakeChad, has beenwithinthe realmand rule
of the Emirateof Born for a periodof over500 years üntil tharrivaof the17.29 Since Independen che traditionalrulershave had an importantrole in the
constitutioofthecountry,inadministration m, aintainipeaceandcivilorder,and
the collectionof taxes.Under recentconstitutionalchange, this role habeen
reduced, but nonethelessthe= is stirelianceon the Shehuand the traditional
mlers forthe administratioof thepeopleof thisareaand the collectionof their
taxes,andtheallegianceof thelocalpeopleis stillprimarilto theShehu.
(iv) Acts of Administrationby the Federal Government of Nigeria and by Borno
State
fa) The EvidentialSources
17.30 A majorcomponentin the processof historicalconsolidationis the evidence of
peacefulpossessionandadministrationc,onsistingoactsinvolvin"a manifestation
of sovereignty in respectof the LakeChadvillages (cfMinquiersandEcrehos
case265),r "actsof sucha characterthattheycan be considereda manifestation
ofStateauthority"inrespectof thevillages.266
17.31 Inthe Judgmentofthe C hamberintheLund, Islan add MaritimeFrontierDispute
case, there is repeated reference to the requirement of "effective
administration"67
17.32 ThevarioustypesofevidenceofadministrationbyNigeriawillbereviewedin~e
sectionsfollowing.
265I.C.J.Repor1953,pp. 58-59
266ibidp71
267I.C.J.Reports,1992, [email protected]) fb) TheMaintenance ofPublic Order
The contemporaneou sotes(intheAppendix tothisChapter)showthat thepolice
17.33
stationin Darakwasestablishedby the FederalGovernment. In additioto this,
there isanarmy unit stationein Darak(thoughit appearsnot tobe permanent).
There isalsoa policestatioatKirtaWulgo.
17.34 Therehave, inthepast,been anumberofoccasionswhenamed banditsfromother
countries, in particularfrom Chad, have haïassetdheNigerianfishermen and
villagers,extortingrnoneand,in one or twocases,committingmoreserious acts
of atrocity.Itis usuallythecasethatthesmall policeunitstationeon Darakis
under-equipped todealwithsuch a seriousituation. Thereforethe Chaiman of
NgalaLGA is contacteand he requestsassistancefromtheMilitaryMministrator
ofBorno State.TheMilitaryAdministratomrobiliseuni& fromthe21 stArmoured
Brigadeofthe NigerianAmy, whichis basedatMaiduguri.These are sentto the
areato act apeacekeepers,and prokct the villagersanfishermen from further
attacor harassrnent.
(c) Taxation
17.35 TheLakeChadvillages al1paycommunity tax(Harajz)toNgalaLocalGovernent
Area inBorno State. An extractfromthe Cash Book recordingreceiptsfor 1991
is at NC-M288. Examplesof Community Tax Receipts for 1991 are at
NC-M 289. These recordsrelate tothe followingvillages;
Chika'a
Dar&
Dororoya
Fagge
Gain Wanzam
GoreaGutun
Kafuram KattiKime
KirtaWulgo
Mukdala
Murdas
Naga'a
NjiaBuniba
Ramin Dorima
Sagir
17.36 The contemporaneousnotes show tha tattltax is paid bthe residentsof the
villageto theBornoStateauthorities.
17.37
The residentalsopayan educationlevy. Extractsfromthe EducatioCashBook
and Receiptsfor1991 areatNC-M290. Theyrelate tothefollowingvillages:
Chika'a
Darak
Kafuram
Kamuma
Kasuram Mareya
KattiKime
KirtaWulgo
Naira
17.38 Thereis an additionalfeatureof the situationwhichis of considerableirnpoaance.
At no time have the residenof these villages paitaxesof any kind tothe
authoritieinCameroon.
(d) HouseAssessrnent
17.39 The purchaseof a local govemnt guesthouse at Darak was precededby a
processofassessmentby a cornittee organised (in1995) by the NgalaLocal
GovernmentCouncil ofBorno State.The relevantdocumentisat NC-M 291. (e) Census Taking
17.40 The NigerianNationalCensusheld a censusin 1973 and 1991. Darakandthe
othervillages ithisareawere enumerated as partof WulgoEnurnerationArea.
The resultsofthe 1991censusare at NC-M 292. These includereturnsforthe
followingvillages;
Chikata
Darak
Darak Gana
Dororoya
GarinWamm
Iribrillaram
Kafuram
Kamurina
KattiKime
Kim Wulgo
Murdas
Naga'a
Nimeri
fimin Dorinna
SabonTumbu.
ff) Development Administration
17.41 The Ngala Local Govenunent Authority of Borno State has either provided
assistanctothevillagesor hasinfomed the villagecommunitithatassistanceis
available,fexample,for the constructiof wells.
17.42
DeveIopment assistancehaken providedto thfollowingvillages:
Naga'a - aschool,a clinic, a cernentweH,andprovision
of fertilizerapesticides. GoreaChangi - constructioof awell.
Darak - mobileservices,includi ancinic,provisionof
dnigs, provisionof fertili andrpesticides,
construction of a well, provision of nets,
maintenance of navigabilityof waterway to
Katti Kime, assistance in times of flood
damage.
Nimeri - provisionof fishingnetsandfishingequipment.
KirtaWlgo - a clinicanda school.
17.43 In 1997theNgalaLocalGovernent made a grantfortheimprovemeno tf theroad
leadingtotheKattiKimeIDarak area(NC-M293).
(g) TheA~~ointrneno tf VillaHeadmen
17.44 Theappointment of thevillagheadman (bulama)wastraditionalwithintheremit
of authorityof the ShehuoBorno. Morerecently,althoughitremainspartof the
functionof theShehuor Lawan,the MilitaryAdministratorof Borno Statehas to
give finalapprovaand he can appointand dismissa bulama asappropriate(see
NC-M 294). Salaries of headmen are paid by the relevantlocal governent
authority.17.45 The NgalaM GovenunenAt uthorihas establishprimaryschoolinChika'a,
Naga'a,Darak,and KirtaWiilgo, Themidents of Kafum attend theschoolin
KirtaWulgo.
fi) ProvisionoPublicHealth
17.46 The NgalaLaai Governent Authorityand Borno Shte havecreat edsystemof
healtcareintheLake Chad viUagesinvolvion-sitprovisioofGareand various
formsofpreventivemedicine.Naga' andKirtaWulgohavetheir own ciinics.
17.47 Mobileclinicarepmvidedfor thevillagesoChika'aand De. The midents
ofKafuram attentheciinicaKim Wulgo.The MinistrofHealthMobileClinic
reportmonthly totheDktor-Geneml, Ministryof Health,MaiduguriThus in
a lettedated13 July 1988 it statethat"themobile chic leftMaiduguroin
4 Juri1988 to Ngda Local Govenunent Am to the foiiowingvillages: Dom
Kirta, Kuta Wulg..Darak". Thenurnberosfpeoplewithmeaslesandwhcuping
coughinDai& arelisted WC-M 295).
17.48 ThePrimaq HealthCare Departmen t fNgalaLoca lovernent Area pmides
a systemofdiseas centmlandpreventivemedicinein the villageThe Hdth
Postat Darakwas the site oone ofseveradispensarieprovidedby the Ngala
LGA(NC-M 29G2''andNC-M297).
17.49 Reportsofoutbreaksofmeaslesandwhoopingcough atDarakwere~sponded to
by appropriatactiononthe partofthe authoritiinMaiduguri (NC-M 298 to
268Transcriptiothemanuscnpdocumencontainid inandfilUowiAnnexehave beenmade witb
spellincotrecbd. NC-M302). RequisitionsweredüIy made forthepmision of dmgsandhealth
assistance.InNovember1994 asituationreportrefertoanoutbreakof cholem
intheviUagesof Darak,Chh'a, Naga'a andSagir(NC-M 303).
17.50 Casesof vomithgand diarrhoeinthevillagesweretreatas aresultoactionby
theDiseaseControlUnitof NgalaL.G.A. (NC-M 304). A detailereport,dated
22 November1994,relatestothe situatiin Chika'aDoron Liman, Fagge,and
Darak WC-M 305). Laterreportsconcernthe situatiin Chh'a, Domraya,
Naga'a,andDarak(NC-M306 andNC-M 307).
17.51 TheFhblicHdth CareDepartment of NgalaLGAalsooperates aprogrammefor
thepreventioof epidemicdisease,iconjunctionwiththeMinistryofHealthof
Borno State(NC-M 308 toNC-M 310). Theprogramme includesanongoing
vaccinatioexercis(NC-M311) and a programmeof surveillancofinfectious
diseases.
17.52 Darakwas thesiteofthe Disease ControlUnisetup in 1996 tocape withan
outbreakofgastro-enteris C-M 3 12).
17.53 Tfiereia lettedated24November 1992 fromKirta Wiilghealthclinictotheco-
ordiinaiorofthe Hdth CareDepartmentof NgalaLocalGoverment concerning
flooddisasters. Themanuscritoteonthefollowingpagesays"tkactiononpipe
lineifor thoseintheDarrackareasforassistance(NC-M 313).
17.54 A letterdated27 Novernber1992 from the Ngala ha1 Gwemment Primary
HeaIthDepartment isheaded"SituatioReportonPld DisasterinDarrak". It
appem thatthere wasan outbreakof diseaseaftarfloodinDarak. In fact, 15
peoplewereinjuredwhenninning fmm fastflowingwater(NC-M 314).
17.55 The= is a letterdated3 August 1993 fmm Katti Kime PnmaryHealth Care
Departmentof Ngda LocalGovernent authontytotheCO-ordinatofrrhealthcare reportingon theoutbreakof measles. Itlis&themes and agesof childrenwith
measlesin KattiKime(NC-M 315).
17.56 Thereis a letterdated25 August 1996 fromDarrakVillage unit tothe District
Head of NgalaL.G.A. concerning theoutbreakof cholerain Chika'aandNaga'a
and requestinghelp. This isfolIowedby handwrittencorrespondencewithinthe
Local Governmeno tffice(NC-M316).
0) Environmenta Slanitation
17.57 TheMsdicalandHealtfiDepartmentoftheNgalaL.G.A.hassince1977(atIeast)
been concerned wiih environmenta lanitationinthe villages (NC-M317).In
particula, easureshavebeentaken tointroducewatersanitatioandtreatmentin
Darak (NC-M 318).
fk) GeneralPowersof Administration
17.58 A lettedaml 1 Juiy1996 from the Departmentof StateServicesof Ngala Local
Government Authority€0the Chaiman States:
"Althoughthe policeandthis servicehavejointlyintensifiedefftot
frustrateandor prevencfurtheruse of the 'dumba'on the shoresof
LakeChadwhichfa11withinNigerianterritorialwaters,the situation
is still pregnantwithconfus....ThePolicehadon 18thJune1996
inviiedandchargedtheduoofthe HausacommunityleaderinDamk,
one Mohammed DanLansuandtheSecretaryGeneralof thesucalled
faceless DarrakmultipurposeCO-operativseociety, Ali Mohammed,
and itcontinuedeffortsto stop completelytheuse of dumbaof the
shoresof LakeChad"(NC-M 319)17.59 A lettedated2 Octokr 1996 fromtheAdministratio nepartmen to theChairman
of the LocalGovement Authority states:
"1wish towrite and refeto the abovesubjectmatter [Requestfor
TransporatndFuel SecurityPurposes atLakeChad]andrequestfor
transportandfuel to enablethe LocalGovernmenStecuritySecretary,
the village head of Darrak,the Council representingWulgolTuno
Kaliaand a member oftheSSS on a factfindinmissionona matter
relatinto thesecurityof the Local Govement." (NC-M 320)
17.60 A letterdated7 March 1997 fromBomo State toNgalaLocalGovernmenC t ouncil
states:
"Report onLawan ofDarrak.
I havebeen directed to requestyou to infom the village head of
Darrak tosee theMilitaryAdministratohroughtheDirectorGeneral,
CounciIAffairs...on Monday10thMarch 1997."
and thereisa letterdated7 March1997 fromNgalaLocal Govement to the
villaghead ofDarak requestingthesame (NC-M321).
17.61 There is written correspondencewithin Ngala Local Council concerningthe
demolishingof the dumbafish trapsbythe Nigerianamy. This was done in the
Darakareaandthe amy stayedinDarakduringthe operation(NC-M 322).
17.62 Aletterdated 18September1996fromNgalaLocalGovermentCounciltothe
districtheadof Ngalstates:
"1am directedtowrite..andinformyouof theearlierdecisionof the
SecurityCornittee Membersto removeBulamaDanLantso,Bulama
of Darrak"(NC-M 323). (1) Licensinnand Remlation ofFishing
17.63 The contemporaneous notes revealthatNgala LGA licensesfishingin the area,
includi tngvillages. BoththeBornoStak Governent andNgalaLGAprovide
fishingnets andequipment.InthiscontextNgalaLGAsupervisesandregulates the
fisheriesIn CO-operationiththepolice,measuresaretakento deteandterminate
the useofinappropriatfishingrnethodand,inparticularthe illegaluseofdurnba
(fishingbarriers).
17.64 As a partof this poIicyNgalLGA hascreated(in1995)the Dumba Demolishing
Commitiee (NC-M 324). ThesemeasuresprovokedIegalaction, or ai leastthe
threatof legalproceedings,bythe DarakCo-operativeMultipurposeSocietyLtd
(NC-M 325). Itistobe notedthattheproceedingsenvisagedwould have beenin
the Nigerialegalsystem.
17-65 In January1996the same legalrepresentativsetitionedthe MilitaryGovemorof
Borno Stakon the sainesubject(NC-M326).
(m)TheReeulation of Trading
17.66 TheNgala locaauthorityhasthe power toregulatetradingwhenit deems thi o
be neceçsar yhus ina letcerdakd 14May1992 regarding DarakPatentVendors
NgalaLocal GovernmenC t ouncistate"thattheLocalGovernmenh tavea notice
of patentvendor'sservingin Darak. Theyare totalingtoaboutTwelve,and we
haddirectedtheearlythisyearto go andget theiStateLicenceandtheywereon
the process"(NC-M 327). (n) Registratioof Electors
17.67 A substantial roportionof thepopulationin theLakeChadvillagesare registered
as electorsfothepurposesof Nigerianlegislation.Therisno evidencethatthe
inhabitantvoteinCameroonian elections.
17.68 In the NigerianLocalGovernment Electionsin both 1988 and 1989, Dar& and
Wulgoconstitutedan electoralward. BukarTorobewaselected as counciIloto
representthewardin the Ngala Local GovernmentCouncil. His Certificateof
ElectionisatNC-M 328.
17.69 In the 1993 Local Governent Election, Mohammed Lawan was electedas
councillorfortheward. In the 1996and 1997 LocalGovernent Election,Jidda
KhursoMohammedwaselected ascouncillor. His Certificateof Electionis also
at NC-M328.
17.70 In the 1997198Local GovernmentElections, MohammedZainami was elected
councillor. For the1998 election, Darakwas made a separateelectoralward.
Mohammed Zainami was re-electedas councillor.
(v) Conclusion : the ElementsofHistoricalConsolidation
17.71 Thevariouselementsconstitutingtheprocesofhistoricalconsolidationof titlecan
nowbe summarised:
First: The attitudeandaffiliatiof thepopulationof the hke Chadvillages
indicateanexclusiveassociationwiththeBomo Statof Nigeria.
Second: Thehistoricaassociationoftheregion constitustrongevidenceof the
gravitationalpullingeopolitical and economic terms, othe Borno Emirate (anditssuccessors)inrelationto tshores of Me Chadand,
more especiallythesouthenisector.
Third: The historicalassociationsof the area in quesarenreinforcd and
cornplernentedby thecontemporary politicalpowerand constitutional
statusof the Nigeriantraditionilersand, in the regionconcemed, of
His RoyalHighness,the Shehu ofBorno.
Fourth: TheLakeChadvillageshavebeenadininisterea dspartof Nigeriafora
considerableperiodof tirne.
17.72 To theseelementsinthe processof historicalconsolidatthesignificaelement
of Cameroonianacquiescencemust be added. This will be examid in the
followhg section.
D. The Acauiescenceof Cameroonin faceof the Raceful Exerciseof Sovereientv by
Ni~eria
(i) The kgal &tevanceof Acquiescence
17.73 Acquiescenceconstitutesa majorelementintheprocessofhistoricalconso~idation
of titleInconsequence thefirstbut byno means theoniy,roleof acquiescence,
is playedalongsidetheotheelementsof historicalconsolidatreviewedabove.
17.74 The second, andindependent , ieofacquiescenceis thatoconfirminga titlon
the basisofthe peacefuIpossessionoftheterriti ordyisputethatisto say,the
effectiveadministratiof the LakeChadvillagesby Nigeria,actingas sovereign,
togetherwithanabsenceof proteston thepartof Cameroon.In thisconnectioa
passage from the Judgmentof the Chamber inthe Land, Island andMaritirne
Fronri Disputeprovidesa generalparadigr(seeChapter10, para.10.124).17.75 In the thirdplace, acquiescencemaybe characterisedasthe maincomponentof
title, that is, providingtessence and very foundation of titlratherthan a
confirmation ofa titleIogicallyanteriortoand independent of the processof
acquiescence.Therecanbeno doubt thatinappropriatceonditiona tribunalan
properlyrecognisea titlebasedupon taciconsentor acquiescence.
17.76 The independent roleof acquiescencas asource of title is acknowledin many
passages intheJudgment of theChamber in theCase Concerning theLand,Island
and Maritime FrontieDispute .69 The pertinentpassagesincludethe following
paras., 67, 80, 81, 169, 176, 280, 284, 34345, 3M and 368. The following
passageexpressestheroleof tacitconsentwithclarity:
"TheChamberconsidersthat thisprotestof Hondurasc, orningafter
a long historyofacts of sovereigntybyEl SaIvadorin Meanguera,
wasmade too Iatetoaffectthepresumption of acquiescenceon the
part of Honduras. The conduct of Honduras,vis-à-vis eariier
&ectivités revealan admission,recognition,acquiescenceor other
form oftacitconsentto thesituationFurthemoreH , ondurahsaslaid
beforetheChamber a buky and impressiveIistof materialrelion
io show Honduranefectivir telstingto thewhole of ihe area in
litigation,butfailsthatmateriato advaricanyproofof itspresence
on theislandof Meanguera "270
17.77 It rnayalso lx recalledthatthe Chamber inthe Case Concerningthe Frontier
Dispute (BurkinaFaso/Republic of Mali) acceptedthatacquiescence,if proved,
would be conclusiveof themain issue.In thewordsof the Chamber:
"The Partieshave expounded at length the origins of the frontier
disputewhichis presentlybefore the Chamber. Sincehowever the
line of the frontierhto be definedasit existedin the years1959-
1960, and the Partiesagree that no legal validityattachto any
subsequentactsof administrationhichmayhave been perfomedby
eitherof them on'theterritoryof the othea,reviewof the frontier
269I.C.J.Reports,1992351
I.C.JRepom,1992,p. 577,pa364 incidentsand the efforts madto bringthe disputeto an end would
Nevertheless,oneBurkinabe argumentwarrants
hardlybe pertinent.
particularattention.This argument isbasedon the conductof the
MalianGovernent duringthe negotiaiionswhichled to agreements
king concludedforthedelimitation of the9ûû or 1,022kilometresof
frontierwhich are no longer indispute,andon thatGoverment's
attitude towardsthe work of a MediationCommission of the
Organizationof AfricanUnity which sat in 1975. Accordin tg
BurkinaFaso,Mali accepted asbinding the solutionto thedispute
outlinedbythatCommission.Sincethis argumenftrumacquiescence
would, ifcorrect,make itunnacessary tu endeavour toestablishthe
frontier inheritedfrom the colonialperiodshouldbe dealt wirhat
the outseas aprelimimv question"''lfemphasisadded)
(ii)TheLegal Position
17.78 Thelegalposition of Nigeriacanbe summarised as follows:
(1) For varying periodsbetween20 and 40 years induration,Nigeria hashad
peaceful possessionof the Lake Chad villages, whichwere atal1times
administeredas partof theBorno Stateof Nigeria.
(2) At no stageprior to theseproceedingsdid Cameroonmakeany protestor
claimrelatingto theMe Chadvillagespresentlyin issue.
(3) At no stagehas Cameroonhad a syste rnadministrationin place in the
region.
(4) Theepisodeof Cameroonianinterferencein 1987 wasshort-livedand didno&
leadto anydaim to theregion on thepartof Carneroon. At no stagehas
Cameroon exercisedpeacefulpossession.
271 I.C.3. Reports,p.570, para.3417.79 Theevidenceof Nigerianpeacefulpossessionhad been reviewedextensivelin the
previoussectionof the presentChapter.The Cameroonian incursionof 1987 was
not only late ithedaybutdoes not appeartohavebeena titre de souverain. In
anyevent iwasresisted andtheCameroonauthoritiesdid mt persist.
17.80 The intewiewswithlocaIchiefsshowageneralabsenceofÇameroonianactivity.
On only two occasionsdid avillageheadmanmakeany referencetointerference
by gendarmesfrom Cameroon, inMukdalaand Kafuram.In thesetwo interviews
theheadmensaidthatthe gendarmes wereinfomed that the villagewas Nigerian,
after which the Camerooniansleft. In al1the otherinterviewsnoreferencwas
made toCameroonian visitof anykind.
17.81 Thetreatment of thedisputeintheCameroonian Mernorialis revealinin several
significantrespectsee pages 587-90, paras.6.81-6.89. Inthe firstplace,no
informationis givenrelatito anyCarneroonian presenceor administratiointhe
regioneither in 1987or beforeor after1987. No documents arecited andno
administrativactsarereferredto.
17.82 Thekeyevidenceof Carneroonianacquiescence lies ithe silencof Cameroon
priorto the Cameroonian Note toNigeriadakd 11 April 1994 (see above,para.
17.13). Subsequentlythe issue was taken up in the Additional Application
introducedbythe Governent of Cameroon. Thisrefers(inpara. 11) tothe"new
disput".
17.83 This "new dispute"was not referred to in the original Application filed on
29 March 1994.
17.84 This picture is confimed by the content of the CameroonianMernorial. The
relevantpassageisas follows: "La Républiqud eu Cameroun a adresséde nombreuses protestations
au gouvernemend te Lagos. Celles-cisont jusqu'à ce jour restées
sanseffet. A titred'exemple,la notede protestatiodu 21 avril1994
concernela villede Darak,qui estsituée à 35 km de la frontière
nigéro-camerounaiin seternationalemenreconnue et quia toujoursfait
partieintégrantdeu Cameroun. Son occupationdepuis 1987 etles
allégationdsiplomatiquensigérianeselon lesquellesDarakseraitsituée
enierritoirenigérianprovoque lesprotestationses plusénergique su
Ministre des Affairesextérieure csamerounais (Annexe M .C. 357)."
(Memorial,para. 6.87IzT2
17.85 No detailsof the"numerous protests"aregivenandonlyone protestis referredto
specifical:y thatof21 April 1994, afterCameroonfiledits firsApplication. The
readerof the Memorial must find itstrange that,ifthe allegationsof Nigerian
intrusionsand misdeeds were justifiedCarneroon failedto make any protestin
1987, failedto includethe issuein its Applicatioandfinallyinvoked the issueof
LakeChad only inApril1994.
272 "TheRepublicofCarneroohasiodgednumerousprotestswitheNigeriaGovernrnen,ofartono avail.
Forexample, tprotesnotof21 April 199concerntlie m of Darak,whichis locakd35kmfrothe
internationrecognizedfrontbetweenNigeriaand Cameroonand haaIwaysbeenan integrpartof
Cameroon.Itoccupationsince19andtheNigeriandiplornassertiothaDarakliesinNigeriterritory
drawthemostforcefuiprotfromCarnemon'Ms inisterof ExtemalRela(AnnexM.C. 3571." AppendixtoChapter17
CONTEMPORANEOU SCCOUNTSIntroduction
This Appendixisa collectionof contemporaneonsoteon villagein thedisputedareaof
Lake Chad made (exceptin thecaseofthe fourvillagementionedbelow)by Christopher
Hackfordand CliveSchofield,membersof theFederalGovernment ofNigeria'slegateam,
duringa visito theareain May 1998. They arebasedon interviewsconductedwith the
localChiefsfwiththe assistanceof tramlators),eye-witnessaccountsand GPS recordings
takeninthe centreof each settlement.
Four villages(DoronMallam,JribrillaraS,abonTumbuandKoloram) were visiteinthe
week commencing 18 May 1998 bya teamof members ofBorno StatGovernmen tncluding
surveyorsand localgoverment officiais.Reading were takenusing a GPS Magellan
ReceiverandinterviewswereconductedwiththeBulamas ofthefourvillages. Thesevillages
had notpreviouslybeenvisitedby representativofthe FederalGovernmentof Nigeria's
foreignlegal team, duto thdifficultiofaccessibiiityby fourwheel drivevehicleor by
boat.
Thevillageslistedbelowwerenot visitedby representativsf the FederalGovernmenof
Nigeria'slegalkam inMay 1998, becausetheareawas perceivedas toodangerousas a
resultof an invasionof islandsbyChadianbandiThe team waswmed aboutthiskat
by Nigerian fishermenon theLake. The GPS reading fsrthesevillages weretakenby
surveyorfrom Born StateGovernment at aIaterdate. kadings wereEakenusinga GPS
MagellanReceiver and interviewswere conducted with the Bulamasof the villages.
However,the Bono teamwas intercepkdon its journeyby Chadianbanditsandthe notes
oftheinterviewsweredestroyed.
AisaKura Karakaya LokoNaira
Bashakka Kasuram Mareya Njia Buniba
Kanumbuir LogonLabi Sokotoram
NimeriThevillageof Murdasis situateat CO-ordinate1s2O46.696'North, 14"12.688'East.
Thevillage was foundedapproxirna telears agoby BulamaHassana,who camefrom
Abasaniin Cameroon. The currentBulamais called Housseni Hamma, who is about 60
yearsold. Thevillagewas foundedprimarilyforfishing,and therewas evidenceof boats
in the villageHowever he Lakehasreceded substantialfrom thevillagover a number
of years,with the resultthatthe populationarno longer ableto carryout any fishing.
Insteadtheveryfertilesoi1aroundthevillagis usedforagriculniralurposes,in particular
thegrowingof rnaizandbeans:thewhoiepopulationis involvedin faming. Thevillagers
obtaintheirdrinkingwaterfroma welIwhich tfiehavedug in thevillage.
Aside from the substantiaagriculturesurroundinthe villagetherewas alsoevidenceof
horses,cattlegoatsanddonkeys(although thes e ayalsobelong tothe nomadswho were
prevalentin tharea).
Thebuildings inMurdasarepredominantit yhatchedconstructionalthoughtherewerealso
somemud hutswithgrass roofs.
There are approximatel300 people in the village, of whom200 are aduItmales. The
principalethnicsgroupsof thevillageareKanuri,ShuwaandHausa. Thevillagerspayand
havealwayspaidcommunitytaxandcattle tax toNgalaLucalGovernmentAuthority.
TherehasneverbeenanydisputewithCameroon,Thisvillageis situatatCO-ordinate12'46.358'North, 14O14.873'East.
Thevillageisalsoknown as"HaileKacha"a , nas "Bulakilakach.i"
It was foundedapproximatel y5 yearsago forthe purposesof farming,bya mancalled
AdamouAdamkatcho , NigerianwhohadmovedfromNigeria to Cameroon,beforecorning
to the areaand foundingMukdala. The currentBulamais caIledMohammed Adamo,who
was approximately30 yearsold.
Mukdala is a versmallvillagewita populatioofapproximatel1y00adults,ofwhom there
were 57 men. Theyare al1famers whoworkin thefieldssurroundinthe village. The
predominane tthnicgrouparethe Shuwa Arabsalthoughthereare alsoKanuri,Kotokoand
Hausa. The peoplepaycommunityandcattle taxto NgalaLocalGovernmenA t uthoritas
iheyhavealwaysdone. Theyal1regardthemselves asNigerians.
The Lakedoes corneupnear thevillageduringthewet season,and thena number ofthe
villagerscarryout some fishing,but forthe most part thisisa permanent sealement
surroundedby agriculturland. Thevillageis smallandpredominantlcontainsgrasshuts,
although thereare a few mud huts with thatchedroofs. A well has been built bthe
communityin ordertoobîaindrinkingwater.
The only conffictwithCamerootookplaceabout nineyearsago,when armed Cameroonian
soldiercame intothevillageandclaimedthat iwasa Cameroonian villageThe villagers,
however,informed the Camerooniansthat it was a Nigerian village, after which the
Camerooniansleftthe villageandneverrehimed.Chika'ais asubstantiatsmalltownat CO-ordinateisZ046.992' North, 14O16.423'East.
Chika'a was allegedlyfound33 yearsago by BulamaDanDaudaSulamanwhocame from
Wulgoin Nigeria. Itwasfoundedon a smallisland forthepurposesof fishing.Thename
Chiku'ameans "filup" (Le. thatthe watersbe full of fish).The cunent Bulama is
MohammedWamn, who is 68 years.
This large,verypermanent settlementcontainsbothgrassand mud huts. Comgated iron
wasusedforroofsanddoorsfor some of the buildings. Therewaa Iargemarketplace,but
itwas not active on the dayof our visit. Therewasalsa dispensary,witha number of
medicationsavailableforpurchas.e
There aremobile medical visits organisedbtheNgalaLocal GovernmentAuthority. The
childrenattendschoolat Naga'a,whichis situatednearby. There isalsoa weZlwhich was
builtby the villagers. Asifrom faming and fishing,whicharetheprincipaloccupations
of thevillagers,therewasevidenceof pettytradingin foodstuffs,agriculturlroductand
other misceHaneou psrovisionfe.g.washingpowder etc.).
Theapproximate populatioof thesealement is3,000,of which2,000 areadultmales. The
largesethic tribeinthevillageis Hausa,butKanuri,Shuwa, Kotoko,bnembu and Fulani
area11represented.
The people of Chika'apay community tax and cattletax to Ngala Local Governent
Authority,andhaveneverpaid it toanyoher authority.
Thepopulationare al1Nigerians,and they haveneverhad a disputewith Cameroon. The
Bulama of his villagehadvery strong feelingsaboutthe boundary,and claimed ioknow
whereit Iay-onan islandoffHadidi. TheBulama also saithatthey wereNigerians,theyhadalways been Nigeriansand theywantedto remainNigerians. Theysaid thattheywould
fighttoremain aNigerianvillage. NAGA 'A
Naga'ais anotherlargesettlementsituaied at CO-ordinate s2'46.120' North, 14"17.896'
East.
Itwasfounded20 yearsago byBulamaEdriza,a Nigerianwhohadmoved toCameroonand
from there moved to foundNaga'a for the purposesof faming. Naga'a means "plain,
unsettled,fertileland". ThecurrentBularnais BokaGouja,who is 52 yearsold.
The Lacal GovernmentAuthoritybasprovided aschool, a cIinic ana cernentwell. The
peoplehavealso builttheirownmosque, a Jurnmatmosque,whichhosts Fridayprayers for
themusIimcommunity.
The buildingsin the villagewereprincipallybuiltof grassandmud,buttherewas also use
of comgated iron,notablyin the constructionofthe mosque. Therewas a security gate at
theentranceto the village,whichwasrnamedby asecurityguardin Nigerian uniform.
The soi1aroundNaga'ais very fertileandNgalahcal GovernmentAuthorityhasprovided
thevillagerswithfertilizerandpesticidesto assinttheirfarming.The principa lccupation
of the villagersis farming,althoughwhenthewaters arehigh a numberdo also carry out
fishing.SrnaIl-scaltradinin fishandfoodstuffsalsotakesplace.
Tfie estimatedpopulationis approximateyl 4,000, composed of Kanuri,S huwa, Kotoko,
HausaandIbo. The Shuwa are the largestethnicgroupinthe settlement.
The people of Naga'apaycommunityandcattle tax toNgalaLocalGovernent Authority,
and havealwaysdone so. The peopleareal1Nigeriansand haveneverhad adisputewith
Cameroon.GoreaChangi is a relativ lelyesettlementsituatedat CO-ordinats2"47-672' North,
14"19.998'East.
Itwas foundedapproximately35 yearsago by AlhajiAhmed,who came from Cameroon.
He later rnigratedback to Cameroon,but the Nigerians, who had joined him at the
settlement,rernained.Thevillageis namedGureaChangiaftera whiteman calledChangi
(?)whovisitedthisarea.
The currentBulama iscalledUnusAdamand is approximatel50 yearsold.
Ngala LocalGovernent Authorityhelpedthe communityto builda weIIapproximately
tenyears ago. The housesare predominatelcomtmcted from grass,aIthoughtherewere
a fewbuiltofmud,and somecorrugatedironwasused.
Thereareapproxirnately550adultmalesregisteredforelectionin the villageaafurther
500womenand children. The mainethnic compositionis Shuwa, but Kanuri,Kotoko,
Kanembu, Fulaniand Bausa are also present. Aside from farming,which ithe major
occupationof the populatioofthevillagesome also occupythemselveswith fishingand
trading.
Peoplepay community andcattletax tothevillageheadof Darak,whopays iton toNgala
Local Governent Authority. Thishasalwaysbeenthe case, andeven the founder,Alhaji
Ahrned,paidtaxetsoNigeria,althoughhecamefromCameroon.Theyareal1Nigeriansand
haveneverhad adisputewithCameroon.Katti Kime is a substantialsettlementon the edge of the cumnt Lake atCO-ordinates
12'49.615' North, 14"20.117'East.
KattiKime is splitinto two villages:KKime Kora isthelargecommercial and harbour
centreof thetown,while KattiKimeGanais the smallerresidentialarea.
KattiKimewas apparentlyfoundedin theyearof the eclipse- 1959,nearly40 years ago.
Itwasfoundedby amancalledAlhajiAbdullahi,who came fromWulgo inNigeria. Itwas
foundedforthepurposes offishing,butnamed KattiKime aftethe redsoi1of theisland.
For four months of the year, Katti Kime Kora is flooded, and the wakr reaches
approximatelyone metreup the sidesof thebuildings. Duringthesefourmonthstheentire
populationlives inKattiKimeGana,or disperses toothersettlementsin the area.
The localcommunityhavebuilt a wellto supplydrinkingwater.
Atthelastcensus(1991)therewere some 4,000peoplein thesettlement,approximatelyalf
ofwhom wereadult males. The populationis made up of manyof the ethnic tribes in
Nigeria, but the majorityKanuri. Thepopulationoccupiesitself principawith farming
andfishing,alttioughthereis alsosometradingin foodstuffsandfish.
Thepopulationpays community taxandanimal tax tothevillageheadof Darak,who pays
thison to Ngala Local Governent Authority. This has alwaysbeen the casesince the
settlementwasfounded.
The majority of the population are Nigerian, althoughthere are approximately 10
Cameroonians ,0Chadians2 , 0 citizensof Nigera50 Malians. Al1these"alienspay tax
toNigeriaand arehappy todoso. Thereis nodisputeeicheramongst the foreignpopulation
in thesettlementor withCameroon asa whole, norhas thereeverbeen a dispute. DARAK
Darakis a substantiatownon an islandinLake Chadsiniatedat CO-ordinate1s2"52.648'
North, 14OL8.53E 0'st.
Darak was founded26 yearsago, in1972, althoughtheislandhadbeen visitea nurnberof
times by fishermenbefore then. Tt was settleby BulamaYahia,who originatedfrom
Bodari,in Marte LocalGoverment AüthorityBomo State, Nigeria.Itwas foundedas a
fishingsettlement. The nameDarak means"direct",which referto thewish of the people
thatthe windandthecurrentof the waterwoulddirectthe fishto them.
TheNigerianFederalGovernment hasestablishea policestationan amy unir,a customs
and immigrationpostand StateSecuritposton theisland. Inaddition,sixyearsago,Ngala
Local Governent Auihoritybeganproviding mobile services,includinaclinic, dmgsand
pesticidesfor farminpurposes. A schoolwas alsoestablishedby the LocalGovernment
Authorityaboutfiveyearsaga, anda wellwas builtapproximatelten yearsago. TheLocal
GovernmentAuthorityand Bomo StateGovernent also assistthecommunity in improving
seed varieties, providipngsticideand fertilizerfor agricultureand providinets for
fishingNgalaLocalGovernmenA t uthorityalso maintainsthe waterpassagebetweKatti
Kime and Darakby clearing iof plant-lifein orderto ensuthat iremainsnavigableby
boat aial1times.
Darak,in additiontothe maintown, has asmallharbourareaat the Lakeshore. This is
Aooded annuallyandthepeoplemoveintothe townproper.Onoccasionthetownitself is
liable to flooding. In suca scenario,the Bomo State and Ngala Local Government
Authorityassistby sendingbulldozersto helpbuilddykes andrepairflooddamage.
The populationis approximately20,000, consistingof 15,000 adultsand 5,000 children.
Membersof most of Nigeria'sdiversetribeslive in thetown,but the largestcontiarent
theHausa tribe. Afterthe initialsettlementhepopulationgrewrapidly as peoplefrom
Wulgo and Kirta mlgo moved toDarak to fish.Thepopulationpaycommunity taxandcattletax to NgalaLocalGovernment Authority,and
also pay licencesforfishingcanoes toBorn0 StateGoverneni. They haveneverbeen
requiredto paytaxestoanyother authority,r to seek licencfrom any otherbody.
Theprincipalactivityofthepopulationis fishinand fming, and the fishingcommunity is
substantialTheyfaim rice,maize,sweet potatoeandcassava.Theyalsotradeinfishand
agriculturalroducts,aswelI astextileandother miscellaneousprovisions. Theytradeas
farafieldasMaiduguri.
ThevillagersarepredominatelyNigerians,althoughtherearea fewCamerooniansG , hanians
andMalhm in the settlement. They al1pay taxestothe two mling Bulamas,Mustafaand
Isa. ThedifferentnationalitiCO-exispteacefullin the settlement.
The townis setouton a sireetpatterand consistsof compacthouses,rnainIybuiltof mud
althoughthere are some of grass,whichare closeiysimated alongthe streets. ThereaFe
manyweH-established trees,andthe townalsocontainsa schoolandmarketarea. Thereare
manyshops,andmostitemsareavailableto buy,includingwashingpowderandtoiletpaper
etc. There arealsobarbers,hatshops and similarspecialistshops.
Thereare anumberof associationswithinDarak,includinga Traders'Union,a SocialClub,
Fishermen'sUnionand a Famers' Council.
Despitethesizoef the town,however,thereis no generatoror electricity,althoughthereis
acinema, whichshowsIndianfilms.
Therehas neverbeen a disputewithCameroon,andtheCameroonians havenevercomeand
askedthatthe peopleofDarakpay tax toCameroon.
Therehavebeenproblems withChad,particularlwhenuniformed soldierscornand forcibly
seizefishfromthefishermen of Darak,whilsttheyarefishingontheLake.On 4th May 1998, in the most recent incident,ChadiansinvadedTetawa,killing some
Nigeriansandcausingthe restof theNigerians to Aee. The Chadianspursuedthem tothe
islandof Nimeri,which theystiloccupy. Theyneveractuallycameto Darak,althoughthey
haveharassed fishermen from thisseulement. The villageofDororoya is sihiatatCO-ordinate 12O49.063'North, 14O17.697'East.
'-\ The villagewas foundedapproximately3 '0 yearsago forthepurposesof farming,by the
currentBulama,BulamaMallam,who came fromGamboruin Nigeria. Theme Dororqa
means "higherarea surroundedbygrassland".
The villageisanopenvillage,withmud hutsandgrasshutsdispersedovera wide area.The
interviewwas conductedin Arabic.
The only well on the island was built by the villagers. Theyhave never asked for
governent assistance,although theyhavebeen approachedby Ngala Local Governent
Authority,which hasaskedthem whetherthey needanysuchassistance.
The population isody about 100, of which55 areadultmales, and they are al1fromthe
Shuwa Arab tribe. The sole occupationofthevillagersis farming,and they growmaize,
potatoes,cassavabeans andokra,in the veryfertilesoi1surroundinthevillage.They pay
community taxto NgalaLocal Governent Authorityasthey havealwaysdone. Theyare
al1Nigeriansandhaveneverhad adisputewith Cameroon.ThevillageofRamin Dorinnais situatatCU-ordinat es'49.271'North, 14O17.365'East.
Itwas founded25 years ago by thecurrentBulama, BulamaUsunaGarba. He originates
fromHadjein JigawaState in Nigeria. Thename RaminDorinna means"hippopotamus
hole",as apparentlthereused tobe a numberof hippopotamiin thisarea.
The well and the mosque on the island werebuiltby the villagersThe settlementwas
founded for thepurposes of fishingalrhough thishas decreasedsubstantiallsince the
foundingof the settlement.TheLake watersare notfaraway,butno longercorne upto the
village. The viliagersnow occupythemselveswithfarmingthe fertilesoil, growimaize,
potatoes,cassava,sugarcane,onions,tomatoes,beans and oh. Aside from faming and
fishinga numberof thevillagerstradein fish, agriculnproductsandgeneralprovisions.
Thepopulationof the villageisapproximately500, of whom200 areadultmales. The
largestethnicgroupare theHausa tribe,althougthereare also Kanuri,ShuwaandKotoko
tribesmenin thesettlement.Thevillagerspaycommunity taxandanimal tax toNgalaLocal
Government Authoriiyas theyhavealways dom. Theyare a11Nigerian,andtheyhavenever
hada disputewithCameroon oranyother State.Thevillageof FaggeissituateatCO-ordinate1s2'47.667'North14'15.433'East.
The villagwasfounded byBulamaHisaniAbdulKadir,thefatherof thepresentBulama,
more than 35yearsago. He came from Kirenowain Marte LocalGovernent Authority,
Nigeria. ThecurrentBuiama,AbdullaHisani,who is 35yearsold,wasbornin the village.
The viHagewas settleforthepurposesof fming, andthisis stil1soleoccupationofthe
villagerswhogrowmaize, beans,cassavaandokra,amongstotherplants,intheveryfertile
soi1ofthearea. They donothaveanimalsand theLakewater istoofarawayforfishing.
Fagge is alargequietvillagewitmudand grasshuts.Themosqueandwellin thevillage
were builtbythevillagers.
The populationisapproximatel530, of whom 300 or soare adultmales. The entire
populationare Shuwa Arabs,who pay theicommunity tax toNgaiaLocal Governent
Authority.The whole populationis Nigerian,and therehneverken any disputewith
Cameroon oranyothercountry. The bulamaclaimedthatthe boundarywas veryfaraway
andtherefortheyhadhad no boundarydisputes.Theteamwereunable tovisittheislandofNimeri,due toitsoccupationby armedChadian
soldiers.However wewereable tointerviewthebulamaof Nimeri,whuhadfled toDarak.
Whatfollows below isa summary of thatinterview,
The villagewas allegedlyfoundedsome 26 yearsago. Itwas foundedby thefatherof the
currentbulama, who originatedfromBenue Stateandwascalled Abari Melamba. it was
foundedfor fishingandits namemeans"on topof water". The currentbulama isDaniel
Gabriel,who is approximatel40 yearsold.
The soleoccupationof thevillagers is fishing.hey receive fishing netand fishing
equipment from bothBorno StatGovernent andthe Ngala Local GovenimentAuthority.
They use Lakewakr forwashing anddrinking.
Thepopulationpays,asithasalwaysdone, comunity taxtothebulamaof Darak,who pays
itontoNgalaLocalGovernent Authority. The peopleof Nimerialsoreceivetheirlicences
forfishinfrom the sameauthority.
The populatioof thesettlementis oni200, of which150 areadultmales. The principal
ethniegroupistheJukuntribefromTaraba andBenueStates,althoughthereare alsoKanuri,
ShuwaandHausa. EveryyearNimeriis subject toflooding,andthepopulationleavesand
goesto Darak,which theyalso dependon fortheirsecurity.
Asidefrom theNigeriansinNimeri,therearesomeCameroonianss ,omeChadians andsome
Malians,altogetherrepresentiabout 20 people,who corneto Nimeri tocatchfishduring
thewet season,afterwhichtheyIeave.They al1paytax tothevillageheadof Darakandco-
exist happilywiththe NigerianvillagerTherehas neverbeen adisputewithCameroon.
There had never been a dispute with Chad. Recently however,Chadian armed soldiers
invadedthe islandof Tetawa. Theyusethisasa launchingpointforan invasionofNimeri.On 4 May 1998,19 med Chadian soldier@resumed to besoldiersas they were in
uniforni)anivein aboat. Theycame ontothe idand,boughtsome goodsandrernovedthe
Nigerianflag. They informedthelocal inhabitanshatifthey(theNimerians) evertold
Nigerianofficiaof theremml of the Nigerianflag,otheirrenirntheChadiansoldiers
would"dealwith" thepopulation.As a resuitalthe Nimerianslefthe islanand sought
protectioinDarak.
The med Chadian soldiershadsaidthathevillagewasChadian andnotNigerian. They
alsotol he localpopulatiotha heywouldcorne back andtaxeachNimefian 1,00 0aira
perpersoniftheywerestilllivininthe viliagontheirreturnApparentlyduringour visit
some of theadultmaleshadreturnedtothe islanwithouttheifamilies.The villageof DarakGanais situatatcoordinates12'52.496'North,14'19.996'East.
The villagewas foundedapproximately15 yearsago by BulamaGarba,who camefrom
Sokoto Statein North-WestNigeria. Dar& Gana means "srnallDarak". The current
Bulamais Malam Sangaya,who is approximate55 yearsold.
DarakGana is a smallvillageofatemporary nature,with simplegrasshuts.The water
surroundi tnhevillagis notdeep enough to allowaccess forany otherthan shallow-
bottomedboats. Each year,duringthe wetseason,thevillagefloodsandthe population
returnstoDarak. Someof the villagersarfarmerswho growmaize, beans,potatoesand
groundnu&, butthe primaryoccupationisfishing.For waterthe peopledrinkthe Lake
water,althoughtherearealsosomesmallwells onthe island.
Thereareapproximatel y00 peopleonthe island,of whomhalareadultmales. Thelargest
ethnictribearetheKanuri,althoughtherarealsomembers of theHausa tribe. Thepeople
pay communitytax to Ngala LocalGovernent Authorityas theyhave aiwaysdone. All
the inhabitantsftheislandareNigerian.Inadditioto thepopulationofthevillagesome
ofthepopulatioofNimerihavecorne toDarak Gana havingfiethe invasiooftheirvillage
by Chadiansoldiers.
Therehasneverken adisputewithCameroon, butapparentlythereis currentlycontinual
harassmentfrom Chadians. As an exampleof such Chadianharassment,theyquotedan
incidentonSunday10 May whichtookplaceat Naira,whenthe Chadianstook9%bagsof
fishand30,00N 0airafromthe fishermethere.Nairais situat etCO-ordinate12'54.634'North, 14"18.813'East.
Duetoharassrnenb tyarmed Chadiansoldierstheinhabitantsfthevillageof Nairhadfled
kir villageand moved to DarakandDarak Gana. Wewere ableto interviethe bulama
of Naira,Bulama Kiarikaka, ho isapproximatel42 yearsold. We werealsoable totake
a GPS readingjustoffshorefrom thevillagebut wereunable tovisitthesettlementitself.
Thesettlementwas foundedin 1973 byBulamaFanami, who came fromGeidam in Yobe
State, Nigeria. It was called Naasit was foundedinthe same yearthattheNairawas
introducedasNigeria'scurrency.itwassettledsolely forthepurposeof fishingandfishing
is still soleoccupationof theislanders.
The LocalGovernent hasaskedthe villagerswhetherthewishto receiveanygovernent
assistancebut theyhavenot requested any. Borno StateGovenunent also infomed the
populationtha ttwouldconstnict adykenear theisland, buthihsas notyet beendone.
Therearenowells, andthe islandersdrinandwash in theLake water.
Thevillageis seasonalandisliabletofloodingduringthewetseason, whentheinhabitants
of theislandieaveandgo toDarak to Iiveforfourmonthsor so.
Thereareapproximately100people intheisiandofwhom 60 percent.areadultmates.The
majorethnictribearethKanuri a,lthougthereareais0Hausa tribesmenontheisland.The
villagerspaycommunity tax tthe villageheadof Darak,who pays iton to NgaiaLocal
Governent Authority.Al1theinhabitantsf NairaareNigerians,andthey haveneverhad
adisputewithCameroon.Untilrecently theyhavenever had adisputewithChad,alttiough
thiis now nolongerthecase.Thevilage of GarinWam is situatatCO-ordinates2"47.505'North,14 O17.848'Eas.
The villagwas foundedapproximatel3y0yearsago byBulama AlhajiHanina,whowasalso
calledWnzam (thebarber)- hencethename ofthevillage. HeoriginatefromDaura, in
KatsinaState,Nigeria. Hewaspresentatthe interview, buthis son,25 yearold Bulama
Sani,whois thepresentbulamaandwasborn inthe village,conductedthe interview.
The village is very cleand tidy, with grass huts anmud huts with thatchedroofs,
surroundedby neatgrasswalls, enclosinprivatecourtyards.The villageitself waaIso
walledby astrawfence. Thereisa mosquein thevillage,wita comgated ironroof,which
wasbuiltby the villageraswas the wellwhichthe villageuse fordrinkingmer. There
arealso anumber of well-establishtrees.
The islandwas settleforfishingpurposes,butthisriolongeris possibledue to the drying
up of theLake,and now themain occupationofthe populationis farmingThe soi1around
the villageis very fertile,thevillagersgrowmaize, potatoescassavagroundnutsand
sugarcane. Inadditioto farming,thereissome tradinin foodstuffs.
Thepopulation ofthesenlementisapproximately2,000, owhom halfareadulmales. They
includetribesmenfrom theKanuri, Shuwa, Fulaniand Hausa tribes,thelatterbeingthe
largestThe Bulamas arefrom theHausatribe.
Thepopulationoftheislandpaycommunity taxto NgalaLocal Governent Authority.They
areal1Nigeriansandhaveneverhad adisputewithCarneroon.The villagatKafuramis situatatcu-urdhates12O47.649' orth14O11.297 ' ast.
Thevillagewasfounded19 yearago bythepresenbulama,UmourNam, who camefmm
Dapchi inYobe StateNiria. Thenameofthesettlement means "shorman" and iwas
namsd aftertheshortBulamawho founded thevillage. The villagewasettledfobth
fishinandfarmingpurposes.
Kafilramconsistsoa number ofhtched hua, althoughthe=were some mud hul. The
residentgo toKirta Wulgotoattendthe schoolorthe clinicbothof whichhave ben
prwided bythe NgaIaLod Gavement Authority.he vihgers havebuila wellanda
mosque.
Untatenyears ago,thevillagwuuldbeflooded duhg theannualwetseason ,utthisno
longerhappens .he Lake ,owever,isstill ntaofarfm thevillageappmximateI y
mile orsodistanc e,erefore,omeof theviüagerssa fishbutfarmingistheiprimaq
occupation. The mil,again,is veryfeitileanthe villagegmw mak, beans, oh,
potatoeand cassava ThevillagerscIaimhatthe=isno nd forany fertiiid uer,the
richnessofthe soilZnadditionto fishermandfarmers inthesettlementhe= arealso
pettytraderswhomde thefishandwho buyand sell househogoodsandmaterials.
The popuiatioofthesetüementisoniyabout300,ofwhornabout130 areadultmales. The
West ethnicgmupis theHausatribealthugh Kanuri,ShuwaandFuianiarealsoprese~t.
The viUagersofthe settlemepay comrnunitytaxtoNgda Local Gavement Authority,
and, inaddition,theFulatribesmen, hoawn thecattlinthevillage,paycailletothe
sameAuthority.Thishasalwaysbeenthesituation.
In addition to the predominantlyNigeria villagers, there are approximately
30Camemnians,20 Chadiaris 1,0citizensof Nigeran15 Maliarilivinin thevillage.Tkre is nodisputarnongsthevillage=, andaoftheviilagerspatax ttheBulama,who
paysiton toNgaiahcd Governent Authority.
Therehas beens,ubjectothefollowing,nodisputewitCameroon,as the viiiagesaythe
boundaryis far away. However,they did mentionan incidentfour yearsago when
twelvemed banditsfmm Camemon entered the presentbulama'shouse, stolehis
belongingand shothÎsw&. Six ofthemcame back twodayslaterandmurdered thethen
buha of thevillagso mostof thepopulatiomovedto Darak.TheCameroonian bandits
then,however,leftandthepopulationslowlyreturneThisincidentookplaceatthetirne
when therewasan ethnicdisputbetweentheShuwaArabsandthe Kotokos inCameroon.
TheCameroonian wshoinvadedthivillageweremerelybanditlookuiforfood. Mthough
armed, theywerenotCameroonian soldiers.Kamunnais situateatCO-ordinate12'44.719'North,14"10.492' East.
The villageofKamunna wasfounded approximately5 yearagobythe currenbulama,Said
Idrisaforthepurposesoffarming.The name means"water corneback"asthe founderwas
hopingthatthewaterswouldreturn sothatthecommunity could fish.
The well inthevillagewas builtbythevillagers. Duringthewet seasonthe waterIevel
rises,andreachesnot farfrom thevillageso somefishingbkes place,but,forthemost
part,thevillagersareoccupiedinfarmingma&, kans, potatwsand sugarcane.
The populationof thesettlementisonly 120,of whom two-thirdsareadultmales. The
villages are ethnicallydivercorningfrom theKanuri,Shuwa, Fulaniand Hausa tribes.
In additionIO Chadiansand 5 Cameroonian ive inthevillage,butheyareaware thatthe
villageis Nigeriaandtheypaytheircommunity tax,alongwiththerest ofthevillagerstu
Ngala LocalGovernent Authority as theyalwayshavedom. There isno disputeandhas
never beena dispute,betweethi villagand Cameroon, oranyother State.The villageof SagiissihiateatCO-ordinate1s2O45.600'North,14O08.943E ' ast.
Sagir was founded37 years ago for the purposesof farming,by Bulama Tom Harelta
Manawrtjiw, hocame fromNgaia. The word Sagi reans "birds" Hecame tofhisareato
fann,as therewaswateraroundandthe soi1wasveryfertile.
The watersof the havenow, however ,ecededsome distancandthere isno fishing
community anylonger,althoughone or twovillagersgo offtofishwhen thewatersrise.
Iristeathevillagersfm, growingrnaize,beans,potatoesoh, riceand other crops.
Sagir isa iargopen ShuwaArabvillagewith grass hul andmudhutç, anda numkr of
well-establishtrees.Thecurrent Bulama,Nus Tom, istheson ofthe founder.
Thepopulation is approximatey00,of which300 areadultmales. The largestethnicgroup
are theShuwaArabs, althoughFulani,Ibo, Yoruba,HausaandMaliansarealso present.
The villagerspay theircommunity taxtothe Ngala bcal Governent Authority, as they
havealwaysdone. Essentially,withthe exceptionothe Malians,the populationis entirely
Nigerian. The Malians pay theirtaxesto the Ngala Local Governent Authority and
recognisthevillageasa Nigerianvillage. Therehasnwerbeen a disputwithCameroon.
In respectof the nearbybeacon(BeaconII-V-81,the Bulamasaidthatimeansnothing to
them. "Somewhitemen came anderectedthebeacon and thenwentawayagain"theBuIarna
tolus.The villageof Kirta Wulgois situateCO-ordina 1247 -633'North,14'07.139'East.
Thevillagewasfounded 30 yearsagobytti presentbulama,MasoudMusa, a man of about
60 yearsold, who came fromWlgo inNigeria. The area was an isiandwhen itwas
founded,and the nameKi~a Wlgo means Wiilgo Island. It was founded,therefore,
primarilyfor fishing. Howevertheareais now ody an islandfor the five so rnonths
duringthewet season.
KirtaWulgois a largesettlemenwith a streetpatterand a main slreec.Italsohasa
market placeandmanyshops,sellhg awhole rangeof diversgoods. Ithasa clinicanda
school,whichwerebuiltwithassistancfromBorno StatGovernment .ta1sohasa number
of Federalinstitutions,includiagpolice station,a custom& immigrationpst and a
fisherioffice. The mosque and wells in the settlernentwere, however,built by the
villagers. On Wednesdays, thereis a weekly market, to which villagers fmm the
neighbouringareas(Ngala,Gamboni,Maiduguri and thewhole Lakearea) corneto trade
foodstuffs,fiand othermiscellaneouprovisions.
Thevillageis nolongerfloodeduringthe wetseason,but thewatersdo reachtheedgeof
thevillageverysixmonths. As aresultthevillagersbothfishandfam, dependingon the
season. The soi1isvery fertiland maize, potatws, cassava,sugarcane, bans,okra,
onion,watermelonandothercropsaregrown.
Thepopulationof thsettlemenis approximately,000,of whomhalfareadultmales. The
largesigroupsarthe Kanuriand theShuwaArabs,althoughtherearealso Fulani,Hausa,
Ibo,Yoruba,Malians,citizensof NigeandChadiansin the villageThere areno animais
amongst the villagerso the people do not pay cattle tax.However,they pay their
community taxtothe NgalaLocal Governmen Atuthorityasthey alwayhave done. The
peopleofthevillageal1regarthemsel asNsigerian.The20orsoChadiana sndNigerienspay tax tothebulamaandCO-exis happilywiththe Nigerians. A fewCameroonians corne
and stayoccasionall, articularonkrket day,but rheyhave notsettledthere.
Kirta Wulgo used to be the village headquarierfor theLake Chad villages, but this
responsibiliwas moved to Darakappruximatelyfour yearsago,in1994. WREA GUTUN
The villagof GoreaGutun is situatetdO-ordinat1s2"44.333North, 14"15.142'East.
GoreaGu- wasfounded25years agoby Buiama AbubakaAjid,the brotherothe present
Bulama. He originatedfromAbassani inNorthemCameroons. The placewas settled
principallyfor farming,andthname Gorea Gutunmeans "cottofarming".The present
Bulama isZakariahUnus.
Gorea Gumnis a vilageconsistingmostlofstrawhuts,althoughoneor two arebuiltof
mud. There area fewwell-establishtreesandthesoi1is veïy sandy. Thmosque was
builtbythe villagerA. srnaIlwelhasalso been builtbythecommunity,butthey usually
use theLake waterasdrinkingwater. Asidefromsome pettytradininfarm products,he
mainoccupation ofthevillagerisfarming,predominantmlyaizeandbeans.
The populationof thevillagis approximatel500, of whom200are adultmales. The
largesethniegrouparetheShuwa Arabs,althoughKanuriandKotokoare alsopresent.The
villagerspaytheircommunitytaxtoNgalaLocalGoverment Authority ashas alwaysken
thecase. Thepopulationareal1NigerianalthoughsometimesafewCameroonianc sornto
the villageandsettfor aperiod,duringwhichtimethey alsopaytheircommunity tax to
Ngala LocalGovernent Authorityandtheyrecogrii&ha(thisia Nigerianvillage. There
hasnever beenany disputewithCameruonor any othernation. DORONMALLAM
DoronMaIlamis situatedat CO-ordinate1s2'50.277' North, 14'06.033' East.
Thevillagewasfounded 15yearsago byBulama Mallam,whoisstill,attheage of70, the
Bulama of thevillage. Hecame fromBagainNigeria,andfoundedDoronMaIlamfor the
purposesof fishingDoronmeans"an island"soDuron Mailam means "theislandfounded
by MaIlam".
Thereis a Federalmarinepolice stationinthe village, and BornoStateGovernent has
funded amobile dispensarstatioand, abouttenyearsago,a primaryschool,which isrun
by NgalaLocalGovernmenA t uthorit. he villagerhavebuilta dyke and awell,from
which theygettheir watersupp1y.
DoronMallamis liable toflood& duringthewet season,andso a numberof the vilIagers
arefisfiermen.However,themajorityof the populatiarefarmers,who growdiversecrops
in theveryfertilesoilIn additiontherearea numberoftraders who tradeinagricultural
produce.
The populationofthesettlernentis approximat400,of whom260 areadultmales, 40 are
adult fernalesand00 are children. The populatioisprimarilyfm theHausa tribe,
althoughtherearealso familiefrom theKanuri,Shuwa, Kotoko andFulanitribes. The
villagerspaycommunity tax to theBulama of Darak, who pays iton to Ngala Local
Governent Authority. This has alwaysbeen thesituation.Most of thevillagerare
Nigeriansfrom Ngala districtinBornoSiate- thereare no Camerooniansor Chadians,
althougthe* arefourNigeriensandabout 100Malians. These"foreignersCO-existappily
withtheNigerians,andpaytheircommunitytax toNgalaLocalGovernment Auttiority.
Inabout1986(there was no exactdate)some Cameroonian militaryandsecuritypersonnel
came to thsettlementinflyingboatsandorderedtheBulama toassemble althe peopleon
theisland. The Bulama,havingnoticed theywere fromCameroon, rehsed to do soandsaidthatif thewere hereforthepurposesof conducthgacensus, itoughtto be carrieout
by the Nigeria Governent and no1the Cameroonian Government. The leaderof the
Cameroonian militaryarderedtheBulama to deciartha the islanwas part of Cameroon,
and threatenetokillhim ifherefusedtodo so. He repeatedthithreatthre tmes,butthe
Bulama conthuedtorefusT e.henthe Nigerianamy personne ltandingnearbyfiredguns
at the Cameroonians ,nd this leato a generalcommotion,duringwhich theNigerians
managed,by force, to take fourguns from theCameroonians. Whenthe Cameroonians
realisethatthesituationwasnotintheirfavour, heyetreatedandlefthesettlernent.Since
îhateventtherehas beenno furthedispute.ThisvillageissituateatCO-ordinate12'42.975' North,13"58.440'East.
Jribrillarawasfoundedabout20 yearsagoand named aftethefounder,a gentlemancalled
Jribrin.He came fromBadiri inMarte LacalGovernent AuthorityB , omoState,Nigeria.
Thecurrent Bulama is calledGarbaMainoma.
Originallythesettlementwas foundedfor fishing,but thearea is no longerAoodedor
accessiblto the Lake,and themainoccupation ofthe villagersis farmitheveryfertile
soil.In additiotofarmingthereisanelement of pettytrading.Themosque and well were
builtbythe villagers.
Thepopulation of thesettlemeisabout8,000 o,f which3,00 0readultmaIes.TheIargest
ethnicgroup is fromtheHausa tribe,buhere arealso Kanuri,Shuwa,Kotoko, Fulaniand
Saralivingthere. The villagerspaycommunitytax toMarte LocalGovernmen Atuthority,
andhavealwaysdone so. In additionto the Nigerians,most of whomcame fromMarte
Local Government Authority,therearealso100 Cameroonians,80 Chadians,15 Nigeriens
and 80 or so Malians. These peopleare happilyintegrateintothevillagand pay their
comunity taxto Marte Local GovernmenAt uthority.Therehas neverbeenany dispute
wiih Cameroon.SabonTumbuis situatedatCO-ordinale12'44.975'North, 13'58.237East.
SabonImbu wasfoundedabout 18yearsago,as afishmgvillagebya mannamed Saiihu
Abubakar.He came fromRadejia inJigawaStateNigeria.Sabon means"new "and turnbu
means "fishinspot"- i.eit literameans"new fishg village".
Marte Local Governent Authorityassistedin buildina cernentwell,from which the
villagerobtaintheirdrinkinwater.Thepopulation hasalsobuiltamosque. Inaddition
tofishing,anumberof theviliagersfarthever=fertisoi1aroundthesenlemenatndsome
engagein pettytradininfishandfoodstuffs.
Thepopulationofthesettlemenis approximate2,000,of whomabout 800 areadultmales.
The Hausatribearethe largesbut thereare also membersothe Kanuri,Shuwa, Kotoko,
Kanembu, FulaniandSaratribespresentinthevillage. Theypay theircommunitytaxto
Marte LocalGovernmen tuttioriashey havealwaysdone, Asidefromthepredominately
Nigerianpopulation,herearekn Chadians,sixCameroonimand a fewNigeriens.These
peoplelivehappilwith thecommunity andais0paytheKtaxestoMarte LocalGovernent
Authority. Therehasneverbeen adisputewithCameroon.Koloram is situatatco-ordinate12'40.196'North,13"57.518'East.
Koloram was settledabout22 yeaago by BulamaMutsa (who came fromGashuain Yobe
StateN igeria)as afishingsettlemenThe presentBulama is MaiIafiywho is about55
yearsold. ThenameKubmmmeans a placewhereclaypotsareinabundance.
MarteLocal Governmen tuthoritfiasprovidea dispensarforthe villageThevillagers
have buila mosqueand awell,from where they obtah theirdrinkingwater. Thsoi1is
very fertilin this area, samongst the villagersthere armany famers aswell as
fishemen.
Thepopulationisapproximatel5,000,ofwhom 3,000areadultmaies.The principaehic
groupis theHausatribe,althoughtherearealsoKanuri,Shuwa,Masa'a, FuIani,Saraand
Ibo tribespeopleliviin thesenlement. They pay theicommunity taxtoMarte Local
Government Authorityasthey alwayshavedone. Mostof thepopulationisNigerian,but
there areeight Chadiansand eight Malianswho have settiedhereand who pay their
community tax tMarte Local Governent Authority. Theyhaveneverexperiencedany
disputewitCameroon orany othercountry. CHAPI'ER18
INTRODUCTIONANDBACKGROUNDA. Introduction
18.1 Cameroondid not putin issue thewholelengthoftheboundarybetweenLakeChad
and Bakassi until it filed its Additional Application on 7 June 1994. In
paragraph17(f) of that AdditionalApplication Cameroon "respectfully asks the
Court to specify definitively thefrontier between Cameroon and the Federal
Republicof Nigeria from Lake Chad to the sea". The boundary in the areas of
Bakassiand LakeChad is dealt with in Parts 1and IIof ibis Cormier-Memonal.
ThisPart IIIwill deal with theland boundarybenveenthosetwoareas.
18.2 By asking the Court to "specify definitively"the course of theland boundary,
Nigeriaunderstands Cameroon tobe seekinga detailedidentficationof the course
ofthe boundary("specify"),insucha way as tobe a finalandconclusivesenlement
of the matter ("definitively"). Nigeria would welcome such a "definitive
specification"of the landboundaryby the Court.
18.3 Cameroonhavingthus requestedthe Court to"specify definitiv"lthis 1,600km.
(1.000 miles) lengthofboundary,it is forCameroon,as theApplicant,to establish
the detailed delimitationof the boundary for which it contends. Camemn has,
however,manifestlyrefrainedfrompuningforward initsApplicationsor Memorial
its own "definitive specificatof this boundary.
18.4 Instead, Cameroonasks no more than that theCourt shoulddeclare the courseof
the boundary in terms of its course as fixed by cemin instmments. In
paragraph9.1 of the submissionsin its Memorial, Camemn asks the Court to
adjudgeand declare the course of the lake and land boundarybetweenCameroon
and Nigeriaalong a specifiedcourse as setout by Cameroon. That course begins
at a point whichCameroonregards as the tri-point Lake Chad, and continues
across Lake Chad to a point which Cameroonregardsas the mouth of the River
Ebeji (which Cameroon puts at longitude 14'12'11.7" E and 'latitude 12'32'17.4" N). From that point, according to Camemn's submissions (in
translation), the course of the boundary is as follows:
"- thence it followsthe course fixedby the Franco-British declaration
of 10 July 1919, as specified in paragraphs 3 to 60 of the
ThomsonlMarchandDeclaration,confirmedbythe ExchangeofLetters
of 9 January 1931, as far as the "very prominent peak described in
the latter provisionand called by the usual narneof "Mount Kombon";
- from Mount Kombon the boundary then runs to "Pillar 64"
rnentioned in paragraph 12 of the Anglo-Gemn Agreement of
Obokum of 12 April 1913 and follows, in that sector, the course
described in Section 6(1) of the British Nigeria (hrecromte and
Cameroons)Orderin Councilof 2 August 1946;
- from Pillar64 it followsthe coursedescnbed in paragraphs 13 to21
of the ObokurnAgreementof 12April 1913as far as Pillar 114 on the
Cross River;
- thence, as far as the intersectionof the straight Iinejoining Bukassi
Point to King Point and the centre of the navigable channel of the
Akwayafe,the boundary is detennined byparagraphs 16 tn 21 of the
Anglo-Geman Agreement of 11 March 1913. "
18.5 The land boundary which Cameroon in its submissions requests the Court to
"specifydefinitively"is thus a boundarythe courseofwhich Cameroon, despitethe
inferencewhich might be drawn from the secondparagraph of paragraph86 of the
Court's Judgment on the Preliminary Objections," does not itself specify by
reference toany geographicalcoordinates (except, by implication, for the starting
point on the shores of Lake Chad, and one mention of CO-ordinatesin the
instruments relied on by Cameroon - see paragraph 18.59 below). Nor does
Cameroonelsewhere initsApplication,AddiriomlApplication,or Memurialspecify
the line of the land boundary in terms of'geographicalCO-ordiites.
f'3 Them thCounsaidthat:"CameroonrequeststhattCoun'specifyde6niùwlthefrontibctwcrCamcroon
andNigeriafromLakeChad îoîhe sca' (AdditionalApplicpara.17(F)along linehc CO-ordinatosf
whicharegiveninCamemn's Mcmorial".All that Cameroon does is task the Court to confimtha the land boundary
betweenLake Chad and Bakassifollowsthe linesof delimitationlaid downin the
severalinstruments citedby Cameroon. However,for the reasons to be explained
(see paragraphs 19.2-19.52). those delimitation linare inadequate as a
contemporary"definitivespecification"of the land boundary.
Two exarnplesofthe inadequacyofthe delimitationsetinthe instrumentsrelied
on by Cameroonmay,however,be bnefly notedhere by wayof illusmtion.
(1) Thenorthemendofthe landboundaryisdescribodinboththe Milner-Simon
Declarationand the Thomson-MarchandDeclaration asbeingat "themouth
of theEbeji[River]". CameroonacceptsthatstartingpoisodoesNigena.
Both Cameroonand Nigena thus acceptthe relevatermsof the applicable
Declarations. But inits lower reachesthe EbejiRiver has two main
channels,each with its own separatemouth into LakeChad. The terms of
the Declarations,whichbothparties accept,thusdearly inadequateas a
"definitivespecification"of thedaxy. The matter is discussedbelow,
paragmphs19.40-19.43.
(2) Thesouthemendofthatstretchofthe boundarystillgovemedbythe Milner-
Simon and Thomson-MarchandDeclarations terminates at a peak, often
referredto(and identifiedby Cameroon in finaisubmissionsas)Mount
Kombon. YetCameroon'sownmap of the area identifiestwoseparatehills
as "Kombon", neitherof which appears to be the peak refertoin the
Thomson-MarchandDeclaration. Thusagain,Cameroonreliesonthetem
of the Thomson-MarchandDeclaration;so too doesNigeria B.ut again,
those termsare,when applied on the ground, inadequaas a "definitive
specification" of the boundary. The matter is discussed below,
paragraph19.14.1
various instruments cited in its finalsubmissioisunacceptable to Nigeria as a
"definitivespecification"of the land boundary. The terms of those instrumentsare
an acceptable starting point for the delimitationof the boundary, and Nigeria in
principle accepts them on that basis, but they are inadequate as a contemporary
"definitivespecification"of the boundary.
18.9 Cameroon, by relying on textswhich are inadequate for the purpose for which
Cameroon relies on them (namely as a "definitive specification" of the land
boundary), has failed to put forward its own version of the boundary linewhich it
claims to be the "definitivespecification" it seeksfrom the Court. Cameroon has
thus failed in its duty as the Applicantto identify adequatethese proceedings
the acmal boundary Iine which it claims to be the land boundary between Lake
Chad and Bakassi. Until it does so, Nigerireservesits positiongenerally,and its
right in particular to a proper oppomnity to comment fully on whatwer detailed
claim-line (if any) that Cameroon rnaychoose to puforward.
18.IO While resewing its position as to the location of the land boundary, Nigeria will,
however, showwhy the terms of the various instruments Cameroonhas cited are
inadequate as a "definitive specification"of the land boundary. Further, in the
absence of any officia1detailed claim-lineput forwarby Carnemon, Nigeria will
also where appropriatetake into account, asrepresentingthe bestavailabteevidence
of Cameroon'sofficialposition, certainmaps producedby the CentreGéographique
National of Cameroon (see below, paragraphs 18.61 and 19.6).
(i) Local chiefs and rulers
18.11 The territories now constituting the States of Nigeria and Cameroon came under
British and German protection in the thirdquarter of the nineteenthcenniry,and in patticular from1884 onwards(see Chapters 6 to9 above). Before then, those
territories were subject to thecontrol, jurisandtsovereigntyof local chiefs
and rulers. Cameroon'sMernorialignores thisphasein the region'shistory. It is,
however,important, since the extent of British Gem authonq depended
upon the extent of the area whichwas subject to the control, jurisdiction and
sovereigntyof theariouslocal chiefsand rulers with whomBritain andGermany
concluded treatiesof protection. While, as shownin Chapter 6 to 9 of this
Cowiter-Mernorial,thiswaspanicularlyimportantinthe contextofthelocalchiefs'
and rulers' authorityoverthekassiPeninsula,it is equally importinrelation
tootherareasal1alongthe land boundarybetweenthepresentStatesof Nigeriaand
Cameroon.
1
(ii) Generalwolutionof the boundary
18.12 The wolution of the boundary from aline separatingspheres of inffuenceiato
mie internationalboundary betweenindependentStatesresultd €mma series of
agreements,which will bereferred to in more detainparagraphs 18.30-18.57.
It may,however,be helpfulat the outstoillustratethis evolutbynreferenceto
five sketch maps. The first four of these maps, in the Aria at53aand54,
illustratethe lias it had evolveby 1893, 1913, 19'31and 1946 respectively.
The fif thap,AtlasMap 55, bringsthe variousrelevantlinestogetheron onemap,
so givingan overviewof the evolutionaryprocessas a whote.
(iü)Britainand Gennany
18.13 Britainand Gennany establishedtheir protectionover.the southernain1884 -
Gemany by agreementsconfluded in Jul1884 (see above,paragraphs6.3-6.5).
Britain by a series of treaties with local chiefs rulersbetween July and
September 1884 (seeabove,paragraphs6.27-6.36).Both graduallyextendedtheir' protection andauthorityoverthe more northerlyand iniandareas in the following
years.
18.14
The GeneralAct of the Conferenceof Berlin, 26 February 188527a4cknowledged
chatcolonialsovereignty,as wellas Protectorates,couldexist inthispart of Africa.
It has to benoted that no African representativesartendedthe Conference,even
though it was their temtones which were thesubject of the Conference:i.e. for
them the resultsof the Conferencewereresinteraliosacta.
18.15 By an Exchange of Notes of Apnl-May 1885 (NC-M 24) Great Britain and
Gennany mutually recognised each other's spheres of inAuencein the region,
separateby a linerunningfrom the mouthof the Riodel Reyto a point some160
kilometresinlandidentifieby a referenceto "Rapids"on the CrosRiver.
18.16 Great Britain andGermany subsequentlydelimitedthe territorialextent of their
Nigerian and Carneroon interests in a series of agreements. These were
principally
l
(1) an Exchange of Notes of JulyIAugust 1886, extending the 1885 line of
separationfurthernlandto the vicinityof Yola(NC-M 25);
an Agreementof 1 July 1890 (NC-M 26).confiming (in ArticleIV.2)as a
(2)
provisionalline of demarcationa linenning from the head of the Rio del
Rey tothe "Rapids"on the CrossRiver;
(3) an Agreementof 14 April1893 (NC-M 27),further specifyingthe Rio del 1
Reyline of separation; 1
n4 BFSP ,ol76.(1884-1885).p. 4
I (4) an Agreementof 15 November 1893(NCIM28), extendingthe delimitation
northwardfrom Yolaup to LakeChad;
(The Anglo-German delimitation as it stood after these agreements is
illustratby Map 53 in theAth.)
(5) an Agreementof 19 March 1906 (NC-M 38), replacingandmaking more
precise the893 delimitationfrom YolatLake Chad;
(6) a Treaty of 11March 1913 signed at London (NC-M 451, coverinthe
Southern stretchof boundaryfrom Yolato tsea;and
(7) an Agreementof 12 April1913 signedat Obokum(NC-M46) demamting
the boundaryfrom Yolato Cross River.
18.17 Theresultof these riou usterritorialdelimiwasithatthe1imitof Britishand
German interestsfollowedthe lineA-B-C-D-E-F-G-shown inred on Map 53 in
the Atlas.
(iv)WorldWar 1:The United Kigdom and France
18.18 Foiiowingthe outbreakof the First WorldWin August 1914,Franceand Great
Britainbegan offensiveactionagainstthe GermanColonyof Kamerun,which was
finallyconqueredi1916. In 1916 France and thUnite Kingdomagreedon the
"Picot-Stracheyline" (seebelow,paragra18.30)asa provisionaldelimitationof
thecommonboundarybetweenthe Kamerun(Cameroon) andNigerian temtories
undertheu control and authority. (v) The 'haty ofVersailles:The United Kingdom and France: Mandates
18.19 After the end of the War in 1918, Germany, by Article 119 of the Treatyof
Versailles919, renounced infavourof the PrincipalAlliedand AssociatedPowers
its rightsand titles to its overseapossessions,and a few dayslater France and the
UnitedKingdom, bythe "Milner-SimonDeclaration"(NC-MSO),agreeda division
oftemtorial authoritybetweenthem inrespectofthe former Germanpossessionof
Kamerun(Cameroon).
18.20 In 1922, League of Nations Mandateswere granted to theUnite Kdingdomand
Franceover theseformerGermanterritories(NC-M 51andNC-M52),onthebasis
of theMilner-Simon Declaration. While the mainareaof Cameroonwas placed
under French Mandate, the BritishMandated area consisted of two relatively
narrow slices ofterritory adjacent to the easm borders of Britain's Nigerian
Protectorate:hese narrowslices were separated, to tEast of the townof Yola,
by part of the territory of the Protectoratof Nigeria, whose boundary with
Cameroon ran for about90kms.(60 miles).
18.21 In 1929 the United Kigdom and France, by the Thomson-Marchand
Declarati~n,~'made a more precisedelimitationof the boundary between their
respectivetemtories from LakeChad to the sea. Thisdelimitationwas confirmed
by an Exchangeof Notes of 9 January 1931 (NC-M 54), and is indicateby the
blue line on Map 54 in the Atlas. Exceptwhere it is necessary,to referseparately
to the DeclarationandtheExchangeof Notes,these two instrumentswillin this and
the foflowing Chapter be referred to together as "the Thomson-Marchand
Declaration 1929-1931".
''' Allhougthe Declararcxistas a separdocument,it waneversigoedor datas such. The entire
Declarationis rep~dvehiim in tExchangcof Noiof9 January1931WC-M 54). (vi) TbeUnitedKigdom and France:ïkusteeship
In1946 Trusteeship Agreementreplacedthe Mandates,followinin substance the
18.22
same boundaries (although the Agreements for the Britishand French Trust
Territoriesdid notdefinetheircornrnonboundaryin thesarnekm:seeparagraphs
19.68-19.70below).
18.23 By the Nigeria (Protectorateand Cameroons)Order in Council, 1946,the United
-dom administrativelydivided its narrow slices of former Mandated, now
Tmteeship, tenitory into the Northem and Southem Cameroons: this division
followedan approximatelyEast-Westline, abouthalf-wdybetweenYolaand the
sea,and is indicatedbthebrokengreen lineon Map52 in the &las.
l
(vii)Independence
18.24 FollowingIndependence forbothNigeriaand Cameroon in 1960,and referendain
NorthernandSouthemCameroons, theNorthem Carneroonsjoined Nigeriaandthe
Southem Cameroons joined Cameroon.
C The BoundarvToday
18.25 The effect of the successivestages in the developmentof the boundarybetween
Nigeria and Cameroon is that the main l'andboundary men Nigeria and
I Cameroontodayconsistsof four distinctandconsecutivesectors,foiiowtheline
rnarked& bluejoining the points J-B-C-D-K-F-G-Hillusrrat@on Map56 inthe
Allas. For purposes of cornparisonthatsketchrnap dsoiridicakysa mi line, the delimitation resulting from the various Anglo-Gemn agreements referredto
inpaiagraph 18.16 above.
18.26 The four sectors of the present landboundarybetween Lake Chad andBakassiare
inbroad terms as follows:
Sector 1: from themouth of the Ebeji River (point1) toHill 1660in the vicinity
of Mount K~mbon~'~ (point K): this sector is the former Anglo-Frenchboundary
resulting from the Milner-Simon Declaration 1919 and, in greater detail, the
Thomson-MarchandDeclaration1930-1931,and incorporating,in itscentralsection
between pointsB-C-D,the former Anglo-German boundaryestabiishedin 1906;
Sector 2: from Hill 1660 (pointK) to BoundaryPillar 64 (pointF): this sector is
the former administrativehoundarybetween the British adrninisteredNorthernand
Southern Cmeroons. resulting from the Nigeria (ProtectorateandCarneroons)
Order in Council 1946;
Sector 3: from BP 64 (point F) to BP 114 (point G): this sector is the former
Anglo-Geman boundary,resulting from theAgreementof 12April 1913recording
the demarcationof the boundary fromYolato the Cross River;
Sector4: from BP 114 (point G) to a point North of Bakassi(pointH): this is the
former Anglo-German boundary resultingfrom theTreatyof 11 March 1913.
18.27 Eachof thesefour sectorsof the land boundaryisconsideredin turn in Chapter 19.
As regardsthe rest of the Nigeria-Cameroonboundary:
- the boundaryin Lake Chad is consideredin Part iiof this Counrer-Mernorial;
276 ForthcrcasogivenbelowinCbaptcr19,par19.14itispreferablemreWHill 16M rathchantoMouni
Kombon. . . - the boundarysouthwardsfrom pointH is consequentiaiupon the detemination
of title to the BakassiPeninsula, and is consideredin Part 1 of ihis Corinter-
Mernorial;and
- the maritimeboundarysouthof the BakassiPeninsulais consideredinPar tV
of this Counter-Mernorial.
18.28 The landboundarybetweenLakeChadand Bakassias it istodayis thusprincipally
the resultof the followinginstnunents: I
(1) the Thomson-MarchandDeclaration 1929-193 asto thestretch fromPoints l
J toK on thesketchrnap at Map 56 in the Atlaparticularisighe earlier
Milner-SimonDeclaration 1919); l
(2) the Nigeria (Protectorateand Carneroons)Order in Council 1946 (as to the
suetch fromPointsK to F on that sketchmap);
(3) the Anglo-Gennan Demarcation Agreementof 12 April 1913 (as to the
stretchfrom Points toG on that sketchmap);
(4) the Anglo-Gennan Agreementof 11 March 1913 (as to the stretchm
PointsG toH on that sketchrnap).
18.29 Each of these instrumentwas preceded by earlier textswhich aiso delimitedthe
relevantline wholly or in part, but as those earlier weetstoa large extent
superseded by the later instruments listed above it is those instruments which
priiifipailydelmit the currentboundary. Nevertheless,those instrummustbe
seenin theirhistoricalcontext,sinceit maybe necesstarefertothe earliertexts
in order fullyto understandthe meaningof the later instrumen~. Thebackground
to eachof those instrumentswill nowbe considereditum, inthe order in which they successively delimit the four sectors of the land boundary identified in
paragraph 18.26.
(ii) The Thomson-Marchand Declaration
18.30 This Declaratiowas the final stagein a senes of delimitationsagreed betthen
United Kingdomand France. Thefirst stage was the so-called "Picot-Strachey"
line. It wasthe resultof negotiationsbetweenPicot (for France)andStrachey (for
the United Kingdom) regarding the provisional administration of the German
temtory ofKamerunwhich, with the outbreakof the Warin 1914, Franceand the
UnitedKigdom had occupied. During their negotiations,the British andFrench
negotiatorshadapparentlyhad beforethem arnappmduced by Picoton whichhe
had drawn a line indicatinga division of territoSouth of Yola. During the
discussionsSmchey drew on it a mugh line in blue pencil amending Picot's
originalline. Thetwo Govements, by an Exchangeof Notes of 314March 1916,
acceptedthe linesdrawnon the map signedbythe twonegotiators,on the basis of
certain other arrangementsset out in thenitiatingFrench Note, with whichthe
BritishGovemmentag~ed."~ As Cameroon acknowledges,the originalof the
map on whichthis line was drawn, and which formed the basis fortheExchange
ofNotesof 314 March 1916,has not beenfiund (Mernorialpara. 4.52). Its nature
and extent can thereforeonly indirectlybe gleaned frorn the records lbytthe
negotiators,andother interna1papersofthe twosides. Itsdirectpracticalrelevance
for the current boundaryline is very limited,both kcause the acmalcourse of the
lineis not knownand because, wherever theline ran, it wassuperseded by later
Anglo-Frenchagreements.
18.31
Withthe conclusionof the Treatyof Versailleson28 June 1919,by Article119 of
which Gemany gaveup its colonial possessionsin West Africa(NC-M 49).on
l
The ŒxtisaAnnex96toCamemon'sMernorial.not Ann99 asta~din theMernorpara:4.52 10July 1919the UnitedKuigdomand France signeda "declaration",to whichwas
annexeda document entitled "Descriptionof the Franco-British frontier,markedon
the map of the Cameroons, scale 1/300,000". This is commonlyknown as the
"mner-Simon Declaration", those being thenames of the Ministersof the two
States who signedthe "Description"and the declarationto which it wasannexed
WC-M50). The shortcoveringdocumentsigned by the twoMinisWrS records that
"haveagreedto detenninethe frontier,separatingthe territones of the
Cameroons placed respectively under the authority of their
Govenunents,as it is traced on the map (Moisel 1/300,000)annexed
to the present declaration, and defined in the description in three
articlesalso annexedhereto".
18.32 The Descriptionsets out thefrontierin Article 1 as beinga Iinestartinin Lake
Chad(asto whichseePart 11of this Counter-Mernoriai)t,henceby "Astraightline
to the mouth of the Ebeji", and thence. as set out in a series of short descriptive
paragraphs up toparagraph41. to the AtlanticOcean. Onlythe paragraphsup to
paragraph 22 are relevant to the present land boundary between Nigeria and
Cameroon, since Hill 1660 lies within the descriptionof the boundary in that
paragraph and theformer Anglo-Frenchboundary running southwardsfrom Hill
1660is no longerrelevanttothe present boundary betweenNigeriaand Cameroon.
Forthe reasonsindicatedin paragraph19.62below,theseprwisions may stillserve
a dmctly relevantpurpose today.
18.33 Articles 2 and 3 of the Milner-Simon Declarationcontain ceriain supplementary
provisionswhich are relevanttothe deliitation of the boundary. Thus Article 2
provides:
"1. It is understoodthat at the time of the local delimitationof the
frontier,where the natumlfeaturesto be followedarenot indicatd in
the abwe description, the Commissionersof the two Gwernmentç
will, as far as possible, but without changingthe attribution of the villages namedin Article 1, lay down thefrontiein accordancewith
natural features (rivers, hiils, or watersheds).
The BoundaryCommissionersshall beauthorisedto make suchminor
modificationsof the frontier line as may appear tohem necessary in
order to avoidseparating villages fromtheiragricultural lands. Such
deviationsshall be clearly marked on specialmaps and submittedfor
the approval of the two Governments. Pending such approval, the
deviations shall beprovisionallyrecognisedand respected.
2. Asregardsthe roads mentioned in Article 1, only those which
are shownupon the annexedmap shall be taken into consideration in
the delimitationof the frontier.
3. Where the frontier followsa waterway,the median line of the
waterwayshall be the boundaxy ..."
Article 3.1 providesthat "[tlhe map to which referenis made in the description
of the frontier is Moisel's rnap of the Cameroons on the scale 11300,000".and
identifies the particular sheets used. Article 3.2 identifies the map "attached to
illustratethe description of the abovefrontier" a"map of the Cameroons, scale
1/2,ooo,MM".
18.34 The Mandates for the British and French Cameroons (NC-M 51 and NC-M 52)
adopted the line fixedby the Milner-Simon Declaration as the line of division
between the two mandated areas, the British and French areas king defined in
Article 1 of each Mandate as the areas situated, respectively,to the Westand East
of that line. The text of the Declaration was a~e~ed to each Mandate. Article 1
of each Mandate, however, allowedfor the line to be slightly modified by
agreementbetweenthe British and French Govemmentson points where, either in
the interest of the inhabitants or because of errors in the Moi1:300,00 m0ap
amexed to the Declaration, examinationon theground showedit to be undesirable
to holdexactlyto the line indicated. The delimitationof the frontier on theground
was tobe made in conformity with theprovisionsof theDeclaration.18.35 During the 1920sMnous relativelyminor practicalproblemsarose regardingthe
applicationofthe Milner-SimonDeclaration. The Gmrnor ofNigeria(SirGraeme
Thomson)and the Governorof the ~renchCameroons (M. Paul Marchand)put in
hand arrangementsfor further specifyingthe boundarybetween the Britishand
French Cameroons. They signed a Declaration, known as the "Thomson-
Marchand Declaration", relatingto the frontier betweenthe British andFrench
areas of the mandatedtemtory of the Cameroons(NC-M54). The Declarationis
undated,but wouldappear tohavebeen signedin 1929.
18.36 The Declarationstatesthat thesignatories
"haveagreedtodeterminethe frontier,separating the territones othe
Cameroonsplaced respectivelyunder the authority of the British and
French Governrnents, as is h-aced on the map a m to this
declarationand definedin the descriptionalso annexedhereto".
TheDeclaration describesthe boundarybyreference to successivelines described
in 188 short paragraphs. The first two paragraphsrefer to the boundaryinLake
Chad. This part of the Thomson-Marchand Declarationis dealt with iPan iiof
thisCounrer-Memonal .aragraphs3 - 60 dealwiththe land boundar between the
mouth of the River Ebeji and "a faiulyprominent, pointed peaknn sometimes
regardedmisleadinglyas a referenceto MountKombon:butseeparagraphs18.7(2)
abow, and 19.14below,and these are the paragraphs which relate to the current
land boundary between Nigeria and Cameroon). Paragraphs61 - 188 are not
further referredtoin thiCounter-Memona sincethey conceni the former Anglo-
French boundaryrunning southwards from Hill1660,and that part of the former
boundarybetweenthe Britishand French Cameroons is no longer relevanttothe
presentboundatybetween Nigeria andCameroon.
" Thc Frenctextis sligdifftrtn"..usgu'unpic assprotminen..."wirhnomentionofrhcpeakbcing
poind.
. .18.37 Although theThomson-Marchand Declarationseemed, on its face, to constitutean
agreement between the two Governors, the results of their work needed the
approvalof the twoGovernments. This was forthcomingin the Exchangeof Notes
of 9 January 1931 (NC-M 54). This Exchange has to be seen against the
backgroundof the Mandate for the French and British Cameroons(sripm),Article
1 of each of which provided for a mixed commission to delimit the boundary
betweenthe French and British Cameroons. In approvingthe Declarationthe two
Govemments noted that "this declaration i...not the product of a boundary
commissionconstituted for the purpose of canying out the provisionsof Art1cle
of the Mandate, but oniy the result of a preliminary surveyconducted in order to
determine moreexactlythan was done in the Milner-Simon Declarationo1919 the
lineultimatelyto be followedbythe boundary commission"vnited KingdomNote,
paragraph 2).
18.38 Nevertheless, despite its preliminary character,twoeG0yernment asreed that
"the Declaration does in substance define the frontier", and the French Note
confirmed its acceptance of the Declaration while the British Note similarly
confirmed the agreement embodiedin the Declaration. Thtm Govemmentswent
on to agree that the actual delimitationcould now be entnisted tothe boundary
commission envisagedby Article 1 of the Mandate. However,mainly because of
financial considerationsmno early progresswas made in demarcatingthe boundary
by ajoint boundarycommission. When suchworkwasthdertaken fmm December
1937 to May 1939 it relatedoniy tothe stretchof thethen boundaty betweenBritish
and French Cameroons which, after the referendain1961, is now wholly within
Cameroon and is not relevant to the present boundary benveen Nigeria and
Cameroon.
18.39 Despite the Anglo-French agreement on the temis of the Thomson-Marchand
Declaration, it is to be notedthat the TiusteeshipAgreementfor French Cameroons
did not (although the parallel Agreementfor British Cameroonsdid) mention the Declarationwhen definingthe boundaries of the Tmt Temtory: see parapphs
19.68-19.70below.
(iü)The Nigeria (Protectorateand Cameroons) Orderin CounciI 1946
18.40 Althoughafter the SecondWorldWar the existenceof theLeague of Nationswas
terminated,Cameroonscontinuedto be admiistered in accordancewiththe terms
of the Mandate until other arrangements were agreed between the Mandatory
Powersand the United Nations. It wasalso at that tirneconvenientfor the United
Kingdomto make new arrangements for theadministrationand govemmentof the
Protectorateof Nigeria. Accordinglbythe Nigeria(Protectomtand Cameroons)
Oder inCouncil 1946(NC-M55) provision was made for the divisionof the
Protectorateintotwo regionsknownas the Northern Provincesand the Southem
Provinces(Article5). andforthe BritishmandatedareaofCameroonstobe divided
into a northem and a southernpan, the former to be admiistered (subtocthe
tem of the Mandateandof anyfutureTmsteeshipAgreement)as if it formedpan
of the Northern Provincesof the Protectorateand the latter to be admiiras
if it formedpart of the Southern Provincesof the Protectorate(Article 6). The
dividinglie between thenorthem and southemparts ofthe Britishmandatedarea
of Cameroonswas set out in the Second Scheduleto the~Order.
18.41 The Order in Council gave the Governor thepower, by Proclamation,with the
approvalof a Secretary of State, tvarythe provisionsof the Second Schedule
(Article(2)). Whenfurtherconstitutionalarrangementsfor Nigeriawre madby
theNigeria(ConstitutionOrderin Council 1951,anequivaientprovisiowas made
allowingfor thedefinitionand variationof the boundarianyfRegionof Nigeria
(Section5(2)(a)). The then existing boundariesof the different Regions were
establishedby vanous instruments made at different timesand theGovemor
concluded thatit was "expedienttodefinetheboundariofeach Regionin a single
Proclamation,but withoutvarying thesame". The Govemorthereforemade the Northern Region, WesternRegionand ~astern'k~ion (Definitionof ~oundaries)
Proclamation 1954 (NC-M 59). The Proclamationset out a detaileddefinitionof
the boundariesof the relevant Regions. Since it had previously been provided
(above,paragraph 18.40)that the two parts of the British-administered Cameroons
were administeredas parts of, respectively,the Northem and SouthemProvinces
(nw Regions)ofthe Protectorateof Nigeria,the lineofdivisionbetweenthosetwo
partsfeaturedintheProclamationas partofthe boundariesofthe NorthemRegion,
and inpanicular the boundariesdescribedin the finafew wordsof Sector N ("...
to Boundary Post64 situated on the nght bankof the River Gamana")and in
SectorO ("Thencefollowingthe River Gamanaupstrearn ...").
18.42 The descriptioninSectorO is in substance (andforthe mostpart interms)identical
with the description inthe Second Scheduleto the946 Order inCouncil, which,
of course, is to be expected, given the statement at the beginning of the
Proclamation thatitwas the intentionnot to vatythe boundariesas set out in the
wrious earlier instruments. Nevertheless,apart from purelystylis chaicgesof
text, diere is an apparently moresubstantivechangein the fifew lines. In the
1946 Order in Council theline dividing thenortherand southem portionsof the
Cameroons under British Mandateis describedasnrnningin variousstagesto the
junction of the RiverMburi and an unnamedstream, and
"thencealongthis unnamedstreamon a generalmie bearing of 120"
for one and a half mileto its source at a point on the new Kurnbo-
Banyoroad, near the sourceof theRiverMfi;thenceon a mie bearing
of100"for threeandfive-sixthsmilesalongthecrestofthe mountains
to the prominentpeak which marks theFranco-Britishfmntier".
In the1954 Proclamation the equivalenptassagereads-
"thencealong thisumamed streamto its source at a pointon the new
Kumbo-Banyoroad near thesourceof theRiver Mfi. Fromthis point
the bearing on the junction of the unnamed strearn and the River
Mburi is 313' (Magnetic)and on the southem and po'mkdpeak of Hosere Tadji is146" (Magnetic);thence'east along the crest of the
mountains to the prominent peak which marks the Franco-British
Frontier".
Despitethe differentterniinwhichthis stretchofthe boundaryis expressed,there
is linle doubt thatthesetwodescriptionsrefer to the sameIine. However,neither
descriptionis of the standardrequiredto delimit aninternationalboundarywithout
ambiguity,and the 1954 Proclamationis weakerthen itspredecessor. It omitsthe
distance measurementsand its introductionof magneticbearings is unforlunate.
The bearingto HosereTadjican be clearly shownto be in errorby 15" to 20".
18.43 With the replacementof the Mandateby a TmsteeshipAgreement for theBritish-
adrninisteredCameroons, the internal administrativedividing line between the
norîhernand southem parts of the British-administeredCameroonscontinued to
I apply. Thatline did not affect thealignmentof the boundarj betweethe British
and Fiench CameroonsTmst Temtones. Afterthe attainmentof Independenceby
Nigeriaand Cameroons in 1960,referendumswereheldin 1961 inthenorlhernand
southemparts of the Britishtrust territory of CameroonThe resuitwds that the
northern part chose tobecome part of Nigeria,while themuthem partchose to
become part of Cameroons. When this outcome of the referendumstaok effect
laterin 1961, the result was the transformation of the hitherto internal
administrativeboundary betweenthe British-administeredNorthem and Southern
Cameroonsinto an internationalboundarybetween Nigeriaand Cameroon.
18.44 Britain and Germany establishedtheir respectiveProtectoratesover Nigeria and
Cameroon in 1884. They needed to delimittheir respectiveterritorial interests.
They according coycluded agreementsover the next 25 years to delimit the
bundaries of their respectivespheres of iniluencinthe aEa of their adjoining Protectoratesin Nigeriaand Cameroon. Those agreementswere, in particular,the
Exchangesof Notes of 29 ~pri117May 1885(NC-M24) and of 27 July12August
1886(NC-M 25), and the Agreementsof 1 July 1890 (NC-M26), 14 April 1893
(NC-M 27). 15November 1893 (NC-M28). and 19 March 1906 (NC-M38).
These agreementsbeganwiththe delimitationin the areaof the BakassiPeninsula,
panicularly along theRio del Rey, and graduallyrefinedearlier delimitationsand
extended theminto the interior from the Gulf ofGuinea, as farinlandas Lake
Chad.
18.45 In additiontothoseagreements which dulyentered intoforce, Britishand German
officialsalsodrewup variousdraftagreements,or pmposalsforagreements,which,
however, never received theapproml of the two governrnentsand accordingly
neverentered intoforce. These drafts included:
- the pmposalsof the A.nglo-GermanBoundaq Commissioners(Close and von
Besser)in 1895(above,paragraphs8.2-8.5);
- the proposalsof the twocountries'senior oficials in the region(Moor and von
Puttkamer)in 1901 (above,paragraph8.7);
- the proposals in the Protocol prepared by the Anglo-German Boundary
Commissioners(Woodroffeand Henmam) in April 1906(above,paragraphs
8.9-8.11); and
- the boundary agreement signedby officials@ut not appmed) on 6 October
1909(above,paragraph8.11).
Thosevariousdraft or proposedtextsdid not, accordingly,efîectanychange inthe
legalpositionregardingterritoriallimits: inlegterms thelie remainedgoverned.
.,
until 1913,bythe instrumentsreferredto in paragraph18.44.18.46 On 11 March 1913 the U.K. and Germany concluded a Tmty covering the
boundary from Yola to thesea (NC-M 45). In the foliowingmonth, however,
British andGerman negotiators(Nugentand Detzner), purporting toact pumant
to the(non-approved)1909Agreement, concluded a Demarcation AgreementT .his
second Agreement recorded thedemarcation of the boundary fmm Yolato the
Cross River,the boundaryking markedby a seriesof BoundaryPillars, fromBP
1 near Yola toBP 114 on the Cross River (below, paragraph 19.59). This
demarcated boundary thus covereda large part of the boundary delimited in the
March 1913Treatyconcluded one monthearlier.
18.47 Thus at the very time at which theNugentIDetznerBoundary Commissionwas
demarcatingthe boundarybetweenYolaand theCrossRiverpursuantrothe (non-
apprwed) 1909 agreement, the two States were negotiating and agreeing. in
London,to a Treatydelimitingthe boundarycoveringthat saarea andcontinuing
it downto the sea. It seemsthat the twoStates wofthe viewthatthe boundary
South of the Cross River, to the sea, had been setüed andemarcated by the
boundary commissionof 1905-1906 asrecordedin the Pmtocolsignedon 20 April
1906(butnot approvedby bothgovemments:above,paragraphs8.9-8.1 1),and that
the aiignrnentof the boundarynorthwardsfrom the Cross River to Yola in the
equally non-approved1909 "agreement",which built upon the provisionsof the
non-approved 1906 Protocol,was in practice sufficientlya matter of common
ground to justify its demarcationon the basis of that text. even though, strictly
speaiung,it had not been formallyapproved and hadthus not entered into force.
By riegotiatingthe Treatyof 11March 1913,whichcloselyfollowedthe proposed
1909text for the stretch of boundary betweenYolaand the CrossRiver, the two
States in effect belatedly gave a legai basis for the NugentlDetznerBoundary
Commission'swork whichwasrecordedin their Demarcation Agreement signea d
monthlater. ThatAgreement(subjectto someminorcorrections) was approvedby
the two g6vemmentsby an Exchangeof Noteson 6 July 1914(NC-M 329).18.48 Because of the close relationship in practice between the non-appmed 1909 text
and' the Yola-Cross River provisions of the Treaty of 11 March 1913, the
demarcation of the Yola-Cross River stretch of boundary recorded in the
Demarcation Agreement of 12 April 1913 was in substance the effective
demarcationand more precisedelimitationoftheequivalentprovisionsoftheMarch
1913 Treaty. As the later treaty to be concluded and approved, theDemarcation
Agreementof 12 April 1913 (NC-M 46) is, for the stretchof boundary coveredby
it, the govemingtext.
18.49 This does not apply, however,to the stretchof boundary betweenthe Cross River
and thesea. The Demarcation Agreementof 12 April 1913did not apply to that
stretch, in relation to which the Treatyof Il March 1913 stalone.
18.50 As regardsthe northern stretchof boundarycoveredbytheApril 1913Demarcation
Agreement, from a point to the south-westof Yola(at pointE on Map 56 inthe
Atlas to a point about half waybetween YolaandBakassi where Boundary Pillar
64 waslocated (Pbint F on the sketch map), the boundary dernarcated by that
Agreementis no longer directly relevantothe Nigeria-Cameroonboundary, since
it relates to temtory which, following the referendum in 1961, is now wholly
within Nigeria. From Boundary Pillar64 (point F) south-westwardsto the last
Boundary Pillar covered by the April 1913 Demarcation Agreement (Boundary
Pillar 114 @ointG)) the boundary as demarcatedunder that Agreementis still the
current boundary betweenNigeria andCameroon.
18.51 Three points about theAnglo-German Demarcation Agreement of 12 April 1913
need to be noted:
(1) the Agreement is no longer in force. It wasnot revivedafter the First World
War under Article 289 of the Treaty of Ve~illes 1919 (above, paragraph
8.53). As a treaty it was abrogated. However, in accordance with weii-
established niles of international lawsoifar as a boundary was lawfully
. . establishedby that Agreement, the boundary survisntil lawfullychanged
by somesubsequentact bindinguponthe Statesconcerned(paragraph8.54);
(2) Cameroondid not, therefore,succeedto the Agreementitseland
(3) moreover,in so farasCameroonsucceededto the boundary asdelimitedby
the Agreement, Cameroondid not do so on ana* Independence in
1January 1960,sinceat that time the westernboundaryofthe southernpart
of the British-adrninisteredCameroon Trust T&torywas stiIan inteml
administrativeboundwy,and after Nigeria becameindependenton 1October
1960 that boundary was the boundary between the Tiust Temitoryand
Nigeria. The boundary as delimitedby the April1913 Agreementoniy
became an international boundary after the Southem Carnerwn 'Ihist
Rrritory became part of Cameroon in 1961 followingthe holding of a
referendurnwhichsupportedthat result.
(v)Anglo-German Tkeaty of11 March 1913
18.52 The April 1913 DemarcationAgreementdid not cover the whole boundaryhm
Yolatothe sea, but oniy as far as BP 114, which was located at a bend on the
CrossRiver some 140kilometres(87 miles)iniandfromthe W. Accordimglyt,he
final southwardstretch of the land boundary to the North of Bakassi main.
l
govemedby the termsof parts of the Anglo-GermanTreatyof11 March 1913, as
far Southas prescribed by ArticlXVII (see above, paragraph8.55 et seq.).
Fher South,the boundary delimitby thatTreatypurportedtoaffecttheBakassi
area.and is considerediPart1of thisCounfer-Memonal.
I
18.53 Thesamethreepointsneedtobe noted aboutthe Treatyof 11March 1913 as have
I
been noted about the DemarcationAgreementof 12April 1913(above,paragraph
18.51),namely: (1) it is no longer in force, havingbeen abrogatd pursuantto Article 289of the
Treatyof Versailles1919;
(2) Cameroon did not, therefore, succeedto the Treaty itself; and 1
(3) in so far as Cameroon succeeded to the boundary establisbydthe Treaty,
1
Cameroon did not do so on attaining Independenceon 1 January 1960, but
only later.
(vi)Nigeria accepts in principle the delimitaofthe land boundary in accordance
with the instruments referred to
18.54 Nigeria accepts in principle the course of the boundary as described by the
insûuments which are principally relevtothe delimitationof the boundary and
'
relied onby Cameroon (referredto in paragraph 18.28abow). Dunng the course
of the Preliminaty Objections phase of the present case, Nigeria hadoccasion to
state that (it being understood of course thatere wasan adrnitted dispute as
regards the LakeChad and Bakassi areas whichhad implications forthe boundaty
in those areas) the established boundarywas accepted in pnnciple by Nigeria, and
that there was, so far as Nigena was concemed, no dispute between Nigena and
Cameroon over the land boundaty as such between Lake Chad and Bakas~i."~
Notwithstandingthe view expressedby the Court in paragraph85, 87 and 93 of
itsJudgmentof 11June 1998on Nigeria'sPreliminaryObjections, thatremains the
position: thereinspnnciple no disputethat the delimitationof the lad boundary
between LakeChad and Bakassiis to be carried out on the basis of the instruments
invokedby Cameroon.18.55 Whiie it is true that Nigeriaclaimstitle tothe BakassiPeninsulaand to Dzirakand
certainadjacentislands,the Court, in itsJudgmentof 11 Jun1998on Preliminary
Objections,
"doesnot findpersuasive the argumentofCameroon thatthe challenge
by Nigeria to the validityof the existingtitles to Bakassi,Darak and
Tipsan, necessarilycalls into question thevalidity as such of the
instrumentson which the courseof the entireboundary hm the tri-
point in LakeChadto the sea is based..."(paragraph89).
ThatCameroonargument,as willnowbeapparent,wasindeed withoutfoundation.
As regards theland boundarybetweenLake Chad and Bakassi, Nigeriadoes not
cal1into question the validity as such of the instrumentson which that land
boundaryis based.
18.56 Nigeria, of course, was not called upon at the stageof hliminary Objectionto
setoutitsargumentson themeritsofthe casebroughtagainstit by Cameroon. The
Coun recognisedthat
"Nigeriais entitled notoadvancearguments thatit considers arefor the
merits at the presentstageof the proceedings"(paragraph93).
Nor wasNigeriacalled uponto indicateitsargumentsas tothe legalbasisonwhich
the boundaryrests when answeringa question about thegeographicaIco-ordinates
of the boundary asthey result from the texts relied on by Cameroon,especially
since those texts - as Nigeria pointed out in its answer (and see above,
paragraph18.5) - did not describethe landboundary by referenceto geographical
CO-ordinates.
18.57 Notwithstandihgthe absenceof any suchargumentson thepart of Nigeria as to its
positionon thelegalbases of the boundary, theCourt felt abltoconcludethat "a dispute nevertheless exists between thetwo Parties, at least as
regards the legal bases of the boundary" (ibid.).
Now that the proper time has arrived for Nigena to set out its position on the
merits, it is apparent that this was a conclusion which does not reflectNigeria's
position. As stated, and leaving aside the Lake Chad and Bakassi questions,
Nigena in principle accepts the course of the boundary as delirnited in the
instrumentsprimarily concerned, and in pnnciple acceptsthe vaiidityof al1of them
as the basis for theland boundary betweenLake Chad and Bakassi.
18.58 Againstthat background, it is nowpossible to consider the four sectorsof the land
boundary in more detail. Before doing so, th= further preliminary and general
pointsneed to be made.
(a) Absence of geoeraahical CO-ordinates
18.59 As Nigena stateddunng the Preliminary Objectionphase of the case, and as noted
above (paragraphs 18.5 and 18.56), none of the principally relevant instmments
delimits the boundaryby reference to any geographicalco-ordinates (apart from a
single reference inArticleXVI of the Anglo-German Treat of 11 March 1913).
They al1delimit the boundary only by referencto various geagraphical features:
even the relatively detailed Anglo-German DemarcationAgreement of April 1913
made no reference togeographical CO-ordinates.The essentialquestionin the case
is accordinglynot whether the partiesagree to the geographical co-ordinatesof the
various points along the land boundary (which are neither specified in the
principally relevantinstmments, nor proposedby Carneroon in its Applicationsor
Memorial (except for the'alleged location of the mouth of Ebeji River: but see
paragraphs 18.7(1) and 19.40-19.43), but whethecthe land boundary between
Nigeria andCameroon between LakeChad'and Bakassi is "specifiedefinitively"
. by the termsof theprincipalinstruments referredtu. Cameroon widently believes this tobe so. In the final submissions in itMernorial (at paragraph 9.1)
Carneroon,having requested initsAdditionalApplicationthat the Coun should
"specifydefinitively"the boundarybetweenLakeChadand thesea, asksthe Court
ui adjudgeand declarethatthe course of that land boundaryfolbws the courseset
out in the relevant instruments, and without referetoeany geographicalco-
ordiites (savefor the allegedlocationof the mouthof Ebeji River). Foritçpart,
Nigeriain principlecceptsthe boundary in al1four sectoas delimiteby those
instruments. However,forreasonswhichwillbe explained,Nigeriadms not agree
that the terms of those instrumentsare sufficinnthemselvesto constitue the
"definitivespecification"of the land boundaryfor whichCarneroonhas asked.
(b) M~Dscales
18.m Severalofthe instruments whicdelimittheboundaryare accompanied bymapson
which the boundary as delimited is delineatedor bf referenceto whkh the
boundaryis described. In some cases, the scale onwhichthemap waspqared
is unsuitablefor accurateboundarydelimitationor delineatioOne of the most
signifiant mapsin this contextis the map preparebythe Gerrnan carbgrapher
Moisel, whichwasused as the basemap for severalofthedelimitationagreements.
At a scaleof 1:300,000, its abilityto recordrelevantfeaturesaccuratelyenoughto
serveas a sufficientlydetailedboundarymapwasliiited. Furthemore, its content
depended on reports from Germantravellers. Ifno travetlershad penitrated a
particulararea, that area wouldeither be blank on the mapor be representedin a
very generalisedandoftenincorrectway. Evensmallerscalemapshaveben used.
Thus Article3.2 of the Milner-Simon Declarationattachesa map "illustratethe
descriptionof theabovefrontier", and this is a map on a 1:2,000,000scaie (see
above, paragraph 18.33). The boundary defined by the Thomson-Marchand
Declarationwastraced on an annexedmap, whichwas on a scale of 1:1,OQ0,000.
Itrnv alsobe notedthat theAnglo-GermanAgreement of11 March 1913 referred
pmim to, and in ArticXXX confirmed,maps signedon 6 October 1909 which were on a 1:250,000 scale, and also referred(ArticlesXnl, XVI - XVIII)to two
sheets of senes T.S.G.S. 2240 which was on a scale of 1:250,000. Even the
current senes of maps used officiallby Cameroonfor borderdelkation is on a
scale of1:200,000. None of these maps is at a scale whichis adequatefor the
technicalpurposes of boundary demarcation. By contrast, the surveyorscanying
out the demarcationof the southernpart of theboundary between BP 114 andthe
Akpa Yafe in 1905-6 producedtwo maps at a scale of 1:100,000, while those
engaged inthe demarcationbetweenYolaand BP 114 which endedin April 1913
producedeightmaps at a scaleof 1:125,000. Althoughthesemapsare not ideal,
they can provide sufficient information toallow recoveryof the boundarypillars
and identificationof the well-definednaturalfeamrused in the demarcation.
18.61 However, itis more appropriate where possibleto der to rwoseries of 1:50,000
maps, onepmduced between1965and 1969 fortheGovernmentof Nigeria by the
Directorate of Overseas Survey (a technical unitof the British Goverment's
Ministry of OverseasDevelopment)which operatedbetween 1946 and 1985, and
the otherproducedbytheCentreGéographique NationalofCarnemoninthe 1970s.
The first senes covers mostof Nigeria, but leaves a gap on the international
boundary between 6" 30' N and 5" N. On none of this senes is a boundary
marked: it was not alwaysthe practice of the Directorate of Overseas Survey
("DOS" )o identify intemational boundarieson its map~ing.~~ Nigeria is in
possession of some of the second senes of maps, but has no knowledgeof the
extentof itspresent coverage.The intemational boundaryis markedon thisseries,
albeit with theoccasionalcaveatthat it is "indefiniteor badly determinedon the
ground".
18.62 At this1:50,000scale, naturalfeaturesrelevantto the delimitationof theboundary
canbe identified(althoughit mustbe notedthatat thetimewhenthe boundarywas
Iso(save fovcry smascalsketchmapsfoming panofthc lcgendof cach shshowingingenerthe area
cwered bytheshcet) delimited in the various agreementssuch maps did not exist, and thereforethe
co~~espondencebetween featuresdescribed in an older delimitatioand features
shown on modem maps is not alwaysstraightforward to establish). Maps on a
1:50,000scale wouldbe technicallyappropriate foranydemamationwhichmight
takeplace: such a scalewouldnormallybe used for sucha purpose. Accordingly,
in explainhg certain aspectsof the boundaryin this Counier-Mernoriaf,requent
referencetotheseDOS (and, to a lesser extent, CGN Camemon) 1:50,000 maps
wiil be made, as themost technically appropriatemaps availabfefor the purpose,
whereverthe yxist. Between6'30'N and 5ON, referencewill bemade toNigerian
maps at scales of 1:100,000 and 1:125,000 and Russian maps at a ale of
1:200,000.
(c) Bomciarv 'incidents'
The land boundarybetweenLake Chad and Bakassi isabout 1,600 lum. (1,000
miles) long. Formuch of its lengthit mns throughdifficultcountry and is largely
undemarcated. It is thereforeunsurprising that over the years there have been
occasionalincidentsalongthis long stretchof boundary,in which nationalsof the
tm States, includingsometimestheir officials,have been perceiveby theother
State ashavingtrespassed across theboundary. These so-calledincidentsmaybe
relevanto the presentproceedingsin tworespects:
(i) they may be said to showby their very occurrence that thboundar iyin
disputein specificareas, and
(ii) theymaybe saidto giverise to intemational responsibilon thepart of the
Stateresponsiblefor the transgression.
18.63 Questionsof StateResponsibilityare consideredfunher in Part V of this Counrer-
Mernorial. Asregardsincidents whichmight be relemnt as possible evidence as to the existence of a dispute over the boundary, Nigeriarecalls that the court, in
its Judgment of 11 June 1998 on the PreliminnryObjecrions,considered the
significanceof boundary incidentsfor the scope of any dispute aboutthe boundary
as a whole. The Court, having formed the view chat(apart from the position in
respect of Lake Chad and Bakassi) there existed a dispute with respect to
Tip~an,'~'held that:
"Al1of these disputes concem the boundary between Cameroon and
Nigeria. However, given the great length of that boundary, which
runs over more than 1,600 km from Lake Chad to the sea, itcannot
be said that these disputes inthemselvesconcem so large a portion of
the boundary that they would necessarily constitute a dispute
conceming the whole of the boundary" (paragraph88).
The Court continued:
"The occurrence of boundary incidentscertainly hasto be takeninto
accountin this context. However,not everyboundary incidentimplies
a challenge to the boundary. Also,certainof the incidentsreferredto
by Cameroon took place in areas which are difficult to reach and
where the boundary demarcationmay haveken absent or irnprecise.
And not every incursion or incident alleged by Cameroon is
necessarily attributable to persons for whose behaviour Nigeria's
responsibility might beengaged. Eventakentogetherwith theexisting
boundary disputes, the incidents and incursionsreportedbyCameroon
do not establishbythemselves theexistenceof a disputeconcerningal1
of the boundary between Cameroonand Nigeria" (paragraph90).
18.64 In the light of the foregoingobservationsin this Chapter, Nigeria willin the next
Chapter considerthe courseof the boundary asit resultsfrom the principalrelevant
instruments.
1 "' paras85. 87: matterwhichwillbcconsidcndfunhcr in Chapar19-seeparas. 19.73-19.76 CHAPTER 19
THE COURSEOF THE BO-YA. Introduction
19.1 As statedin Chapter 18 of this Counter-Memonal (seeparagraphs 18.54 and
18.57),Nigeria acceptsin principlethe delimitationof thbundary as set out in
the instrumentswhich arep~cipally relevanttothedelimitationofthe presentland
boundarybetweenNigeriaand Cameroonbetween Lake Chad and Bakassi.
19.2 Those instrumentsdo not, however,constitutean adequate"definitivespecification"
of the landboundary,as sought byCameroon initsAdditional Applicationin these
pmeedings. There are the principalreasons:
(1) Cameroon's.own official maps show a boundary which is in places
demonstrably inconsistentwiththeboundaryasdelirnitedinthoseinstruments
(paragraphs19.5-19.22);
(2) the termsof those instrumentsdo not reflectlongestablished practicesand
local agreementswhichhave varied theland boundary as delimiŒd inthose
agreements(paragraphs19.23-19.38);
(3) in manyplacesthose instrumentsdescribethe landboundaryin tenns which
give rise todifficultywhenthe anempt is madetoapplythem on the ground
(paragraph~19.39-19.53).
19.3 It isprincipally for these reasons that Nigeria qualifieitsacceptance of the
delimitationof the boundary by the relevant instrumentsas an acceptance "in
principle". In order to settle the boundaryonce and for al1("definitively"),it is
essentialtoexamine thete- of the instrumentswith somecare, in the light of
current realities. To assert, as does Cameroon,that their termaresuficient to
"specifydefinitivelynthe land boundary is incorrect. The situatiois,in truth,
much more complex than Cameroon seems tobe awareof. Each of the three
reaso nsven in paragraph 19.2 for a more careful analysisof the situation than Cameroon has provided will now be considered in nim. Thereafter, certain
particular pointson each of the fourSectorsof the landboundary willbe examined.
19.4 Map 57 in the Atlas identifies, in a simplifiedmarner, the locationsof each of the
boundary areas which are the subject of specificconsideration in this Chapter.
B. Cameroon's own maos show a boundarv whichis in daces demonstrably
inconsistent withthe boundarv as delimitedin the orinciodlv relevant instruments
19.5 Although Cameroon has requested that the Court should "specifydefinitively"the
land boundary between Lake Chad and Bakassi, Camemon has nowhere itself
offered its own "definitive specification" of the boundaras a whole, either in
words or CO-ordinates,or on maps. Cameroon has in effect chosen merely to
repeat,by reference,the tems of the delimitationsmade in each of the principally
relemnt instruments(see above, paragraphs 18.2-18.6).
19.6 The Cameroon Govenunent, however, has published official 1:200,MH m)aps on
which the course of the boundaxy,as seen by Cameroon, is depicted. Cameroon
has chosen not to submit these map sheets as part of the case presented in its
Memonal,althoughCameroonhas includedcopiesmuch reduced KIA4 size,which
for al1material purposes are illegible. In addition, Camemon is known to have
published 1:50,000 maps coveringat least part ofthe boundary, buthas chosen not
tosubmit these maps in any form. In the absence of any other officiaiindication
in the present proceedings of Cameroon's views as tothe actual course of the
boundary on the ground, Nigeria considers it necessary to bringcertain of these
maps to the Couxt's attention, as representing the best available evidence of
Cameroon's official position. They demonstrate that, while Cameroon seeks a
"definitivespecification"of the land boundary in terms ofits delimitationin the
principally relevantinstruments,Cameroon'sofficialmaps of theborder areas show
a boundav line which is in places manifestlyinconsistentwith the tems of those'
. . delimitations. From this it must followeither that Cameroon'sofficiai mapsare
incorrect, or that, if tare correct, Cameroon is claiming a boundary line at
variance with theternis of the instruments which Cameroonrequeststhe Counto
speciQ as establishing the boundary. It will be sufficientto give four clear
examplesof such departureson Cameroon'sofficialmaps fromthe boundary line
asdeliiitedin theinstrumentson which Cameroonrelies.
19.7 The firstexarnple,in the Kamalearea, relates to paragraphs(23) and (24) of the
Thomson-Marchand Declaration1929-1931. Theyread:
"(23)Thence passingHumunsion the French side rhe boundary lies
betweenthe rnountainsof Je1and Kamale Mogde2" on the French
sideand runningalongthe watershed.
(24) ThencepassingHumsiki, includingthe farmlandsof the valleto
theWestof thevillage on the Frenchside,theboundarycrosses Mount
Kuli."
It is clear from thistextthat between Mogand Humsikitheboundarymust"nin
1
...dong the wdtershedn.
I
1 19.8 The partof the DOS 1:SO.O map sheet 136SWat Map 58 in the Ath (actual
sk) showsthe areathroughwhich this part of the boundary runs. The locations
of Mogode and Humsiki (appearing as Roumsiki) are shown. nie lim of the
watershedbetweenthosetwolocationsis clearlydiscemiblefromthe contoursand
otherfeaturesshownon the map: it is indicateby a bmkengreen line.
ItshouldbCn~ltîhathtexhereshoulnad "...rnountasfJe1andKarnacnrhBritishsidtaMogodc
on the Frcncbside...". the wods in iialicshavingkenomittein crrorSecC.O.Confidcnûal
PrïntAfrica(West)No.1049. No. 74, 82 (screferenccpara.19.53belowanAnncx NC-M 335).19.9 Map 59 in theAtlm is part of Cameroon'sofficia11:50,000 rnapsheet NC-33-XIV-
4a coveringthe sarne boundary area. The boundary lm (marked by a blue line),
which itpurports to delineate,manifestlydoesnot followthe watershed,as required
by the terms of the Thomson-MarchandDeclaration,but insteadfollowsa line some
one totwo kilometres tothe West(i.e. into Nigeria), further downthe escarpment.
Althoughthe boundary is marked on the mapas "indefiniteor badly determinedon
the groundn, the displacementof the boundary from the watershedis so great that
it cannotbe claimed that it is representing anapproximate versionof the watershed.
There is nojustification forthis line in the termsof paragwphs (23) and (24). Also
marked on that map is a broken green line correctlymarkingthe warershed. It can
clearly be seen that the Cameroon line departs,without anyjustification, from the
watershedline prescribed bythe Thomson-Maxhand Declaration.
(ii) Secondexample:Budunga
19.10 The secondexample,in the area of Budunga, relatestottiterms ofparagraphs(33)
and (34) of the Thomson-MarchandDeclaration. These read:
"(33) Thence a line starting from Beacon 6, passing Beacon 7,
finishingat the old Beacon 8.
(34) Thence from this mark 8 placed on the left bank of the Mao
Youwai,a small stream flowingfrom the west and emptyingitself into
the Mayo Faro, in a straight line mnning towardsthe south-westand
reaching the summit of WamniRange, a very prominent peak to the
north of a chain of mountains extending towards the Alantika
Mountains, and situated to the east of the old frontier mark 10."
It is clear from this descriptionthat the.key pointson thii stretchof the boundary
are Beacons6, 7 and 8, and the summitof ~kni Range.'The Declaration clearly
requires the boundary tojoin these four points,ansuggeststhat Beacons6, 7 and
8 lie in a straight liAn inspectionin late 1998rwealed that Beacon6 ha$been destmyed,thoughits locationin thepositionsh&n on Map60 in theAth canbe
deduced with reasonableaccuracby referenceto thcours ef the Maio Hesso,
near its confluence with the MaioBudunga. Beacon 7 uas identified. though
damaged,in thepositionshown. Beacon 8 hasbeendestroyed,but itspositionhas
beenextrapolatedfromtheintersectionofthe extrapolatedightlinfromBeacon
6 to 7 and the small stream issuingfrom Karin Pass below TonbiMountain.
The locationsofBPs 7and 8 are identifiedby cairn of Stones.
19.11 Map60intheAtlarisanextractfromDOS1:50,000mapsheets197SEand218NE
(actuask), showingthe area through whichthis part thehundaryruns. with
the locations of thereeBeacons, the summit of theWamni Range and Tonbi
identified. ThethreeBeacons and Warnn ire joined by a bmkpn green line,
representingthe requirementsof the Declaration.
1
19.12 Map 61 in the Atlas is a composite partsof the Carneroon1:200,000 maps
GAROUAand TSCHAMBA(enlarged x4 to 1:50,00 of)the same area. It
purportsto delineatethisstretchofbound-tseethe blulime.It laves the Maio
Hesso some 700m. to the Northof the presumedpositionof BP6and thenfollows
an alignment to the sumrnit oWamni Range (where it correctlrejoinsthe
watershed).This alignmentis trebly defective. First, the line dces notgo through
the establishedlocationof Beacon7 but through thesumit of TonbiMountain;
second, althoughthe Declaration identifiesBeacon king on the left bank of
a small stream (the Mao Youwai)and theCameroonlineruns IOa point on that
stream,that Cameroon point displacesBeacon8 som2.5h. upstreamhm the
correct location of that Beacon;andhird, while the Declaration requires the
boundaryto follow"a straight linerunningtowardsthe south-west"fmm that point
to the summit of the Wamni Range, the Cameroon fine, as a result of its
displacementof Beacon8, reachesthat summitby wayofa cmked linewhichruns
virtuallydue South.19.13 Map 62 in theAtlm is the map referredtoin paragraph19.11, shwing the extent
towhich theCameroon blue linedepartsfmm the brokengreen line.
(ii Thirdexample:MountKombon
19.14 The thirdexample concem the reference to Mount Kombon, and involvesa
material ambiguity in Cameroon's submissions. The name hhmbon is, on
Carneroon's 1:50,000map NC-32-XVIII-3a-3b(1955; Arlm, Map 63). appliedto
two diierent hills 2.5kms. apart hm each other, neither of which is apparently
the peak referred to in the Thomson-MarchandDeclaration, one being two
kilometresnortheast of that peak and the other four kilometresEast of iLZa3It
wouldappearthat the peak inquestionis a hi11 1,660metreshigh, asshownon the
Cameroonmap referredto. It isrecognisedthat Hill 1660is not on a bearingof
17Ofmm the cairn (as stipulated in paragraph (60) of the Thomson-Marchand
Declaration),and that the hill which is on tkaring isthe hill 3.5 kilometresto
the East of Hill 1660; but that hill, unlike Hill 1660, is not othe watershed,
whichis the dominant requirement for thelineoftheboundary,nor isit "justtothe
east of the visible sourceof the Maio M'fi" as stipulatedby paragraph (61)
(whereasHill 1660 meetsthat requirement). In the interestsof clarity,the use of
the term "Mount Kombon" is therefore better avoided, and in this Counter-
Mernorialthe peak in questionis referredtoas "Hill 1660".
IShouldbc notcdthattherelevantpcakis noi idenitherelevaparagrap(22)oftheMilncr-Simon
Dcclarati1919.althougit locateddong thcwatershspecificdintparagraph.19.15 The fourth example,in the area of Bissaula-Tosso,reiatesto the temofpart of
the SecondSchedule to the Nigeria(ProtectorateandCameroons)OrderinCouncil,
1946. The relevantpart reads asfollows:
"...thence a straight line to the highest point of Tosso Mountain;
thencea straight lineeastwardsto a pointon main Kentu-Bamenda
roadwhere it is crossedby an unnamedtributaryof the RiverAkbang
(Heboroon Sheet E of Moisel'smap on Scale 11300,000) -the said
pointbeing markedby a cairn; .."
Itis clear from this description thatthe boundaryline must go in a straight line
fromMountTossoto the pointof intersectionof the tributaryof tRiverAkbang
(Heboro)and theKentu-Barnendaroad.
19.16 Map 64 in the Arlmis part of thDOS 1:50,000map sheet 293NE (actualsize)
showing thearea through which this pan of the boundarnim. On the map the
two branches into which the Akbang (Heboro) splits are marked, one branch
running South (marked in green dots) and the other northwest (marked in blue
dots). Also marked (by a broken black line) is the Kenru-Bamendaroad. (The
reason that the maphas a break inits delineationof the road (shownas a bmken
line)near the crossing pointis that in that locationthrougha standof trees,
and was therefornot visible on the aerial photograpto thecartographerwho
would therefore have decided that he could not assumeits existenceor precise
course.) The GPS positionof the cairn referredto in the Order in Councilis also
shown.
19.17 Only the southern tributary crossesthe Kentu-Bamendaroad in the vicinity of a
boundarycairn. There is no evidenceon the mapof any other sueamcrossingon
this stretchoftheroad (this has been confirmedby anexaminationof the aerial
photographyfromwhich themap wasderived). TheOder In Counciirequiresrhat the boundary ninin a straightline from Mount Tosso tothe point of intersection
of the road and River. Mount Tossois shownon the nextmaps.
19.18 Map 65 in the Atlas is a part of Cameroon 1:200,000rnap sheet NKAMBE
(enlargedx4 to 1:50,000). On this map, the boundaryline assened by Cameroon
ishighiightedin bluefollowingthe northwesterntributary itssource,thenturning
Westalong a ridge to its intersectionwith the Kentu-Bamenda roaand thence in
a straightlineo MountTosso. It willbe notedthat the boundary line asshownon
the Cameroon map dws not cross the road ata point ai which the road intersects
with ariver, which is an express requirementof the languageused in the Schedule
to the Oder. It cannotdo so, becausethe northwestembranch of the River does
not cross the road at all, but has its source onekilometreto the East of the road.
That line onthe Cameroonmap has nojustificationin thetenns ofthe Scheduleto
the Oder.
19.19 Map 66 in the Atlas is a compositeextractwhichcontainspartsof DOS 1:50,000
map sheets293NW and 293NE (actual site). On this extmct, the AkbangRiver
and itssouthern tributaryare highiighted ina broken greenline, whilethethern
tributaryis highlightedin blue. Theextractalsoshowsin brokengreena linefrom
the stream crossingon the Kentu-Bamendaroad straightto the mit of Mount
Tosso. Also shown,in blue, is the line takenfmm the Cameroon1:200,000map
of thesame area. It purports to showthe boundary,incorrectly,as followingthe
northwestem (not thecorrect southern)tributaryofhe Akbang(Heboro),andthen
mnning along a ridge for 1 km. beforecuttingthe Kenhi-Barnendaroad although
not at a tributary some sixkilometres North of the point ar which the southern
tributary crosses that road, beforehen proceeding ina straight line to Mount
Tosso.
19.20 Thus, in al1theseexamples,the termsofthe delimitationaremanifestlyat variance
with the line of the boundary asdrawn on Cameroon'sown officialmaps. This
demonstrates that Cameroon itselfdoes not in practicetreatthe delimitationin the reievantinstrumentsas the definitivespecificationof the boundary,but for its own
reasonsis readytodepartunilaterallyfromthosetenns indelineatingthe boundary
on its officialmaps.
I
! 19.21 It will also be noted that al1four examplesgivenshowCamemn, whollywithout
jusacation, drawingthe boundaryline well on the Nigerianside of the boundary
as delimitedby the ternis of the relewnt instrument. In other words,these are
map-makingincursionsby CameroonagainstNigeria. in so fàr as the mapsgive l
risetoany dispute as tothe course of the boundaw the disputewould in no way
be caused by Nigeria but would be caused entirely by Cameroon unjiistifiably
ignoringthe termsof the relevantboundary delimitation.
19.22 It isalso to be notedthat, apart frorrirepresentationon Cameroon'sofficia1maps,
the termsof Cameroon's submissions(above,paragraph18.4) mat as the mouth
of the Ebeji Rivera locationwhichhas no basis inthetenns of the Milner-Simon
on Thomson-MarchandDeclaration. Thematter is examin4 below,at paragraphs
19.40-19.42.
C The terms of the orincioallv relevant instruments do not take account of long-
estabrishedoractices orlocalameements which have varied theland boundarvas
deümited in those instruments. or locailv amêed interoretations of unclear
provisions of the instruments
19.23 It isa strikingfeatureof a numberof the internationalagreementswhichover the
years havedelimited the Nigeria-Cameroon boundarty hat theyhave in terms not
been definitive,but haverather been indicative,leavingthe partieto adjust the
boundary as may be appropriate to the local circumstances. There are three
international agreements whichare principally relevantto the presekt boundary
betweenNigeria andCamemn -the Anglo-Gerrnan Treatyof March 1913, the Anglo-Geman DemarcationAgreementof~~n11913, and the Thomson-Marchand
Declaration 1929-1931(amplioing the Milner-SimonDeclamion 1919).
19.24 Article XXVIII of the Anglo-Geman Treatyof March 1913provided:
"In marking out the boundary the representatives of the two
Govenimentsshall have the power, subject to subsequent approvalby
the two Govemments, to make minor deflections from the boundary
herein laid down, such deflectionsnot exceed 1U miles (2 kilom.)
in cases where it is considered desirainorder thatfarmsshall not
be separated fromthe villages to which they belong."
19.25 The Anglo-Geman Demarcation Agreement of Apnl 1913 contained no such
provision for variationsto the boundary as delimited in the Agreement.
Such a provision was, however, indirectly incorpora& in the arrangements
establisheby the Thornson-MarchandDeclaration 1929-1931. The Exchangeof
Notes of 9 January 1931approved theterms of the Declaration, andagreed "that
theactualdelimitationcan now be entrustedto the boundary commissionenvisaged
for thisurposeby Article 1of the Mandate". That Article establishedthe British
and French Mandates for the Carneroons by reference to the Iine fixed by the
Milner-SimonDeclaration 1919,the text of which wasannexedto each of the two
Mandates. That Declaration, in Article2.1, allowedfor minor modificationsto be
made to the frontierine prescribebythe Declaration, and this wasreinforcedby
Article 1 of the Mandate which similarly allowed for such modifications.
By
enausting the demarcation of the Thomson-Marchand lm to the boundary
commission establishedby Article 1 of the Mandate,thtwo Gwemments agreed
that that commissionwouldapproach its task on the basis prescribed byArticle 1.19.27 The terms of the twoprovisionsreferredto are'as follows:
Milner-Simon Declaration
"Article
1. It is understoodthat at the tirne of the local delimitatithef
frontier, where thenaturalfeanues to be followedare not indicatedin
the above description, the Commissionersof the two Govemments
will, as faras possible, but without changingthe attributiof the
villagesnarned inArticle 1, lay downthe frontierin accordancewith
naturalfeatures(rivers,hills or watersheds).
TheBoundaryCommissioners shallbe authorisedtomakesuchminor
modificationsof the frontierlinasmay appear to them necessaryin
order IDavoidseparatingvillagesfrom their agriculmrallands. Such
deviationsshallbe clearly markedon specialmaps and subrninedfor
the approvalof the two Governrnents. Pending such approval, the
deviations shallbe provisionallyrecognised andrespected."
Mandates(bothin this respect in identicalterms)
"Article 1
...
This line may, however,be slightlymodified by mutual agreement
betweenHis BritannicMajesty'sGovernmentand the Governmentof
the FrenchRepublic wherean examinationof the localitiesshowsthat
it is undesirable,either in the interestsof the inhabibynceason
of any inaccuraciesin the map, Moisel 1:300,000, annexed tothe
Declaration,to adherestrictlyto the line laiddowntherein."
19.28 Other instruments relating to the boundary containing sirnilar provisions for
variationsoallowfor localckumstances are:
(1) Anglo-GermanAgreementof 1890 (NC-M26): Article VI provide tdat
relevant boundary lines traced in earlier pmvisions are "subject to rectificationby agreementbetweenthe twoPowers,in accordancewith local
requirements" (seealso'below, paragraph19.100).
(2) Anglo-Geman Agreement of 15 November 1893 (NC-M28): Article III
providedthat
"Any pan of the lineof demarcationtracedin this Agreement,
and in the preceding Agreementsabm q~oted,'~~ shall be
subjectto rectificationby agreementbetweenthetwoPowers."
TrusteeshipAgreementfor British Carnemns WC-M56): Article 1, after
(3)
defining the frontier by reference to the Milner-Simon and Thomson-
MarchandDeclarations,continued:
"This [frontier] line may howeverbe slightly modified by
mutual agreementbetweenHer Majesty'sGovernrnentin the
United~in~d'omand the Governmentof die French Republic
whereanexamination of thelocalitiesshows that itisdesirable
inthe interestsof the inhabitants."
19.29 Thesevariousprovisions,takentogether,showclearlythatthe Britishand German,
and later Britishand French, Governmentswereavarethat, howevercarefullythey
might prescribeboundarylines on thebasis of the best availablemaps, those lines
were likely in practice to prove less than perfect in view of the inevitable
inadequacyof the mapsavailableat that time,the dicult natureofthe terrain,and
the variable social structuresof the communitieswhich might be affectedby the
drawingof such lines. They foresaw, and madepmision for, the adaptationof
their prescribedboundarylines as maybe necessary tomeetlocalcircumstances.
Thcscarethe agrccrnenreferretoin thcprcamblc,narnel"îhcAngio-GennaA ngreemennofthe 29th
ApriU7thMay.1885, 27thJulylZnAugust,1886, 1sJuly,1890and14thApril. 1893". 19.30 Quite apart from suchprovisionsfor variationof agreedboundary Iinesexpressly
wrinen into vanous of the relevantinternationaltexts, it is a cornrnonoccurrence
for States,at aocallevel,to establishby long-standing uor bylocal agreement
(whether formal or infonnal) practicable boundarieswhicareappropriateto the
local conditions even thoughthey might varythe boundary lines laid down in
forma1 agreements. The possibility of this occuning was accepted by the
ArbitrationCourt (Lord McNair, President) in the Argentine-ChFmnrierCase
I @Q PalenaArbitrarion)in 1966(Int. Law Rep., vol. 38, p.10). inrelationto a
disputed frontierareaChile introduced evidence (whichbecame known as "the
fulfilment material") designed to show effectiveChilean administrationover it.
Argentinssubmittedthat thismaterialwas irrelevant. The Court didnot agreethat
thematerialoughtto be excludedas completelyirrelevant.
"This isbecause,in the Court'sopinion, suchevidenceis relevanto
the questionof senlement- whether forinstancewhat ihasxttied in
1902-0 3as since become unsenleci or bas become seirled in n
differenfwrry,and whether too 'the fulfilmentmateriai' throwsany
light on the questionwhether whatwaçleft unsertledin1902-03has
sincebecomesettled" (atp. 88: emphasis added).
Although inthe eventtheCourtdid not considerthatthimaterialadvancedmatters
anyfurther, it clearly took the viewthat it waspossible forsuchmatetoshow
that a boundary settledn one way in an agreementwuld wer tirne corne tobe
settledin a differentway.
19.31 Giventhecircumstancesof theareathroughwhichthe Nigeria-Cameroonboundary
mns, with its very difficulttopography,and theremotenessof many of the villages
andtheirdependenceonspecial factorsaffectingtheirsocial,economicand political
structures, it is notrisingthat, in the absencean officiaidemarcation,local
variations,tothe boundaries laiddown in theprincipallyrelevantinstrumentshave
become acceptedby the local cornmunities.19.32 An example is the long-establishedvariation to the boundary as delimited in the
relevant instrument which occurs in the neighbourhoodof Sapeo. The Thomson-
Marchand Declaration 1929-1931 delimits theboundary in the area in question in
the followingterms:
"(37) Thence the boundary rejoins the old boundaryabout Lapao in
French temtory, followingthe line of the aatershed of the Balakossa
rangeas far as a point situatedto the Westof the sourceof the Labidje
or Kadam River, which flowsinto theRiver Deo, and from the River
Sampeeflowinginto the River Baleo to the north West.
(38) Thence from this point along the line of the watershedbetween
the River Baleo and the River Noumberou along the crest of the
Tschapeu Range,to a point 2 kilometres to the north of Nambem,
mrning bythis village, whichis in Nigeria, ..."
Although there are some difficulties in attributing a meaning to parts of this
te~t,~"the pan here relevant is relatively clear- the boundary follows "the line
of the watershed ...along the crest of the Tschapeu Range, ui apoint 2 kilometres
to the northof Nambem, ...which is in Nigeria ..." This boundary wouldplace
Sapeoon the Cameroonsideof the boundary. Thatdoes not, however,accordwith
the long-established local usage. TheDOS 1:50,000 map, sheet 238 NE (acNal :
size) of this area is Map 67 in the Atlas, on whichthe relevantfeatures are clearly
indicated.
19.33 The Thomson-MarchandDeclaration, of course, built on earlier agreements and
discussions. The Milner-Simon Declarationprovidedas follows:
"15. Thence [i.e. from the old boundary pillar No. 81a line south-
westwards reachingthe watershed between the Benue on the north-
Westand the Faro on the south-east,which it follows to a pointon the
Hossere Banglang, about 1 kilom. south of the source of the Mao
Kordo:"
See paras19.44etsq. and19.48etscq.below. This delimitatiowa too crude tbe of much practicause.
19.34 A perambulationof the sector of the boundary hm the Benue southwardsto
Kontcha and beyond was canied out in 1920 by D.K. Mair (aBritish District
Officer) andCaptain L. Pition (representing the French Administration).They
submineda moredetaileddescriptionofthe boundaryfmmBoundaryPillar8tothe
Hossere Banglang (NC-M330). The effect of paragraptis (5) to (11) of their
delimitationastoplace the villagesof Namberu andSapeoontheBritishlNigerian
sideof the boundary,and, bythe later paragraphs(12to(17),toplace a cerrain
area betweenthe MaioLaro andKontchaon the FrenchlCarnemn side.
19.35 Theyaccompaniedtheir proposeddelimitationby a statementoftheirreasonsfor
Lhe proposedchanges,which (NC-M 331)said:
"By wayof compensation[i.e. for thechangein favourof Francein
the Kontchaarea], and at the instanceof the Britishrepresentative,
Mr W.D.K . air, a minor modificationof the Frontier Linenear
Hosere Sapeo (Tschapeuon Moisel's map), in favourof Britain,is
introducedwith the object of assuring to Britainthe retentionof ihe
two rest-housesnear the Paganhamletsof Namberu and Sapeo, and
of that small sectionof road betweenLaro and Nassacaowhich will
enablereadycommunicationbetweenthe Britishvillages situatodthe
north of the HosereBalakossaand those to the norand west of the
Hosere Banglang,and will obviatethe necessityfor a longdetour to
the north of the Sapeo Mountainsand the consequentconstructionof
a newpieceof road in thatneighbourhood.
These two modificationsof the frontier, asdefiinthe Agreement
of 10thJuly, 1919, havebeen very carefullyexplainedto the natives
concerned and announced to them as immediately biiding and
operativetill the confirmatbynthe Britishand FrenchGovernrnents
is formallyreceived."
19.36 The Govemorof Nigeria fonrarded theseproposalto Londonbut, in his cwenng
letter said"1 think that ... the points where it is suggestedfhat certain
modificationsare desirablecan be left'to be decidd later by the Boundary Commission which it is understood will ultimatelbe appointedu.'% This attitude
is consistent with the view that throughout the 1920sand 1930s the prevailing
current of opinion was to the effect that the boundary delirnitittionsin the various
formal instrumentswere ina sense merely indicative,and that the realboundaryon I
the ground wouldbe determined bythe eventualdemarcationwhich itwasassumed
wouldeventuallytake place (but which in factdid not).
19.37 The attributionof Sapeo to the Britishside of the boundawas confirmedin 1930
(Le.after the Thomson-Marchand Declarationwas adopted, but beforeits approval
in 1931)by a documentsignedby R. Logan(authorised by the Resident,Adamawa
Province, Nigeria) andLt. le Brun (authorisedby the Chef de la Circonscription
de Garoua, Cameroon)on 16 October 1930(NC-M332). Describedas "agreedon
in rectificationof the VEREKER - COSTE Procès-Verbalof the 13th of Januaty,
1926, paragmph 11". it describes a line running
"to a point on the Mayo NAMBERUapproximately2% miles EAST-
SOUTH-EAST of the NAMBERU Resrhouse, leaving SAPEO,
JONGBA, and LEINDE hamlets to GREAT BRITAIN; thence the
main course of the MayoNAMBERUupstream .."
19.38 In the event, however,hile the Mair-Pition proposal forNamkru togo to Britain
and the strip of temtory further South togo toFrancw eere incorporated into the
eventualThomson-MarchandDeclaration, forsomeunexplainedreasontheproposa1
affecting Sapeo was omitted from the text. Nevertheless, the loca1inhabitants
obsewed the frontier modification as they had been instructed todo (see final
sentence of passage quoted in paragraph 19.35 above). It is apparent from
enquiries made by Nigeria's Federal Suweys in 1995 that the variation of the
boundaryat Sapeohas been observedby both sidesas if it hadbeen includedin the
Thomson-Marchand Declaration. A Carneroonian oficial letter dated 17 March
p. 17ofC.O.Confidcntilrint.AfricanWsr)No. 1049(NC-M335) 1979(NC-M333)'" conîïrms that Cameroonacceptsthat Sapeo(Sépéoul)ies on
the Nigerian side of the boundary. Despite the text of the Thomson-Marchand
Declaration,eventhe 1:1,000,000mapattachedtoit showsaboundar lnerunning
tothe South of Sapeo and thus placing it on the BntisNNigerian side of the
boundary(Atlar:Map 68). The extractfrom DOS 1:50,000mapsheet 238NE at
Map 67 in the Arlm showstwo cairns, thresmall hills anda rockwhich local
inhabitantsaccepas markingthe frontier. Moreover,the practicesince the early
1920sdemonstratesthat SapeohasconsistentlybeenregardedassubjecttoNigerian
authonty. Sapeo is presently in YelliDistrict, Jada LocalGovernent ha.the
headquartersof which is in thetownof Kojoli. Therare14Wardsin the Sapeo
Villageha, includingLainde Jumba and Namberu, aiiof which are shownon
Map67. Thereare 435 taxableadultsin the VillagArea. Attachedat NC-M 334
are copies of various Nigerian Voter'sRegistraticards and Communal 'Ru
receiptsfrom the Sapeoarea.
D. In mam nlaces the orincioallv relevant instruments describe the land boundarv in
terms which dve riseto difficultvwhen the attemot is madto ~DDIV them on the
pund
19.39 Althoughthe delimitationof the land boundary wacarriexout mer a period of
time, and with the assistanceof surveys on the ground at certain places, it is
wverthelessthe case thatin numerousinstancesthe delimitationprescribedin the
Thomson-Marchand Declaration was, simply as a matter of geography and
surveying,defective. In sfarasreliancemay have tobe placed on the ternis of
the Milner-SimonDeclaration,thedefects,from ageograpfiicaland surveyingpoint
ofview, areeven greater. It is self-evidentthat if a text such as the Thomson-
Marchand Declaration, which deals with the relevantstretch of boundary in 58
paragraphstakingsome6%printedpages, isin placesinadequateclearlytoidentify
'" CO. VolIIpp.299-303 the line of the boundary, theMilner-Simon Dectaration.whichdeaiswiththe same
stretchof boundaryin 22 paragraphscoveringjust onepageof printedtext,willbe
manifestlydefective. Little or no help is thereftobe denved fmm the Milner-
Simon Declarationin resolving ambiguitiesand uncertaintiesin the tems of the
Thomson-MarchandDeclaration. So faras concems that latter Declaration, in
addition totheambiguityoverthe use by Cameroonof the tenn "MountKornbon"
(abe paragraph 19.14). its descriptiveinadequacan be readily illustratby a
fewexamples.
(i) Firs etample: the EbejiRiver
19.40 The fint suchexampleoccursat the mouthof the Ebeji River,at the verynorthern
end of the land boundary where it rneetLake Chad. The Thomson-Marchand
Declarationdelimitsa line from a point Lake Chadand
"Fmm there...
(2) On astraightline as far as the mouthof the Ebeji.
(3) Thencefrom this mouthalongthe courseof the RiverEbeji, .."
This delimitationis defective, in that(i) it does not define accuratelythe location
of the boundaryat themouthof the Ebeji River,and (ii) it assumesthat theEbeji
hasa singlemo~th.~~~
SOfaras it mightbe rele-vantt,hepan of theMilner-SiDeclmiion is in similarierms,starting
hm apointin LakeChad,and
"Thenc...
2. Thencethecourseof theriverEb..."eji:19.41 Both the Thomson-Marchand Declaration and, before it,the Milner-Simon
Declarationdescribed the lanboundara ys startingat "the mouth of the Ebeji".
Inrealitythe Ebejidoes not havea singlemouth: it hatwo main brancheswhich
lead into LakeChad, as well as severalsmallerwaterwaysin that region, together
givingthe areathecharacterof a smalldelta. Cameroonisawareofthisdeficiency
in the textsupon which it relies. Since Cameroon cannot invoke any specific
identificationof "the mouthof the Ebeji" in the instrumentswhichCameroonasks
the Courttoconfirmas the "definitivespecificationof the boundary,Cameroon
head seeksfmm the Courtconfirmationof the locationofthe mouthofthe Ebeji
as it was proposedby technicaexperts meeting inSeptember 1988, namely at
longitude14"12'11.7"E, latitude 12O32'17.4"N(see abm, paragraphs16.48and
16.50). Butthatrecomrnendationby the technical experwasnwer approved,and
in 1996 disciissionon the issue was expressiy deferrd (see above, paragraphs
16.57-16.60). Cameroon is thereforeasking the Coun to confimi, as though it
werean alreadyagreedfact, a definitionof the mouthoftheEbeji which in fact is
noragreed.
19.42 ~herever the true mouth of the Ebeji River may be, the co-ordinatesadoptby
the technical expertin 1988 and relied on by Cameroon do not reffect a true
geographical"mouthof the Ebeji", that being the onlterm used by the Milner-
Simonand Thomson-MarchandDeclarations. Neither Declarationeferstotheco-
ordinatescitedby Cameroon,which has thereforefailed tofollowits own criteria
for the "definitivespecification"ofthe boundary. Morewer, Cameroon,in seeking
tointerpretthe termsof those Declarationby reference onlyto a non-agreedset
of CO-ordinates,hasfailedosatisfythe burden upon it, as Applicanto establish
theboundaryfor which it contends.
19.43 It dws, however,seemtobe agreedbetweenthe parties that, wherever the mouth
may be, thetwo branchesofthe Ebeji divideat a bifurcationIocatedat 12"30114"N
. .
latinideand 14'12'03"Elongitude@ased on AdindanDatum). Upstreamfromthat.
bifurcation, the boundaryappearsto bsettled.Accordingly,the deficiencin the delimitation expressedin the Thomson-MarchandDecIaration (and the Milner-
Simon Declarationbeforeit) concems
(1) the locationof the mouth of the Ebeji, and
(2) the courseof the boundat-yfromthat mouthto the bifurcationat the location
identified.
Even if (which Nigeriadenies) the recommendationsof the technicalexperts in
1988were heldto constitutethemouthof the Ebeji for thepurposesof (1) above,
the problemat (2) wouldstill remain.
(ii) Second example:Jimbare
19.44 The second exampleoccurs near Jimbare, inthe stretch of boundary coveredby
paragraphs(35) to (37) of the Thomson-MarchandDeclaration. Those paragraphs
read as follows:
"(35) Thencethe frontier follows..the line of the watershedof the
Benueto the north-westand of the Faroto the south-easasfar asthe
south peak of the Alantika Mountainsto a point 2 kilometrto the
north of the sourceof the RiverMali.
(36) Thence from this peak by the River Sassiri, leaving Kobi to
France andKobiLeindeto Great Britain,Tebouand Tscho toFrance,
as far as the confluence with the first stream coming from the
BalakossaRange(this confluencetouchesthe KoùodjiMapeo track),
from this streamtowards thesouth, leavingUro BelotoGreat Britain
and Nanaouato France.
(37) Thence the boundary rejoins theold boundary aboutLapao in
French territory, followingthe line ofwatersh efdthe Balalcossa
rangeas far as a pointsituatedto the Westofthe sourceofthe Labidje
or KadamRiver,which flm intothe RiverDeo, and from theRiver
Sarnpeeflowinginto the River Baleoto thenorth-west."Map 69 in theAtlas comprisesthe relevantparts of theDOS 150,000 map sheets
217SEand 218SW(actual sk) of the area. The key features in the delimitation
are (a)the Southpeak of the AlantikaMountains,(b) thesource of theRiverMali,
(c) the RiverSassiri, (d) the pointof confluenceof that river and an identified
sueam, (e) the old boundaiy about Lapao, and (f) the watershedof the Balakossa
range. With the exceptionof (e), the locationof which is insufficientlyknown,
thes feaniresare indicatedon the map.
(1) Paragraph(35) takesthe boundary as far as "the southp& of the Alantika
Mountains":but this leavesthefollowingwords -"to a point2 kilometresto
the north ofthe sourceof the RiverMali"- withanunclear significance(the
Frenchtextuses "en" whichshouldnotbe uanslatedas "to" but might better
be translatedhere as "at [apoint situat..]").
(2) Assurningthat, as paragraph(36) suggests,the end point of the boundary
delimitedby paragraph (35) is the Southpeak ofthe AlantikaMountains,
paragraph (36)takesthe boundary "fromthis peak by the RiverSassiri..as
far as the confluencewiththe first streamcominghm the BalakossaRange
(this confluence touches the Kobodji Mapeo Track)". This point of
confluence can be established withoutany doubt from the map, at the
position marked.
(3) From that pointof confluencebetweenthe River Sassiriand the Streamthe
boundary runs "from thisstream towardsthe south": nothing is said about
preciselywhat limethe boundary is to followon itsouthward route,other
thanthat it mustgo between Un> Beloand Nanaoua(twplaceswhich have
not been identifiedon modem mapping).
(4) That lack of clarity makesthe startingpointfor the applicationofparagraph
(37)unclear. since "Thence"has no specificpoint of reference. (5) Even if it had, the delimitationvides'that "Thence the boundary rejoins
the old boundary aboutLapaon, andthis is againunclear sinceit saysnothing
about where or by what route it is to rejoin the old boundary,nor indeedis
it certain what alignment the "old boundary" folIowed.
(6) Finally, paragraph (37) makes a leap from this unidenufied place on this
unidentified old boundary to the "watershed of the Balakossa range":
although this watershed is itself clear,route which the boundary is to
followin order to get to it is undefined.
19.47 It shouldbe notedthat this stretchof boundarywasamplifiedin 1930(Le.afferthe
Thomson-MarchandDeclaration was adopted, but before itwas approvedin 1931)
by a document signed by R. Logan (authorisd by the Resident, Adamaw
Province, Nigeria) and Lt. le Bmn (authorised bythe Chef de Ia Circonscription
de Garoua, Cameroon) on 16 October 1930 (NC-M 332). Described as "agreed
upon in amplificationof the VEREKER - COSTE Procès-verbal of the 13th of
January, 1926,paragraph IO", it delitnitsthe boundary in greater detail that in the
Thomson-MarchandDeclaration. That this subsequentamplificationof the terms
of the delimitation was given does not detract fmm - indeed it supports- the
argumentthat the terms of the Thomson-MarchandDeclarationtaken bythemselves
are inadequateto constitutethe 'definitive specification'of the boundary forwhich
Cameroon contends.
(Yi ) hirdexample:Namberu -Banglang
19.48 The third illustrative example occurs in the area of Namber-Banglang, in that
part of the boundary delimitationwhich haslready been wnsidered in the context
of the agreed boundary variationat Sapeo (see paras. 19.32 seq., above). For
present purposes the relevantboundary delimitationprovision is paragraph (38) of
the Thomson-MarchandDeclaration, which reads - "(38) Thencefromthis pointalongthe lineof the watershedbetween
the River Baleo and the River Noumberou along the crest of the
TschapeuRange, toa point 2 kilometresto the north of Namberus,
tuming by this village, whichis in Nigeria, goingup a mlley north-
east andthen south-east, whichcrosses the Banglangrange about a
kilometreto the southof the sourceof the KordoRiver."
Partsof the DOS 1:50,000map sheets 238NE and 238NW showing this area
comprise Map 70 in the Atlas,on which therelevantfeamresareclearly indicated.
19.49 For two reasons this provision cannot readily be applied as it stands to a
demarcationon the ground.
(1) First, both the English and French texts erin referring to the boundary
goingup a mIley "north-eastand then south-east"since the map shows that
theonly mlley which could here be king referredto mns north-WS Ind
then south-west. Indeedthe referenceto the ~lley is unclear ui whether
it is a valleythmugh whicha river mns, whether(as seems likely)the river
is the RiverNangua,andwhetherthe boundaryfollowsrhatriver despitethe
incorrectdescriptionof the direction inwhich itows.
(2) Second, paragraph(38) is further defectivein stipulathg that end point
of this sectionof the boundaryis at the point where thevalleycrosses the
Banglang range"about a kilometreto the south of the sourcof the Kordo
River". Thelocationof this pointis inadequatelydescribedfordemarcation
purposes. (iv)Fourthexample: Yin Crossing
19.50 A fourthexamplearises at the YinCrossing, on the stretchof boundary delimited
by paragraphs (48) and (49) of the Thomson-MarchandDeclararion. Those
paragraphsread:
"(48)Thenceto Hosere Lowul w,hichis wellover2 kilometresfrom
the Kwancha-Banyo main road. Thispeak (Hosere Lowul)lies on a
magneticbearing of 296 from the apex of the Genderu Passon the
above-mentionedmain road. From thisapex, which is distant 3%
miles hm the GeneruRest-house,and whichlies betweena peak of
Hosere M'Bailaji(to the west) anda smallerhill, knownas Hosere
Burutol, tothe east, HosereMtBailajihas a magneticbearing of 45
and HosereBurutol oneof 185.
(49) Thence a line, crossing the Mai0 Yin, at a point some
4kilometresto theWestof thefigure 1.200(denotingheightinmetres
of a low conical hill) on Moisel's rnap E.2, to a prominentconical
peak, HosereGulungel, .."
The DOS 1:50,000map sheet 277NE shaving thisarea is Map 71 in theAtlas, on
whichthe relevantfeatures are clearly indicated.
19.51 In four respects this delimitationis technicallydefective,and cannot be readily
appliedin a demarcation on the ground.
(1) Hosere Lowulcannot be identifiedwith certainty from ayailablemaps, and
although various magnetic bearings to that peak are given, they do not
producean unequivocallocation for it,sincethe Kwancha-Banyomain road
is not shown on availablemaps and indeed js nof visible on the aerial
photographshm which the DOS map was constructed.
(2) From that peak (whereverit is) thedelimitatistatesthat the boundaryis
delimitedby "a line" ("Thence a line") whiccrosses the Maio Yin at an
identified point.But nothing is said about the course of that line (a
. . watershedline? a straight line? a trackline?), or its diiother than
that its end pointis at the pointspecifiedon the Maio Sinceit must
extendfor aboutten kilometres, the abseof informationis significant.
(3) Although the crossing potppearsreasonablyspecifi("som e kilometres
to the Westof tfigur 1e,20 0.on Moisel'smap E.2 "),it fartoocrude
for demarcationpurposes. First, "some" fokms. to theWestof a given
pointintroducesa clearelementofunceriainty. Sewnd, the identificationof
the given point referencetoa figureof1,20 0n Moisel'smap (dmwnat
a ale of 1:300,00 i,)on the ground, too imprecisto beof value for
demmation purposes: therelevantpart of Moisel'smap (enlargedx3) is
Map 72 in theAtla snd it is apparentthat the fi"1,200"referredtois
on the map 13mm long (which representsabout 1.kms. on the grwnd),
while the initial digit"1" of figureis 4mm high (representingabout
400 metres on the ground).
(4) Finally,whereverthe crossing pointof the MaYI maybe thought to be,
the next sectionof the delimitationof thearyis fmm that point "toa
prominentconicalpeak , osere Gulungel". Thereis someuncertainrymer
thelocationofHosere Gulungel. NeithMoisel'srnapnortheDeclaration's
map showa peak of that name, nor is it possibleto identify acpeakai
fium the crudereliefdepictbyMoisel. DOS mapsheet 277NE dm show
a riveralledGoungel draininsouth-eastwardshm a groupof mounlains,
whosenorthenunostpeak is both prominent andco~cal. Althoughthpeak
carries the nameHossereChelire, it mbe(butthis camotbe certain)that
itis thepeak referred to as Hosere Gulungin the DeclarationAgam,
nothing is said about,the course to be tbythe boundary lii.or its
.direction(s)hm the crossingof the MaioYi.
19.52 Thereare numerousother suchdifficultiesof applicationto whichtermsofthe
principallyrelevantinstrumentsgirise,but the examplesgivenaresufficieto showthat, on this ground alone, for Cameroonto seeka "definitivespecification"
of the boundary solely by referenceto the tenns of those instnimentsis wholly
inadequate.
19.53 It is unforninatethat an agreed boundarydelimitationsuchas that in the Thomson-
MarchandDeclarationshouldin so manyrespects be geographicallydefective. In
part it may have been due to inadequaciesof the maps amilable at the the
(although thathardly explains obviously incompleteand imperfect referencesto
features along the line of the boundary). Periodicallyreports submittedto the
League of Nations and theUnited Nationsrefer todeficienciesin the delimitation
l
of the boundary and the need for greater precisionor demarcation. It seems,
however,very possible thatthe parties were primarilyconcerned to lay downthe
broaddirection tobetaken by the boundary,knowingthat inplacesit mightbe less
detailedthan wouldhavebeen ideal, but believing that any defichcies wouldbe
clariûed by the boundary commission which the panies fully expected would
straightaway undertakethe taskof demarcationon the ground. This isclear from
the Exchange of Notes of 9 January 1931 by which the British and French
Governmentsapprovedthe Thomson-MarchandDeclaration. Theyregarded that
Declaration as "only the result of a preliminary survey conducted in order to
determine more exactly ...the line ultimaretyto be followed by the boundary
commission" (above,paragraph 18.37:emphasis ~~dded).~'This would explain
whyin manyplaces the delimitationis expressednot in pmise topographicalterms
but in generaldescriptivelanguagewhich isnot apt for atechnicaldelimitationbut
would be appropriate asguidancefor the precisedernaccationwhich it wasthought
would follow. In a sense, therefore, the delimitation fixedthe boundary only
approximatelyand provisionally,as a temporary holdi measure, pending the
demarcation whichwasexpected m.followsoonafterwards. In that expectationthe
lss
Sec alsabovc,para.9.36;and.focxamplc.C.O.ConfidcntialPrint, MiW), No.IW9. No.74,
p. 178NO. 77,p.192No. 78. para. 8194;No. 84, pp.210-(NC-M 335)
. . parties were disappointed:the necessary demarcationof what was evenaiallyto
becomethe Nigeria-Cameroon boundary nevertookplace.
19.54 The examplesgivenof deficiencieinthe terms of the delimitationashow that
the diiculties towhich they give rise essentiallyinvolveissues of demarcation.
Acceptingin principleas Nigeria does, that the instrumentsestablish generally
speakin the boundary between the two countries, it is apparent that what is
imlved is not any dispute aboutthe delimitationofthe boundary, but rather
questionsabout theemarcationon the ground of a boundary thedelimitafionof
l whichis othewise agreedin principle.
i
!' 19.55 It is also the case that questions whicharise in the context of lacally agreed
variationstoor interpretationsofthe boundarybaragraphs 19.23-19.38abwe) can,
1
in Nigeria'sviewbe best consideredwithin theframeworkoa joint demarcation
of the boundary. Such a joint demarcationwouldalsoprovidean oppminity for
i
Cameroon tocorrect those of its official boundary maps whicareclearly at
variance with theerms of the instrumentson which Cameroonirselrelies and
whichCamerooninvitedthe Court to endorse.
E. The ~rinci~alboundarv sectors
1 19.56 It is appropriatenowfor Nigeriato commentitum uponeachof the four S~tors
of the boundary whichwere for convenience identified in Chapter 18 (see
paragraph18.26).
Beforedoing so a prelirninaword of explanatiomaybe helpfuregardingthe
19.57
originand numbe~g ofBoundary Pillar(BPs),the locationsof someof whiare
still relevtothe presentboundary betweenNigeriaand Cameroon. Therewere
fourseriesof separatelynumbered(and sometimesunnurnbed) boundary pillars,
whichcan be summarised asfollows: BPs 1-17erected in 1906around the "~olaArc", nkbered from Northto
(1)
South:
(2) 4 narnedbut unnumbered beacons,and BPs 1-29running northwardsfrom
Yolato Lake Chad, also erectedin 1906;
(3) 5 u~umbered BPs, and BPs 1-7numbered from South toNorth, erectedin
1905-1906. The unnumbered BPs lie betweenthe Akmporum and Awa
Riversin the Southand the numberedBPs&men the CrossRiverand Oyi
River in the North; and
BPs 1-114, numberedfrom North to South, starting closto BP 17 of the
(4)
Yola Arc series and overlapping,in the South, with BPs 1-7 of the 1905-
1906series.
19.58 In greaterdetailthesefour seriesof boundarypillars weemted in the following
circumstances. As to:
(1) and (2) the Anglo-GermanAgreement1906delimitedthe boundarybetween
Yolaand LakeChad in two parts. First, an arcwas definedaround
Yola (the "Yolaarc") starting from the Benue River (Point C on
Map 56 in the Atlas) and mnning south. During thiswork, 17
boundary pillars were erected, BPI king on the south bank of the
BenueRiverand BP17king southwest ofYola. However,BPsNos.
1 to 5 were made redundantbya variationcontainedin Article 1of
the Agreementwhich movedthe alignmentof the arc hm dry land
onto the Faro and BenueRivers. The positionsof BPs 1. 8, 15 and
17 are indicatedon Map 56 (ibid). The secondpart of thisboundary
was pmvided for in Articles IIto VI1 of the Ag~ement, which
delimited therest of the boundaryin anqnhward direction toLake
Chad. Between the Benue River and Dikwa, four beacons were named but not numbered, and betweenDikwa and Lake Chad 29
boundary pillarswere erected and numberedfmm 1 to 29. The
positionsof BPs 1 and29 are also indicatedon Map 56(ibid).
In 1905,the SouthemNigeria-KameninBoundaryCommissionbegan
work and by April 1906had formulatedpmposals forthe course of
the boundaryfrom the coast as farnorth as a pillar (No. 7) erected
betweenthe Okon andOyi Riversin latitude6'05'N. In thecourse
ofthis work, the commissioners erectefourunnumberedpillm and
one cairn betweenthe Akwaponimand AwaRivers in the South, a
furtherunnumberedpillar onthebankofthe CrossRiverNorthofthe
rapids,wo morealonga sueam referreto as"Boundary stream" and
then a series of seven pillars numbered hm 1 to 7 7ing as
describedabove.
Actingpursuantto the umtitîed Anglo-GerrnanAgreementof 1909
(NC-M 42). British and German officials agreed upon a further
boundary demarcationfrom Yola southwards,and 'incorporatedtheir
agreedresultsinthe Anglo-GermanDemarcationAgreementof April
1913(NC-M 46). In thisdemarcationtheybegan anewenurneration
of Boundary Pillars, from BPI to BPI14. BPI was stated by
paragraph 1 of that 1913Agreementto be "at a point a quarter of a
mile north-west of Pillar 17 (the last pillar of the Yola-Chad
demarcati~n)".'~ That BPI, which isclose toBPI7 of the earlier
Chad-Yolaseries, is locatedat point Bon Map56 in theArh. The
positions ofBPs 1, 24, 44, 64, 91, 107 and 114 are indicatedon
Map 56 (ibid .)BP 107 is the most northerly of the xven pillars
2w The positionBPI is morecomplekdefincinthe Anglo-GermTrcatyof 11March 19asking "%
mile..north-wstof boundarypi17alongtheprolongationof thestlinjoiniboundarypilla16
and 17'. established in the 1905-1906 demarcation exercise."' From the
descriptions, it can be deducedthat the correspondencein numbering
isas follows:
Pillat114 of the1913 Demarcationwasbuilt in 1913 forthe purpose of
thatdemarcationand therefore hasno quivalent. It ispresumedthat the
pil1at.sassociated witthe "Boundary Stream" in the 1913 Treaty were
abandonedand possiblyevendestroyed. None of thesecoincidedwith BP
114.
19.59 (1) For the most part, and apart from occasional cross-references (as in
paragraph 1 of the April1913 Agreementjust referred to), the1906 series
of Boundary Pillars mnning from Lake Chad to a point North of Yolacan
be disregarded as no longer directly applicable to the demarcation of the
present boundary betweenNigeria andCameroon. As Map 56 shows,most
of the Anglo-Germanboundary betweenLake Chadand Yolanowlies to the
Westof the present.boundarybetween Nigeriaand Carnemon.
' Article3oftheProtol fthe1906Demarcatinnjoinsanysubscquiemarcatitauselhtssevenpillars. (2) Bk 6, 7 and8of that 1906senes (aroundthe Yolaarc) remain relevantas
theyarespecificallyrefertedinthe Thomson-MarchandDeclaration.
(3) The 1905-1906series oBPs 1-7 endingat the OyRiver were renurnbered
bythe 1913demarcation.
(4) The 1913 series oBk 1-114from Yolato the Cross River is still partly
relevantto the present boundarybetween Nigeriaand Cameroon. Although
BPs 1-63are no longer dictlyrelevanttothe demarcationof the present
boundarybetween Nigeria andCameroon since they concem the former
Anglo-Germanboundary, BPs64 to 114 now help todelimit theNigeria-
Camemonboundary. BP64 is adjacenttPointF and BPI14 is at PoinG
on Map 56 in theAtlas.
(i) Sector1: Themouthof the EbejiRiverto Hill1660
19.60 The extentof the boundaryin this Sectoris illustratedon M(ibidp .)i,tsJ
toK.
19.61 Apart from a small sectionat the mouth of the River Ebeji (and subject to
paragraphs 19.40-19.42above),the boundaryin this Seciscurrently delimited
bythe Thomson-MarchandDeclaration1929-31,and inparticulaby itsparagraphs
(3)to (60) (amplifyhg the Milner-Simon Declaration1919). The iext of the
relevantparagraphsare set out in NC-M 54. Althoughit is the primarityrelwant
instrument,previousdelimitationsrelatonthe samestretchofboundaryarestill
relevant. (a) The Milner-Simon Declaration1919
19.62 In particular, ithas to be notedthat the Thomson-MarchaDeclarationfollowed
the Milner-SimonDeclaration 1919, paragraphs 1 to 22 of which relate to this
Sector of the boundary(see above, paragraph 18.32). Thetext of the relevant
paragraphs is set out in NC-M 50. They areof particular importance given
Cameroon'srelianceon them initssubmissionstotheCourtand the omissionfrom
theTnisteeship Agreement for the French Cameroons of any referenceto the
Thomson-MarchandDeclaration(see paragraphs 19.68-19.70below) .
19.63 Further, it has altobe noted that in thecemal section of this Sectorof the
boundary,betweenpoints B andD on Map 56 intheAilas, the boundary delimited
by the Thomson-Marchand Declarationfollowçtheboundarp miously laiddown
invariousAnglo-GermanAgreements.
19.64 Whenthe BritishMandatedarea of Cameroon was established,ii consistedof two
separateareas along theeastem bordersof the NigeriaPmtectorate. The northem
areawas an approximatelyinvertedmangular shape, with itsbase along theshores
ofLake Chad and its apex ata point north-eastof the townof Yola. The southem
areaVAS similarly an approximatelytriangular shape, with its base along the
Atlanticoastand itsapex at a point Southof Yola. Thesetwo distinctareas are
evident fromMap 54 in theAtlas. Betweenthe two apexpointsof thesetwoareas
there was a stretchof boundarybetween the pointnorth-zastof Yolato the point
south of Yola:this stretch is referred to as t"Yola arcn.* This arc thus
originatedas part of the old Anglo-Germanagreedboundary, andhas since then
always marked the boundary betweenNigeria (first the Protectorate, then the
Seepara19.58(1abmc independentState)and Cameroon(firstthe GermanProrectorateof Kamerun,then
the French Mandated andTmt temtory of French Cameroon, and finally the
independentStateof Cameroon).
19.65 TheprincipaldirectlyrelevantAnglo-Germanagreements were:
(1) the Exchangeof Notes of 27 Julyl2 August1886(NC-M 25);
(2) the Agreementof 15November1893(NC-M28);
(3) the Agreementof 19March 1906(NC-M38).
(c) The Thomson-MarchandDeclaration1929-1931
19.66 These Anglo-Germanagreementsare no longer directly in issusince they have
been superseded by the more detailed provisions of the .homson-Marchand
Declaration. They may still have a certain relevance,however,in sheddimglight
onthe historicaldevelopmentofthe boundaryinthoseplaceswherethe delimitation
in the Milner-Simonand Thomson-MarchandDeclarations rnaybe defective.
19.67 On the basis already explained, and subject to theconsiderations noted in
paragraphs 18.54-18.57and paragraphs 19.2-19.53abm, Nigeria in principle
acceptsthe boundary asdelimitedby the relewt paragraphsofthat Declaration.
Inparticular,and inrelation to theSectorofthe boundarynowunderconsideration,
Nigeriadoes not challenge thelegal wlidity of the Milner-Simon Declaration.its
adoption by reference as part of the, Mandates for the Britisand French
Cameroons, or the legal mlidity of the Thomson-Marchand. Declarationas
confirmedby the Exchange'ofNotesof 9 January 1931.19.68 Nevertheless, Nigeria draws attention to the fact that the Tmsteeship ~&ements
for the British and French Cameroons are, in relation to the Thomson-Marchand
Declaration, in different terms. In short, the BritishTmsteeshipAgreementdefines
the boundary of the British TrustTerritory by referenceto that Declaration, while
the equivalent provision of the French TmsteeshipAgreement makes no mention
of it. The fact that the Thomson-Marchand Declarationwas not mentioned in the
French Tmsteeship Agreementdoes not necessarily affect its validity, but does
emphasise that (as noted in paragraph 19.53 above) these agreed border
delimitations were not regarded as final and definitivesealernents, but rather had
an approximateand provisionalcharacter.
19.69 Article1 of the Tmsteeship Agreement for French Cameroonsreads as follows:
"The Territory to which the present Trusteeship Agreement applies
comprises thatpart of the Cameroonslyingtotheeast of the boundary
definedby the Franco-British Declarationof10 July 1919" [i.e. the
Milner-Simon Declaration].
The relevant part of Article 1 of the Trusteeship Agreementfor the British
Cameroons reads as follows:
"The Temtory to which this Agreementapplies comprisesthat pan of
the Cameroons lying to the West of the boundary defined by the
Franco-BritishDeclaration of10 July1919, and more exactlydefined
in the Declaration made by the Govemor of the Colony and
Protectorate of Nigeria and the Govemor of the Cameroons under
French mandate which was confirmed by the Exchange of Notes
between His Majesty's Governrnentin the United Kingdom and the
French Govemmentof 9 January 1931."
19.70 It thus appears that thewesternboundary of Carneroonwas, upon its attainmentof
Independence from French administration, determined soleiyby reference to the
Milner-SimonDeclaration, and that, as agai~t Nigeria, Carnerooncannotclaimby
wy of successionunder the TmsteeshipAgreementthat its boundary is determined by the Thomson-MarchandDeclaration. Cameroon'ssubmissionthat the Court
should specify the course of the boundaryin terms ofinteralia, the Thomson-
Marchand Declarationthus appears to be an attempttomakegd the defect in
Camemon'sposition resultinfrom the termsof the TnisteeshipAgreementfor the
French Cameroons.
19;71 In accepting in principle the delimitation of the boundaryby the instruments
I referredto,Nigeria again drawsattention to the fact that in some places some
technical uncertainties and ambiguities attach to the delimiration of the
û~undary.~~ ~hese uncertaintiesand ambiguities,however,do not mean that the
delimitatioas suchis in disputeor rejected.
!
19.72 Apart fmm the mattersalready referredtoin thisChapter,oneother sectionof the
boundary in this Sectorcalls for particularconsideration.
19.73 This sectionof the boundaryis the area near Tipsaand Kontcha. Theareawas
given some pmrninence in Cameroon's Mern0ria1.~~~ It vas also mentioned
during the oral proceedingsat the Preliminary Objectionsphase of the ppresent
case,295nd itwas apparentthat there were a nurnberof mWerstandings asto
the tme position. In paragraph 89 of its Judgment, the Court referred to
Cameroon'sargument about "thechallengebyNigeriatothevalidityof theexisring
titieto ...Tipsan .."; and inparagraph 92 the Court noted that Nigeria"does
dier with Cameroon about ...Tipsan ...".
19.74 Theboundary inthisarea isdelimitedby paragraphs(41)and (42) of theThornson-
MarchandDeclaration. Theymd:
TbedeficicriciciinthelinedescribedintheMilner-SimonDeclarationwcreweSec.hrexample.
remarb ipara.24 of theMandaoReport for193NC-M 270.
'lyMC, pm. 6.90CIscq.
" CR 9811,pp.24-25(Nigeria):CR9814,p. 24 (Camemn); 9815.p.42(NigcriaCR 9816pp.37-38
(Camemon} "(41) Thence a line paralleto and distant2 kilometrestothe West
from this road (which is approximatelythat marm Faulborn.
January, 1908,on Moisel'smap).to a pointon the MaioTipsal(Tiba,
Tibsator nissa on Moisel'smap)2 kilometrestothe south-westofthe
point at whichthe road crosses said MaioTrpsal.
(42) Thencethe course of the MaioTipsalupsueam toitsconfluence
with the Maio Mafu, flowing from the west, to a point, some 12
kilometrestothe south-westof Kwancha town."
Parts of theDOS 1:50,000 map sheets 238SW and 258W shawing this area
compriseMap 73 in the Atlas.
19.75 The Mnous featuresreferredtoin the delimitationare clearly visibleon this map,
allowancebeing made for modern spellings. The road referredro is the road
marked bya brokenorangeline on thatmap. An extractofMoisel'srnap(at scale)
is at Map 74 in the Atlas, which clearly shows the tmck marked "Faulbom
Jan. 08". The point at which the mad crosses theRiver Tipsan ismarked on
Map73 (ibid); the point on the River Tiptwo kilomelm tothe south-westof
'that point also marked;andthe courseof theRiverTipsanupstreamis indicated.
19.76 Itis apparentfrom this explanationof the termsof paragraphs(41)and (42)of the
Thomson-MarchandDeclarationthat the assertions madein paragraphs6.92 and
6.93 of Cameroon's Memonal are wholly unjustified. Cameroon asserted that
Nigeria was aggressivelyintruding into Cameroon temtory by establishingan
immigration postat Tipsan. Cameroon said:
"It transpir...that the Cameroon-Nigeriafrontier has ben shifted
to Typsan by the Nigerian army, which bas established a border
control post there ... The real frontier on the other hand, as
materializedby stones lefby the Germans, lies severalmilesCothe
Westof Kontcha .." (Memonal,paras. 6.92 - 6.93).This is supportedby a report fromthe Governorof AdamaouaProvincereporting
"theconsmction by Nigeria in 1994of anemigrationand immigration
police post6.5km insideCamerooniantemtory in theTypsanlocality
of the villageof Kontch.." (Memonal, para.6.94)
Thus Cameroon, apart frombeing comprehensivelyin emor in its ctaimto a
Gem boundarymarker, seekstoattachTipsanto the village of Konrcha(which
Nigeriaacceptsis inCameroontemtory), and to asserta boundary6.5 kms. tothe
Wst of the Tipsanimmigration post alongthe road to Bospan, as if Tipsanwere
part of Kontcha. Since that post is itself nearly four kms. West of Kontcha,
Cameroon is thus placing the boundary some ten lans. West of Kontcha.
Cameroon's confusion over the geographical relationship between Tipsan and
Kontcha, and the location of the boundary (whichmns bemen them), is
responsiblefor whatis in no wayan inmision by Nigeriainto Camemn temtory
but preciselythe reverse. The clear terms of Treaty show(a)thatthe l~cation
for theboundary asserted by Cameroon has no basis the Treaty,and @) the
locationof the Nigerian immigration postat Tipsan cleariy on the Nirianside
of the streamwhichformsthe boundary. In so faras thereis arrydisputeabout the
pmper courseof the boundaryin this area, it is not a disoftNigeria'smaking.
Nigeria subscribes to the delimitation set out in the Thomson-Marchand
Declaration. Itis Cameroonwhich, despite requesting the Court toendorsethe
delimitation setoutinthat Declaration,is itself not actinaccordancewith it.
By assertinga boundarywhichhas no justificationin theTreaty,and then on that
ermneousbasismakingassertionsaboutNigeria'sallegedagression, Carnemonhas
acted irresponsibiy. (ii) Sector 2:Hill 1660to Boundary Pillar64
19.77 The extent of the boundaryin this Sectoris illustratedon Map 56 in the Arlas,
pointsK to F: it is the former dividing linebetweenthe Nonhem and Southern
Cameroons.
19.78 The boundary in this Sector resulted from the administrative divisionof the
temtories under British Mandate intonorthem and southem portions (see above,
paragraph 18.40). When, followingthe referendain 1961. the southern portion
became part of Cameroon and the northern portionbecme part of Nigeria, the
formerly intemal administrative boundarybetweenthose two ponions becamethe
intemationalboundarybetween Nigeria and Cameroon.
19.79 The interna1administrative boundarywas describedin the following tems in the
Second Schedule to the Nigeria (Protectorateand Cameroons) Order in Council
1946(NC-M 55):
"The line dividing the northem and southem portions of the
Cameroons under British Mandate.
From boundary post 64 on the old Angio-Germanfrontier the line
followsthe River Gamana upstreamto the pointwhere it isjoined by
the River Sama; thence up the River Sama to the point where it
dividesintotwo; thencein a straightlinto the hjgkst pointof Tosso
Mountain; thence in a straight line eastwardsto a point on the main
Kentu-Bamendaroad where it is crossed by an unnarnedtributaryof
the River Akbang (Heboro on Sheet E of Moisel's map on Scale
11300,000) - the saidpoint beingmarkedbya cairn; thencedownthe
streamto itsjunction with theRiverAkbang;thencetheRiver Akbang
toits junction with the RiverDonga; thence the River Donga to its
junction with the RiverMburi; thencethe River Mibursiouthwards to
itsjunction withan unnamed stream aboutonemilenorth of the point
where thenew Kumbo-Banyoroad crosses the River Mbun at Nyan
(aliaî Nton), the said point being about fourmiles south-ebyteast
ofMuwe; thencealongthisunnamedstreamon a general uue bearing
of 120" for one and a half miles to its sourceat a point on the new
Kumbo-Bawomad, near the sourceofthe RiverMfi;thenceon a tme , , bearing of100" for three and five-sixthsmilesalong the crest of the
mountains to the prominent peak which mark the Franco-British
frontier."
In addition to the delimitationof the boundaryby the 1946 Order in Council,
Nigeria also notes the subsequent delimitationof the relevant boundaryn the
Northern Region, WesternRegionand Eastern Region(Definitionof buridaries)
Proclamation, 1954 (NC-M59). The significance of this Proclamation is
consideredin paragraphs18.41and 18.42above.
On the basis already explained, and subject to the considerations noted in
paragraphs18.54-18.57and paragraphs 19.2-19.53, Nigeria in principle accepts
the delimiiationof the boundaryasset out in that Schedule. In panicular, and in
relation to theSector of the boundarynow under consideration,Nigeria dm not
challengethe legalvalidityof the Order in Council. Thereisasfaras Nigeriais
a-, no disputeoverthat delimitation.
in acceptingin principlethedelimitationofthe boundarbythe instmmentdemd
to, Nigeria again draws attention to the fact thatin some placessometechnical
uncertaintiesattachto the agreed delimitation ofthe boundary. Thesedo not mean
that the delimitation assuch is in disputeor rejected.
In particular, attention is drawn to the fact that the boundaq should not end at
BP64 butat the point atwhichthemedianlineofthe Gamana Riverintersectsa line
joiningBPs64 and 65. There are, however,no instructionsin the relemnttexts
on howto proceedfrom the medianline of the Gamana Riverto BP64.
More generally, it is important to mal1 that the boundacy-in this Sectorwas
originally prescribed aan internulboundary between two parts of the British
Cameroons. Suchinternal,inter-provincialor inter-regionalboundariare seldom
prescribed with the care which should attend thedelimitatiof an international boundary. In terms of local social and economic factors, such as trans-boundary
tribal movementsor farrning,o long as both provincesor regionarepan of the
same country, the precise line of the bounhasya duced significance. When,
as in the presentsituation, a boundary originallydelimited as an interna1boundary
becomes an international boundary without any more specific delimitation, its
imperfections forintemutionalpurposes becomemore evident.
(üi) Sector3:BP 64 toBP 114
19.85 The extent of the boundary in this Sector is illusmied on M56 in the Atlas,
poin~ F to G.
19.86 The boundary in this Sector results from thdelimitatioin the Anglo-German
Treaty of11 March 1913 and the Anglo-German Demarcation Agreement of
12April 1913.
19.87 The Anglo-German Treatyof 11 March 1913(NC-M 45) delimited the boundary
from Yolato the sea. It sets out this boundary in Articles 1to XXXII.Arti-les 1
VI11concem the boundaryNorth of what waslatertobecomeknownas BP 64, and
no longerdkectly determinethe present boundaryberweenNigeria and Cameroon.
The pillar referredto in Article XV appears tobethateventuallynumbBPed114
(see paragraph 19.58(4)). Accordinglyonly the provisionsof Articl-XV are
relevant to the Sector now under consideration, namely tint between BP 64 and
BP 114.
19.88 While the Agreement of 11 March 1913 wasbeingnegotiated, oficials of the two
countries were engaged in a joint demarcationof part of the boundarybetween the
areas of British and German interest, pursuato an Agreement concluded on
6 October 1909 (NC-M 42), but never appmved by thetwo Gwernments. The
results of this joint demarcation of the boundary yreincorporated intothe l
Agreementof 12April1913 (NC-M46: and seéabove,paragraphs 18.44118 1).
This Agreement stated that it was arrived at in order "gomark out a definite
boundary between Nigeriaand the Cameroonfrk Yolato the Cross River, in
accordance with the Agreement of the 6th October,909". Although the
negotiators of t1909 Agreement recommended it to their Governmentsfor
apprwal, it never was approved. The1913 demarcation officials, purporting
neverthelessto actpursuantto1909 Agreement,"agreedtoadoptthe boundary
shm on the accompanyingmap in 8 sheets, subjeto the approml of their
Governments". That approvalwasgiveby an Exchangeof Notes 4fJuly1914.
To the extent that the Ap1913 DemarcationAgreememmrlaps part ofthe
bundary delimited in the March 1913 Treaty, the April1913 Agreement
supersedesthe earl1913 Treaty.
19.89 ~he demarcationunder th1913 Agreement(whichinfact followequi= closely
thedemarcationagreed ad referendumin1909)began at Pillar "ata point a
quarterof a mile north-west of Pilla17 (the last pillar of the Yola-Chad
demarcation)- see above, paragrap19.58(4) T.he demaxation continuedto
BP 114 "ata bend in the Cross Riverab2%tmilesup-stream€romObokum on
the northank of this river". TBP 114 is approximate140kms. (87 miles)
North of Bakassi. Accordingly,while the demarcationfBPI toBP64 is no
longer relevatoany present boundarybetween Nigeriaand Cameroon,the rest
of the demarcation, thatis from BPBP114 inclusive,covetheentire Sector
now under consideration. Thatstretch of the demarcation is described in
paragraphs3 to21 of th1913 DemarcationAgreement.
19.90 The finalsubstantiveparagraphof 1913 DemarcationAgreementprovidedthat
"In case thebovedescriptionof the boundarydoesno1agreeexactly
with the boundaryas shownon the maps accompanyingthe present
Agreement. and which are regarded as formingan integral part
thereof, it is expresslyunderstoodthatthe ofthe boundaryaç
shownon the maps shalldecideanydispute".19.91 On the basis already explained, and subject to the considerations noted in
paragraphs 18.54-18.57and paragraphs 19.2-19.53, Nigeria in principle accepts
the delimitation of the boundary as set out in thenglo-German Demarcation
Agreement of 12 April 1913. In particular, and in datioto the Sector of the
boundary now under consideration, Nigeria does not chalIengethe legal validityof
that Agreement.
.
19.92 In accepting in principle the delimitation of the boundarby the instruments
referred to, Nigeriaagain draws attention to the fact that in some places some
technicaluncertaintiesattach to the agreeddelimitationof the boundary. These do
not mean that the delimitation assuch is in dispute or is rejected.
(iv) Sector 4:BP 114 to Northof Bakassi
19.93 The extent of the boundary in this Sector is illustratecion Map 56 inAtlas,
points G-H.
19.94 The Demarcation Agreementof 12April 1913demarcatedthe boundaryonly as far
South as BP 114,acceptingin doing so the alignmentof the boundarybetweenBPs
107 and 114 as it resulted from the 1905-1906demarcation. BP 114 is some
140kms. (87 miles) North of Bakassi. Below thatpoint, the boundary is still
govemed bythe Treatyof 11March 1913. Botbthose agreementsbuilt on earlier
Anglo-Geman Agreements,at least in part.
19.95 In the Exchange of Notes of 29 Aprill7 May 1885 (NC-M 24: and see above,
paragraphs 7.5 et seq.) Great Britain and ~em'an~ came toan arrangement
wherebythey wouldseparatetheir respectivespheresof inAuenceand action in this
part of Africa.The line of separation ranfmmthemouthof theRio del Reyto its
source, and then direct to the Old Calabar or cross River, terminating after
crossingthat river at a point marked "Rapids"anspecifiedChan. The southern partofthis line(concerningthe Riodel Rey)is considerd inPIof this Counter-
Mernorialin the contextof title tothe BakassiPeninsula. It is the morenonherly
part (upto theCrossRiver Rapids)which relatestotheSectorofthe boundarynow
under consideration.
19.96 It is, generally,to be notedthat theExchangeof Notesdid not purport todefinea
formal boundary, but rather todifferentiatebetween the two States' respective
spheresof influence(see above,Chapter7, paragraphs7.7-7.10).Itis alsotobe
noredthat thetem of the Notes constituting thisExchanarenot, as wouldbe
usual foran Exchangeof Notes constitutina binding hrnationai agreement,in
identicalerms.
19.97 In a further Exchangeof Notes of 27 Julyl2 August 1886 (NC-M 25: and see
above,paragraphs 7.13-7.19)the hw Gwernmentsextended intothe interior.from
the Cross River up tothe area of Yoia.the lisetout in the1885 Exchangeof
Notes.
19.98 Againit maybe notedthat thetwoNotes werenot expmsed in identicallanguage.
19.99 The Anglo-GermanAgreement 1890 (NC-M 26:and see above,paragraphs7.20-
7.25) correctedan error in the descriptionof the used inthe 1885Exchange
of Notes, whichhad erroneously assumed that the Rio del Rey was a river.
Instead, the Agreementprovided for a provisionallinofdemarcation from the
head ofthe Rio del ReyCreek to the Cross RiverRapids.
19.100 The line from the head of the Creek to the "Rapids" is,it should be noted,
describedas "a provisionai lineof demarcation". Articleprovidesthat al1the
lis ofdemarcationtracedin,inferalia, ArticleIare "subjecto rectificatbyn
agreementbetweenthe two Powers,in accordancewith localrequirements"a ;nd
itwas "speciallyunderstoodthat, as regards the boundaruaced in Article IV, Commissionersshall meet with the least possible delatheoobject of such
rectification".
19.101 These three agreements, in establishing a lineof division ktween German and
Britishreas of action, startedat thecoast (at the mouth of tRey)iandel
prescribeda line goinginland, via the head of theReyoodthe CrossRiver
Rapids, andthence further northeast, to Yola. The subsequent agreementsof
March and April1913delimited the boundary inoppositedition, from Yola
towardsthe sea. The DemarcationAgreement of12 April 1913 delimited the
boundaryasfa southas BP 114(above,paragraph19.89)T.hispillar waslocated
some 10kms upstream of the Cross River Rapidsreferrto in the earlier
agreements. Those earlier agreementshad taktheline northwardfrom the
Rapids by wayof a straight line. The Marc1913 Tkaty instead followeda
different route(as describedinArticXV), and the linesouthwardsfmm BP
114 followedthe thalwegof the Cross River downthat Randpast the Rapids
previouslyreferredto.
19.102 Those provisionsof the March1913Treaty which concem title to the Bakassi
Peninsulaare consideredin Part 1of this Counter-Mernorial.As there explained,
those "Bakassi provisions"of the Ma1913 Treatywereineffectiveto transfer
territorialsovereigntyoverBakassi. It is, however,onlythose "Bakassi provisions"
which werethusdeficient,sinceit wasonlythoseprovisionswhichwre concluded
by Great Britainin excessof the rights and powersat tvestedin it. The
"Bakassiprovisions"reseverablefrom theother provisionsof the Treaty,which
canstilbe appliedaccordingto their terms (seeabove,parag8.55-8.56).
19.1M Accordingly thenon-Bakassiprovisions of the Treaty11fMarch 1913 were
effectivedelimitthe boundarybetweenthe Britishand Gennan Protectoratesto
the South and Westf BP 114,and at the present titodelimit the boundaty
betweenNigeria andCameroon. That is also the positiontakenbyCameroon. 19.104 The Sectorof the boundary hereunder considerationbegiBP 114 (ofthe April
1913 DemarcationAgreement). Althoughthis is not identifiedin Article XV
of theMarch 1913 Treaty, it is (according to parag21phof the April1913
DemarcationAgreement)located at a bend in the Cross River at a point Z1hmiles
up-stream of Obokum, and that is also the point referred to in Article XV of the
March 1913 Treatywhere the boundarypicksup the thalweg oftheCross Riverand
from there continues its southwardscourse.
19.105 At the southem end of the present boundary Sector, and for the reasons given in
Part1ofthisCounter-Mernoriatl,e boundaryto the North of the BakassiPeninsula
joins the thalwegof the Akpa Yafe(and thus the boundary described in the Treaty
of 11March 1913) atthe point neareto thmid-pointof the mouth of Archibong
Creek (see paragraph 11.8(1) above). That location on theYafefails within
ArticleXVII of that Treaty
19.106 Accordingly,the provisions of that Treaty relevthe suetchbetw~en BP114
and theNorthem limit of Bakasare Articles XV tXVll.
19.107 On the basis already explained,and subject to the considerationsnoted abow in
paragraphs18.54-18. a5d7paragraphs19.2-19. 53ieria in principle accepts,
for the Sectorpresentlyunder consideration, the delimitationof theassetdary
out in the relevant parts of the Trea11 March 1913.In particular, and in
relation to the Sector of the boundaryunder consideration, Nigeria dws not
challenge theegal validityof that Treaty.
19.108In acceptingin principle the delimitationof the bobydthe Treatyreferredto,
I
Nigeria again draws attentiotothe fact that in some places some technical
uncertaintiesattach to the agreed delimitationof the boundary. These do not mean
thatthedelimitationas such'isrejected or is in dispute.F. Conclusions
19.109 Nigeria has, in principle, no dispute with Cameroonover the delimitationof the
land boundarybetween Lake ChadandBakassi. NigeriaagreeswithCameroonthat !
the land boundary between the two States in ihat area is as described in the
instruments reliedon by Cameroon,thevalidityofwhichNigeriadoesnotquestion. 1
l
Butthis is subjectto seriousqualificationsto whichNigeriahas feit it necessaryto '
l
drawattention (paragraphs19.2-19.53above). Those qualificationshavethe result l
that those instruments cannot, as asserted by Cameroon, be regarded as the
definitivespecificationof the landboundary betweenLake Chad and Bakassi,as
sought by Cameroon. PARTIV
CAMEROON'SMARITIMECLAIMSCAMEROON'SMARITIMECLAIM-LINE
IN THEGULFOFGUINEAA. Prelinarv Issues
20.1 In thisPart of iCounrer-Mernoria l,igeriarespondstotheCamerooniandemand
for the delimitationof the respectivemaritime zones of the parties, as set out in
paragraph20 (f) of the CarneroApplication,whichdaim hasken specifiedand
particularised as aaimto a particularline inChapter5 of iMernoriai (hereafter
referredto as Cameroon'sclaim-iine). ThisPan is structuredas follows:
(1) This Chapter dealsfirstwith theCourt'sresponse,in itsjudgmentof 11June
1998,on PreliminaryObjections7 and 8 dealing withthemaritimeboundary.
It then goeson to clarify certain mattersof fact, relatingin particulartothe
present maritime claims of the parties, to current stafeof negotiations
with them andwith EquatorialGuinea, and briefiytothe existingeconomic
and otherinterestsof the parties in Gulf of Guinea.
(2) Chaprer21 deals with the applicablelaw relatingto the delimitati~nof the
three maritime wnes (territorial sea, continentalshelf, exclusiveeconomic
zone)so faras it is relevantto this case.
(3) Chapter 22 deals with certain issues of the admissibiliand ordering of
Cameroon's claim, to the extentthat thesewerereservebythe Court in its
judgmentof 11June 1998.
(4) Chapter 23thendeals withthe substanceofCameroon'smaritimeclaim-line,
showingthat its line is not in accordance with internatlaw.l
3. The Court's Judmnent on Preliminarv Obiections 7 and 8
20.2 Nigeria presentedtwoprelimiiry objectionsin respectof the maritimeboundary.20.3 Prelimii Objection7 raised twodistinct questions. As to'themaritimeboundary
as a whole,Nigeria hadarguedthat the land boundarymust be determinedfirst, and
that the maritimephase shouldaccordinglybe postponed. The Court accepted "that
it will be difficultif not impossible to detennine the delimitationof the maritime
boundary betweenthe Parties as long as the titlemer rhe Peninsula of Bakassihas
not been determined".296But it noted that as a result of its decision, the Court
had jurisdiction over the land boundary issues andthat accordingly:
"it becomes a matter for the Court to arrange the order in which it
addresses the issuesin such a way that itcan deal substantivelywith
each of them. That is a matter whichlieswithinthe Court'sdiiretion
and which cannotbe the basis of a preliminary objection.
20.4 The second aspect related only to the maritime boundarybeyon doint G. Nigeria
had pointed out that there had been no negotiationsktween the parties as to this
sector of the maritime boundary, and that the firsnotice it had of Cameroon's
maritime clah-line was when it received Cameroon'sMernorial. Cameroon did
not denythis fact. It argued rather that Articles 76 an83 of the Law of the Sea
Conventiondid not require any attempt to reach agreement, at Ieast itwas clear
that no agreementwouldbe forthcoming. TheCourt reached no conclusionon the
meaning of Articles 76 and 83. Instead it noted that:
"in this case, it has not ken seised on the basis of Article 36,
paragraph 1, of the Statute,and, inpursuanceof it, in accordancewith
Part XV of the United Nations Convention on the Law of the Sea
relating to the sealement of disputesarisingetweenthe parties to the
Convention with respect to its interpretation or application. It has
been seised on the basis of declarations made under Article 36,
paragraph 2, of the Statute, which declarations do not contain any
condition relating to prior negotiations to be conducted within a
reasonable time period. The second argument of Nigeria cannot
therefore beupheld. "298
'"
PreliminarObjections.ludgmeof 1lune 1998.para. 106.
2v ibid.
298 ibid.para109 Thusthe Court reservedto a later phase of the tase the issuesof the meaaingand
effectofArticles 76and 83. Whatever their meaning andeffectmaybe, the Court
hasjurisdictionto determinethemunder Article 36 (2) of the Statute. The Court
also notedthat, despitethe imprecisionof the ~ameroonclaim,
"there is a dispute on this subject between the Parties which,
ultimately and bearing in mind the circumstancesof the case, is
precise enoughfor it to be broughtbeforethe
20.5 PreliminaryObjection8 relatedto the effect thatanyadjudicationon theCameroon
claim-linewouldnecessarilyhaveon thirdparties, in panicular EquatoriaIGuinea.
As to this point theCourt held that:
"In order todetermine wherea prolongedmaritimeboundarybeyond
point G wouldmn, where and to what extent it wouldmeetpossible
clairnsof other States, and hm its judgment would affectthe rights
andinterestsof these States,the Courtwouldof necessiryhave to deal
withthe meritsof Carneroon'srequest. At the same tirne,the Court
cannotmle outthe possibilitythatthe impactof thejudgmentrequired
by Cameroonon the rights andinterestsof the third States could be
such that the Court would be prevented from rendering it in the
absence of these States, and that consequently Nigeria's eighth
preliminary objection would have to be upheld at least in part.
Whether such third Stateswould choose to exercise their rights to
intervenein these proceedingspursuant to the Statuteremains to be
seen."MO
It therefore heldthat the Nigerian preliminaryobjection "doesnot possess, in the
circumstancesof the case, an exclusivelypreliminary character"."'
20.6 . Nigeriareturns to these issues inChapter22 below.
ibidpara.110
ibid.. par116
mi ibidpm. 117C The Positionof the MaritimeClaims and Leeislationof the Parties
20.7 Nigeriaclaims, as it is entitled to do under internationallaw,a 12mile territorial
sea, a continentalshelf extendingbeyondthe temtorial sea out to200 miles and
beyondto the extentpermittedbythe United Nations Conventioo nn theLaw of the
Sea, and an exclusiveeconomic zone of 188 miles beyond the temtorial sea.
Attachedto thisCounter-Mernori ale the textsofthe relevantNigerianlegislation:
Temtonal WatersAct 1967 as amended(NC-M336);
(1)
(2) PetroleumAct 1969 as amended (NC-M337);
(3) ExclusiveEconomicZone Act 1978as amended(NC-M 338).
20.8 By contrast, Cameroon's maritime legislationis restricted to the Cameroon
MerchantMarine Code of 1962 as amended by Law No 74 of 5 December 1974,
whichcurrentiyprovidesfor a 50 mile territorialsea (NC-M 339).
20.9 Cameroon'slegislation embodies a clairnto a 50 mile territorialsea. That claim,
originallymade in 1974, has not been repealed. At the time of completionof this
Counter-Mernoria the position has notchangedm Cameroon has not formally
proclaimedan exclusiveeconomic zone,and has no EEZ legislation.
"
The50 mile terrimrialseaclaimis still recordedassuch. forexample,in UnHydrographieOffice
Notice12/99. 'NationalClaims m Maritime Jurisdiction' 1slanuary lW, p.1-1.Cameroon has
arguethat undeitsConstitutionthe effect ofiti ratificLawoof the Sea Conventiontorepeal
its tcrrimrial sea legimlthe extent of anyinconsistcnButtherelevant consunitionalprwision.
modclledon the equivalentarticleof the French Constinno1invalidatelegislarioninconsistentwith
amaty: it merelydisapplicsiton a basisofrecipmcity. andsuchaprocedureis whollywa claimriate
m a territorial zoneasthe urrimrial sca. Theterritorbas a sranisapplicableornes: it is a
mnc of territand does nocxison a bilarebasis.D. The stateof negotiations between the variousStatesconcerned
20.10 Sincethe argumentandjudgmentof the Court onthe PreliminaryObjections,there
havebeenno negotiationsbetweenthe partieswith respect to Cameroon'smaritime
claim-line. Nor,to Nigeria'sknowledge,havethere been any negotiationson that
Iine between Cameroon and Equatorial Guinea, or benueen Cameroon and S5o
Tomée Principe. Thisis surprising,giventhat formost of its length Cameroon's
claim-lineimpingeson maritimetemtory claimedby those two States,aswillnow
be illustrated.
20.11 Before tuming to these illustrations, it should be stressed that graphic
representationsof Cameroon'sclah-line in this Counrer-Memodah lavehad to be
based onthe vague indicationsshown in its Memonal, and in particular on the
sketchmap, "La DélimitationEquirable", reprintedhere asFig. 20.1. That is a
rough sketch-map. The island of Bioko. for example, has wthing like the
dimensionsor shape shown. The extent of the distortioncm be seen from Fig.
20.2 which showsCameroon'ssketch-mapsuperimposedon an actual map of the
region. For the purposes of illustrating its impact on the neighbouringStates,
Nigeria hastried, as bestas it can from the limitedand approximate information
given,to locatethe Cameroon claim-lineon a map. The result is necessarilwry
approximate. But the impactof Cameroon'sclaim-lineon the other States k the
regionisclearenough. The impactofCameroon'sclaim-lineon EquatorialGuinea
and on SftoTomée Principe can be seen from Fig. 20.3?M For about 80 per
cent. of its length from Point G,that claim-line cutsinto maritimezones claimed
by the other two States.
Tut EEZ boundaryclaimedbySSoTomee Principis bascdonitLaw No. 1198ondelimitatiofthe
krrin?rseaandtheexclusive econocne(NC-M 340).ItarchipelqbaEeliow,reproclaimen1978
andamendcdin 1982. SeUnitcdStat ecparunentoSiatOniceof thtljeogmpher, "LirnihtScas
No.98'.ArchipclagSrrriigtaselinSdo TomeMd Princi(Washingmn.1983). yE. Nigeria'sneeotiationswithEauatorialGuinea
20.12 Nigeria is negotiating with Equatonal Guinea on their respective maritime
boundaries. The negotiationshavebeenurgentlysought by E$uamrialGuinea with
a view to resolvingquestions about the status of the Zafirofield, which is the
subjectof overlappinglicencesas betweenNigeriaand EquatorialGuinea (butnot
Cameroon). Detailsof relevantNigerian concessions areset out below.
F. Relevanteconomicand otherinterestsin the Gulfof Guinea --.
. . ..
.--.-. .-
(i) Explorationandwploitationof continental shelf r.. .-..- .
- ...-- .
20.13 Cameroon'sclaim-lineas presentedin itsMernorialappearsas ifwrinenon a clean
slate. Buttherehasbeen massiveactivityin thegmting of concessionsand in the
explorationandexploitationof thecontinental shelfin the area inquestion,and the
whole area is, with hardly any exceptions, thesubjectof concessionsor licences
grantedby one or other coastalState. In the case of Nigeria, the relevantlicences
mostly dateback severaldecades. They fonn a continuumthroughoutthe area,
from North to South.
20.14 On the Nigerianside, the current concessions(i.e. thok apparentlyintersected by
the Cameroonclaim-line)are as follows:
-
Numberof Current Date of current Area
Concession Eiolder(s) concession (km3
(Dateof initial
concession)
OPL 230 Monipulo 10191 4&l
OPL 98 NNPClMdax 6/5/98 (March1973) 587.97 Figure20.1: CameroonMcmorial, "LaDélimitationEquitable"
LaDélimitation Équitable
Soiirce: CarneroonMernorip.556 (no previous provenance cited)Figure20.2:Cameroon Sketch-map superimposed on an accuraternapofthe regionFigure20.3: Impact ofCameroonMaritime Clairn on EquatoriaGuinea and
Go Tom6e Principe OPL 222 NNPCEI~ 23/04/93 1312.85
OPL 221 NNPCIMobil 26/02/91 2365.72
The CO-ordinatesof these concessions as at present in force are annexed
(NC-M 341).
Apan fromcertaindifficultiinthe region imrnediatelyaroundBakassi, there has
never been any protest from Cameroon at the granting or extension of these
concessions,or at subsequentexploration,drillingor exploitation.
Fig. 20.4 shows,approximately,the locationofthe Cameroonclaim-linein relation
to concessionsgrantedby Nigeria or Equatorial Guinesofar as isknown to
Nigeriaat present. It wbenotedthat there is significantoverlapbetweencertain
EquatorialGuinea concessiosndthe Nigerian concessionsL223,222 and221.
Howewr the Cameroonclaim-line appears to pass to the South of tharea of
overlap.
There are Cameroonconcessionstothe East of concessionsOPL 230, OPL 98,
OML 67, and OPL 224, with a certain degree of overlap.is is shown in
Fig .0.5. (i) Fïsheries 1
20.18 Althoughcommercialfisheries productionrepresentsonly a small proportionof
GDP in both Nigeria andCameroon, there is a major interest in artisanalfishing
incoastalareas. Bothcountriesforbidcommercialfishingwithina certaindistance
from theCoast(Nigeria,5 nm; Cameroon,2 nm), and in both countries,artisanal
fisheriesare a major sourceof employment. In Nigeria about80 per cent. of the
totalannualcatchofmarinefish (approximatel160,000mt. in 1996)derivedfrom
artisanalishmg,and it is estimatedthat morethan500,000peoplearein full-time
employmentin fisheriesinNigeria, with almostas many employedon a part the
basis. By cornparison, the number in full-the emphyment in the commercial
sectoris small(approximately2000 in 1996). But here is a major potentialto
increasecommercial fisherioutsidetheartisanazone,due tothedeclineindistant
water fishingfleersin this region over the las1decade. Tcurrentcommercial
fleet is abo200-30 t0wlers,mostlyinvolvedin catchingshrimp.
(iii N)avigation
20.19 Both parties have important interestsinedomof navigationin the region,both
in relationto commercialshipsandal1formsof Statships(naval,customs,police,
etc). Nigeriahasa particular and long-standingconcern about accessto the port
ofCalabar and the CalabarRiver.Figure20.4: Mapof existingNigerian and EquatorialCuinean Oil Concessionin
relationto Cameroon'sClaim LineFigure20.5: ExistingNigerian Concessions:Areas of Overlap
Fit0
del REY
BASIN CHAF'TER21
THE APPLICABLELAWAS RELEVANTTOTHEPRESENTCASEA. Introduction
21.1 Before turning in more detail to the circumstancesof the presenr case. sonie
remarksshould bemade as to the relevantlegalprinciples.so far as concems (A)
the territorialsea; (B) the continental shelf;and (C) the exclusiveeconomiczone.
It is useful to do this by identifyingthe relevantprinciples in the form of ten
propositions.
B. Delimitation of the Territorial Sea
(i) International law accords to each Coastal Statc, subjcct to the principle of
equidistance, a territorial seaof up to 12miles from the baseline.
21.2 This is so providedin Articles 2 and 3 of the United NationsConventionon the
Law of the Sea("the 1982 Convention"). Delimitationisgoverneclby Article 15,
whichcontrastswith Articles76 and 83 in significantuys. The territorialsea is,
of course, a zone of sovereignty,that sovereigntyto be exercised in accordance
with international law (Article 2). Again there is a clear contrast with the
continental shelf and theEEZ.
C. Delimitation of the Continental Shelf
21.3 A numberof specificpropositions aboutcontinental shelf delimitatioenmerge from
the cases. So far as theyare relevantto the presentcase, theyare asfollows. (ii) International law requires the parties, in the first instance. to attempt to reach
1.
agreement on the continental shelf
21.4 The mle which binds the parties as to the delimitation of the continental shelf
between their adjacent coasts is Article 83 of the United Nations Conventionon the
Law of the Sea of 1982, which provides as follorvs:'~
"1. The delimitation of ihe continental shelf between Srates with
opposite or adjacent coasts shall be effectedy azreement on the basis
of internationallaw, as referred to in Article 38 ofthe Sramte of the
International Court of Justice, in order to achieve an equitable
solution.
2. If no agreement can be reached witliin a reasoiiablç period of
time, the States concerned shall resort to the procçdures provided for
inPart XV.
3. Pending agreenicnt as provided for in pariigraph 1, the States
conçerned, in a spirit of understanding and co-operation. shall make
every effort to enter into provisional arrangcincnofa pmctical nature
and, during this transitiorial period, not to jeopardize or harnper the
reaching of the final agreement. Such arrangements shall be without
prejudice to the final delimitation.
4. Where there is an agreement in force ktureen the States
concemed, questions relating to the delimitation of the continental
shelf shall be determined in accordance' withthe provisions of that
agreement."
21.5 It should be stressed that this is the applicable rule siibsranrivelaw, and it is in
force for the parties. In the first instance the delimitation of the continental shelf
between two States with adjacent coasts (as Nigeria and Cameroon have) is to be
determined by agreement on the basis of internarional law in order to achieve an
equitable solution. This requirement contrasts with the substantive mle
(equidistance plus special circumstances) previously contained in the Geneva
Nigeriabecamça partyio UNCLOS on 14 August1986:Canierooon 19 November1935. UNCLOS eniemd
jntoforceon16 Novçmbçr 1994. Conventionon the ContinentalShelf, 1958, Article 6. Its meaningis tobe derived
byreferenceto successivedecisionsof the Court applyinggeneralinternationallaw
onthedelimitationofcontinentalshelfboundaries. Andthosedecisionsthemselves
emphasisethe primary need toattempt to reach an equitableresult by agreement.
aswill now be seen.
21.6 This basic ideagoes back, in terms of State practice,to the Trunian Proclamation
and, in terms ofjudicial decisions, to the Nonh Sea CorititienralSlieifcases. The
Court then referred to:
"the ideas which have alyays underlain the developnient of the legal
dgime of the continentalshelf in this field,nameIy:
(a) the parties are under an obligation toenter into negotiations
witha view to amving at an agreement,and not merely to go
thugh a formal process of negotiation as a sort of prior
conditionfor the automaticapplicationof a certain nicthod of
delimitationin the absence of agreement;they are undcr an
obligationso to conductthernselvesthat the negotiations are
meaningful, which will not bc the case when either of them
insists upon its own position without conteinplaring any
modificationof it;
the parties are under an obligation toact in sucha way that, in
@)
the particular case, and taking al1 the circumstances into
account, equitable principlesare applied,-for this purpose the
equidistancemethod can be used, but other methodsexist and
may be employed, alone or in combination,accordingto the
areas involved;
(c) the continental shelf of any State must be the mural
prolongationof its land temtory and must not encroach upon
what is the natural prolongation of the temtory of another
State."3"
'" ICIRcp~ns1969 p.6aip. 47(para.85).TheCounnotcdthatthe.negotiationsaFtuabeldbetweenrhcpartics
I hadnet ~UFC~C~b , utthatfurthernegotiatiwcrtto bo hwldothtbapisofibe prcscludgment:ihid. np.
48 @are. 87). . .
I21.7 Similarly, the Chamber in the Gulfof Mainecase referred to:
"the fact that for the delimitation of a maritime boundary - u:hetlier it
concern[s] the territorial sea or the continental shelf or the exclusive
economic zone - both conventional and customary international law
accord priority over al1 others to the criterion that tlrisdelitiritarioti
musrabove al1be soirgkr,whilealways respecringNrrenrnnotiallaw,
rhroughagreetnent berweeti rlreparties concerned. Recourse to
delimitation by arbitral or judicial means is in the finalanalysis siiiiply
an alternative to direct and friendly settlement between the
partie^."^"(emphasis added)
21.8 As noted above, the Court has not yet addressed Nigeria's argument (that
negotiationis a substantive requirenient, or at least a material pre-condition), which
was put by Nigeria as part of its seventh Preliriiinary Objectioii.jm Nigeria refers
to what was said in relation to this matter in earlier pladings, whicli it will not
repeat here.308
21.9 It should be stressed that the mle that delirnitation of the continental shelf should
be determined in the first instance by agreetiieiit, which is clearly reflected in
Article 83(1), is not the same as the general mle of admissibility reqiiiring that
there should be a dispute between the parties as to their respective nghts. Very
Littlein terms of exchanges between the parties is required in the Court's
jurisprudence for the existence of a "di~pute".~~ Article 83 (1) goes further than
that and requires the parties in the first instance to attempt to resolve that dispute
by agreement, i.e. to negotiate in good faith. This requires as a minimum thatthe
parties should have notified their respective claims and made at least some effort
to resolve them by negotiation. In fact, in al1the earlier cases where the Court has
been confronted with issues of maritime deliniitation, there had been negotiations,
in most cases extensive negotiations.
3m ICI Report91984p. 241atp. 266 (para22)
'07 Ses abovepara.20.W
SeeNPO, pp. 115-129; CR 9812,3 March 1998,pp. 4144, 48-52:CR 9815,9 Mnrch 1998, pp.51-59
3w See,forexample.the Che concerningEas~lÏmor, ICI Reports1995,~.90 (iii) It is not the function of the Court to apportion'the continental shelf by
reference to general considerations of equity
21.10 This second cardinal principlewas stated in nouncertain terms bythe Coun in the
Nonh Sea ContinentalSheifCases, and it has been adhered toever since. As the
Court said in that case:
"Delitnirationis a process which involvesestablishingthe boundaries
of an area already, in principle, appertaining to the coastal Srate and
not the determination de novo of such an area. Delimitation in an
equitable manner is one thing, but not the same thing as awardinga
just andequitable shareof apreviously undelimited areaevenrhough
in a number of cases the resultsmaybc comparable, orevenideiltical.
More important is the fact that the doctrine of the just and equitable
share appearsto be wholly at variance with whatthe Court entenains
no doubt is the most fundamental ofa.l1the rules of law relatiito the
continental shelf, enshrined in Article 2 of the 1958 Genem
Convention,though quite independentof it,- namely that the rights of
the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under
the sea existipsofacto and ab initio, by virtue of its sovereigntyover
the land, and as an extension of itin an exercise of sovereign rights
for the purpose of exploring the seabed and exploiting itsnatural
resources. In short, there is here an inherent right. In order to
exercise it, no speciallegal process has to begone through, nor have
any special legal acts tobe performed. Its existencecan be declared
(and many States have done this) but does not need to be constituted.
Furthermore, the right does not depend on itsking exercised. To
echo the languageof the GenevaConvention, itis 'exclusive'in the
sense that if the coastal Statedoes not choose to exploreor exploit the
areas of shelf appertaining toit, that is its own affair, butno one else
may do so without its express consent.
It followsthat even in such a situation as that of the North Sea, the
notion of apportioning an as yet undelimited area, considered as a
whole (which underliesthe doctrine of the just and equitable share),
is quite foreign to, and inconsistent with, the basic concept'of'
continental shelf entitlement, according to which the process of
delimitation is essentially one of drawing a boundary line between
areas which alreadyappertain to oneor other of the States affected. The delimitation itself must indeed be equitably effected. but ircannot
have as its object the awarding of an equitable share. or indeed of a
share, as such, at all, -for the fundamental concept inx,olveddors not
admit of there being anything undivided toshare out. Evidentlg any
dispute about boundaries must involvethat there is a disputed marginal
or fringe area, to which both parties are laying claim? so that any
delimitation of it which does not leaveit wholly to one of the parties
will in practicedivide it between them in certain shares, or opente as
ifsuch a division had been made. But this does not mean thar there
has been an apportionment of something that previously consisted of
an integral, still less an undivided whole" .'1°
21.11 Later decisions have referred to "that refashioning of geography" repudiated in the
Noah Sea Continental Shey cases,'" and ha\e refused to engage in such an
exercise.
21.12 The position was usefully summarized by the Coun in the Li~u/Mul~u case, when
it said that:
"The nortiiative character of equitable principles applied as a part of
general international law is important because these principles govern
not only delimitation by adjudication or arbitration. but also, and
indeed primarily, the duty of Parties to seek first a delimitation by
agreement, which is also to seek an equitable result. That equitable
principles are expressed in terms of general application, is immediately
apparent from a glance at some well-known examples: the principle
that there is to be no question of refashioning geography, or
compensating for the inequalities of nature; the related principle of
non-encroachment by one party on the natural prolongation of the
other, which is no more than the negative expression of the positive
rule that the coastal State enjoys sovereignrights over the continental
shelf off its coasts to the full extent authorized by international law in
the relevant circumstances; the principle of respect due to al1 such
relevant circumstances; the principle that although al1States are equal
before the law and are entitled to equal treatment, "equity does not
necessarily implyequality" nor does it seek to make equal whai nature
3''ICI Repoits1969p. 6ai pp.22-23(paras.18-20)
'11Anglo.FrPnr.hArbirroriori(.1977) 18UNPJAA 3arp. 92 (para.195). Sirnilarlyai pp. 113-1!4 (paras.244.245),
p. 116(para249) has made unequal; and the principle that there can be no question of
distributive justice."'
21.13 Sirnilarly, in its most recent delimitation decision, in the Jan Meen case. the
Court, quoting with approval part of the passage from the 1969judgrnent cited
above, said:
"judicial treatment of maritime delimitation does not involve the
sharing-out of something held in undivided shares: Thus the law does
not require a delimitation based upon an endeavour to share out an
area of overlap on the basis of comparative figures for the length of
the coastal fronts and the areas generated by them. The task of a
tribunal is to define the boundary line between the areas under the
maritime jurisdiction of two States; the sharing-out of the area is
thercfore the consequence of the delimitation, not vicc ~crsa.""~
(IV) International law does not give special rights in the field of continental shelf
delimitation to "geographically disadmntaged States"
21.14 There is a distinction in international law between land-locked States, i.e. States
with no Coast line at all, and the more difise categoty of States b-hich are
"geographically disadvantaged". Land-locked Stateshave certain specific rights
. .unàer the law of thesea, including the right to a flag and a qualified right of access
to the sea.)14 But international law, and in particular the 1982 Convention, does
not attempt to "correct" the effects of geography and history by a territorial or
jurisdictional redistribution of maritime zones in favour of States which can be
312
ICI Reporrr1985p. 13atpp. 39-40 @ara.46)
'j3 CuseconcerningMaritimeDelirniratiin the AreabétweenGreenlandad JanMqven.ICIReporrr1993p.
38 spp.M-57 (para.64)
On therighw a flagandtofreedomsof navigationsee UNCLOS.Articlç17. 58(1). 8(1).90.On access
ta the seMd transitscePan X. In additionthçrisa limitedrighioan çquilahlshare.on rhebasisof
agreemenl.inanysurplusof fisheriesresourccsinadjacentEEZs:Arti69. 82 (4). Therearalsuvarious
proceduraandotherprovisions inrelatitotheadministratiof &Arca. underPartXI. described as "geographically disadvantaged". The very limited additional rights
given to such States can be seen from the followingreview of the 1982 Convention.
21.15 The key provision is Article 70, entitled "Right of geographicaIli; disadvanta:ed
States". This is contained in Part V of the Convention. which is entitled "The
Exclusive Economic Zone". There is no equivalent pro~isionin Pan VI, on "The
Continental Shelf". Article 70 (1) provides thar:
"1. Geographically disadvantaged States shall have the right to
participate, on an equitable basis. in the exploiraiion of an
appropriate part of the surplus of the living resources of the
exclusive economic zones of coastal States of the same
subregion or region, taking into accwuntthe relexinr çconomic
and g~ogtaphicaicircumstances of ailthc Statcscuttcerriedand
in conforrriitywith the provisionsof tliis article anof articles
61 and 62."
But the term is defined in a rcstricted way.by paragraph (7):
"2. For the purposes of this Part, "gengraphically disadmntaçed
States" means coastal States, including States bordering
enclosed or semi-enclosed seas, whose geographical situation
makes them dependent upon the exploitation of the living
resources of the exclusiveeconomic zonesof other States in the
subregion or region for adequate supplies of fish for the
nutritional purposes of their populations or parts thereof, and
coastal Stateswhich can claim no exclusiveeconomic zones of
their own."
It may be noted that Cameroon can claim an exclusive econornic zone (althoughit
has not expressly done so). It is therefore "geographicallydisadvantaged", for the
purposes of Part V only if its geographical simation makes it dependent upon
fishing in theEEZs of other States in the region "for adequate supplies of fish for
the nutritional purposes of their populations or parts thereof". In fact there is no history of Camerooniandependenceon fisheriesoutside its own wters, although
there is a traditionoffree movementof artisanalfishermenthmughout thea~ea.~'~
21.16 No issue arises in the presentcase as to the possiblerights of Cameroon under
Article 70. Thepoint tobe stressedhoweveris the deliberaterefusalof thedmfters
of the Conventionto makeany specialprovisionfor "geographicallydisadbantaged
States"in respectof the basic entitlementto maritimezones. Rather than do this,
they gavea rather limitedentitlementto "participate,on an equitablebasis, in the
exploioition of an appropriate part of the surplus of the living resources" of
neighbouring EEZs. That right relates only to fishenes @utnot continentalshelf
resources), and is signifïcantlyqualified by other provisionsof Anicle 70. In
addition, UNCLOS makes special provisionfor considerationof the intercstsof
gwgraphically disadvantagedStates in relation to activities in the area beyond
national jurisdi~tion.~'~When the drafters of the Convention wantd to make
special provisionfor geographicallydisadvantaged States,they knewperfectlywell
how to do so. Indeed in respect of certain categoriesof States (for example,
archipelagic States), specialrovision was specificallyniadefor extendcdmaritime
claim~.~"
21.17 A leading study on the positionof land-lockedand geographicaiiydisadimntaged
States tracesthe developmentof the 1982 Conventionand concludes,based onthat
experience,that:
"The case for special pnvileges for GDS [SC. geographically
disadvantagedStates] seems even less cogent than that of their tand-
lockedallies."3'8
"' See abovepara. 20.18
3ia Sc.Articlw148, 152(2), 160(fi),254, 266
'17'
SecWCLOS. Article 2(1)& Pan iV
318 S.C.himie, Lnnd-hcked and Geographicilly Disadvanmged SrarcsiInremari~~lLow qfrhe Seo
(Oxford, ClarendPress, 199atp. 32 In fact no such case for special privileges is recognised in international law in
relation to maritime delimitation.
(v) In draming continental shelf boundaries, international lalv does not refashioii
the geographical situation of the parties
21.18 A consistent therne in the case-law dealing with the delimitatioof maritinle zones
is that it is not the function of the Court to "correct" apparent inequities arising
fmrn the accidents of history and geography, so as to refasliion the political
geography of the region concerned. It is tme that the Court has been sensitive to
minor geogrdphicai features which rnight have ari undiily distortirig cffect by
'reference to the underlying geognpliical situation of the "gcnerdl dimiion of the
coast" or the length and direction of each State's coastal fmntage. But those
underlying situations are taken as given, and thcre is no example where the
mainland coastal frontageof a State has been discoiintedor given anything lcss than
its full effect.
21.19 As so often, the canonical staternent of this position is in the following statement
by the Court in the NorthSea ContinenralSlieifCases:
"Equity does not necessarily imply equality. There can never be any
question of completely refashioningnature,andequity does not require
that a State without access to the sea should be allotted an area of
continentalshelf, any more than there could be a questionof rendering
the situation of a State with an extensive coastline sirnilar to that of a
State with arestricted coastline. Equality ito be reckoned within the
! same plane, and it is not such natural inequalities as these that equity
could rernedy. But in the present case there are th= States whose
North Sea coastlines are in fact comparable in length and which,
therefore, have been given broadly equal treatment by nature except
that the configuration of one of the coastlines would, if the
equidistance rriethod is used, deny to one of these States treatiiient
equal or comparable to that given the other two. Wereindeedis a case
where, in a theoretical situation of eqiiality within the saine order, an
l
I inequity is created. What is unacceptable in this instance is that a
State should enjoy continental shelf rightconsiderablydifferenrfrom
those of its neighboursmerely because in the onecase the coastlineis
roughly convexin form and in the other it is markedly concave.
although those coastlines are comparable in length. It is therefore not
a question of totally refashioning geography whatever the facts of the
Situation but, given a geographical situation of quasi-equality as
between a number of States, of abating the effects of an incidenul
special feature from which an unjustifiable differenceof treatment
could result."'19
21.20 This passagewas quotedwith approvalbythe Arbitral Tribunalin theAnglo-French
case, in the following passage:
"In short, it is disproportion rather than any general principle of
proportionality whichis the relevantcriterion or factor. The equitablc
delimiîationof the continentalshelf isnot. as this Court has already
emphasi~~din paragraph78, a questionof apportioningor sharingout
of the continental shelf amongst the States abuttingupon it. Nor is it
a questionof siniplyassigningto them areas of the shelf in proportion
to the length of their coastlines, forto do this uwuld be to substitute
for the delimitation of boundaries a distributive apportionnient of
shares. Furthemore. the fundamental~rinciple that the continental
shelf appertainsto a coastal State as being the natural prolongationof
its territory places definite limits on recourse to the factor of
proportionality. As was emphasized in the Norrh Sea Continental
Shelfcases, there can never.be a question of completely refashioning
nature, such as by rendering the situation of a Staie withan extensive
coastline sirnilar to thatof a State with a restricted coastline; it is
rather a questionof remedying thedisproportionalityand inequitable
effects producedby particular geographical configurationsor features
in situationswhereotherwisethe appurtenanceof roughlycomparable
attributionsof continentalshelfto eachStatewouldbe indicafedbythe
geographicalfacts. Proponionality, therefore is to be used as a
criterion or factor relevant in evaluating the equities of certain
geographical situations, not as a general principle providing an
independent sourceof rights toareas of continental shelf."'''
"' ICIReports 1969p. 6 atp49-50 (para.91)
3w (1977)18 UNRlAA p. 3 ap. 58 (para.101)(emphasisadded). See alsoibip.61 @ara.108).referring
m thcHurdDttp FauliZont asmtrely "afaciof namre".21.21 The passage from the 1969 judgment was also referredro with approval by the
Court in the Tunisia-Libacase. There Libya hadproposed ignoring the Tunisian
island of Djerba as an "exceptionalfeature". TheCourt rejected rhe idea. As it
said, Libya'sobservationhad been made:
"in a section of the argument devotedto the question,first raised in
fact by Tunisia, of whether the one State or the other is favouredby
nature, or the reverse,as regards its coastline; an argumentwhich the
Court does not consider to'be relevantsince. even acceptingthe idea
of natunl advantages or disadvantages, 'itis not such natural
inequalitiesas these that equity couldremedy'"'
21.22 The sarneprinciple was affirmedby a Charnber of the Court in the Girifof Maine
case. The Chamber rernarkedthere that:
"the Parties have repeatedly charged each orher wirh rryirrg to
refashion natureor geognphy in the caseof thisor that feature of the
area. It is not possible to accept the UnitedStates claim that the
south-westwardprorrusion of the Nova Scotian pcninsula frotn the
Chignectou isthmus is an anomaly, a geographical distoi~ion to be
treatedas such, and tobe considered anirregular derogation fromthe
generalsouth-south-west/north tennooftth-eaatetn seaboard
of the North ArnericanContinent. It is likewise not possibleto accept
Canada'sclaim that the existenceof so substantiala peninsula as Cap
Cod may be ignoredbecause it forms a salient on the Massachusetts
Coaston the western side of theGulf of Maine. The Chamber must
recall that the factsof geographyare not the product of human action
amenable to positive or negativejudgment, but the result of natural
phenomena, so that theycan only be takenas theyare.
21.23 In theLibya-Malracase, the Court, after referringto basicprinciples of continental
shelf delimitation in a passage quoted alreadystressed that:
"' ICI ~eporn 198p.18atpp:63-64(para.79)
3?2 ICJReports1984p. 246 p.271(para.37)
'13 Above.para.21.12 "The nature of equity is nowhere more evident than in these welI-
establishedprinciples. In interpretingthem, it mustbe borne in mind
that thegeography whichis not to be refashioned meansthoseaspects
of a geographical situation most germaneto thelepalinstirutionof the
continental shelf: In a semi-enclosedsea like theMediterranean.that
referenceto neighbouringStates is particularly appositef .or. as will
be shown below, it is the coastal relationships in the whole
geographical context thatare to be taken account of and
respected."324
Andthe Court wenton to add that:
"The pertinent general principle, to the application of which the
proportionalityfactormaybe relevant,is that therecanbe no question
of 'completelyrefashioningnature'; the method chosenand itsresults
mustbe faithfulto the actualgeographicalsituation. "3:s .
(vi) In delimiting continental shelf boundaries, international law places special
wcight on the practice of the parties and on existing arrangetnents for the
exploitation of the continental shelf
21.24 It is clear that the conductof the parties inestablishingde facto lines by such
practicesas the grantingof oil concessions andexploration and exploitatiop nermits
can have major significance so far as their continental shelfboundaries are
concerned. This is so, quite apart from the question whethersuchpracticesgive
nse to a tacitly acceptedboundaryor producelegaleffectsas a formof estoppel.
21.25 In particular,the Court paid very carefulrespect to this factoi rn theTunisia-Libya
case. It referredinitiallyto:
'''
[ClRepor~ 1985p. 13atp.40 @ara.47). citing IReports1982atp. 61(para.74) :
ICIRepora 1985p. 13atp. 45 @ara. 57) "the existence of.a de facto line from Ras Ajdir at an angle of some
26" east of north, which was the result of the marner in which both
Parties initially granted concessions for offshore exploration and
exploitationof oil and gas. Thisline of adjoiningconcessions, which
was tacitly respectedfor a number of years, and which approximately
corresponds furthemore to the lineperpendicular to the coast at the
frontier point which had in the past been observed as a de facto
maritime limit, does appear to the Coun to constitute a circumstance
of great relevance for thedelimitation.Since this is a matter closely
bound up with the practical method of delimitation. the Coun will
examinethe nature and genesisof the linewhen itcornes ro that part
of the Judgment."326
And it went on to reemphasize this "highly relevant" factorin a later passage,
which isof sufficientimportanceto be quotedin full:
"The circumstance alludedto in paragraph 113 abovewhich the Court
finds to be highly relevant to the deterniination of the method of
delimitation isa circurnstance related tothe conduct of the Parties.
TheCourt bas already considered theclaims made by theParties, each
in favourof a differentlirie,unilaterallydeterniinedbut, iris assened,
tacitly respectcd or accepted; both the ZV 45' Iine advanced by
Tunisia as a recognized boundary of a fishing zone. and the direct
northward lineasserted as boundary of the Libyan petroleum zones,
have been found by the Court to be wanting in those respects
necessary to ensure their opposabilityto the other Party. On the other
hand, the history of the enactment ofpetroleum licensing legislafion
by each Party, and the grant of successive petroleumconcessions,
during the period from 1955 up to the signing of the Special
Agreement, shows that, as noted in paragraph 21 above, the
phenomenonof actualoverlappingof claims did not appearuntil 1974,
and then oniy in respect of areas some 50 miles from the coast. A
finisian eniargedconcession of 21 October 1966 wasboundedon the
east by a 'stepped'line( a fom apparentlydictated by the grid/block
systemfor grant of concessions) the eastern angles of whichlay on a
straight line at a bearingof approximately 26" on the meridian. In
1968 Libyagranted a concession (No.137) 'lying to the,eastward of
a line running south/southwestfrom the point 33" 55'N, 12" E to a
point about one nautical mile offshore' theangle thereofvieued from
Ras Ajdir being 26"; the western boundaries of subsequent Libyan
concessions followed the sarne line, which, Libyahas explained,
U6 ICIRepora 1982p. 1atp. 71 @ara96) , . 'followedthe direction of the Tunisian concessions'. The result was
the appearance on the map of a defacto line dividin? concession areas
which were thesubject of active claims in the sense that exploration
activities were authorized by one Party, without interference. or (until
1976)protes&, by the other. The Court does not of course overlook
the fact that the areas to which a legal claim was assened by both
Parties were more far-reaching; Libya claimed sovereign rights as far
Westas the meridian of Ras Ajdir, and ~unisia claimed as far as the
ZV 45"line, and in 1974adopted an equidistance lineas south-easrern
boundary of its concessions. The actual situation, however. n;is that
which has just been described."327
The Court gave effect to the line in question, notwithstanding thatit had not been
established as an actual agreed line.'"
21.26 Inthe subsequent ApplicationJor Revisionand Interpmrion. hrought by Tunisia,
the Court had occasion to emphasize that:
"In other words, what the Court regarded as significant was not
rnerely the fact that Libyahad, apparently, limiled itç 1968concession
so as not toencroach on Tunisia's 1966concession; ituasthe fact that
both Parties had chosen to use as buundary of the permits or
concessions granted by them a line corresponding, with whatever
degree of approximation, to a line drawn from Ras Ajdir at 26" to the
meridian. It was the conduct of Tunisia which was releinnt, just as
much as that of Libya, even though when the Tunisian permit was
granted in 1966, there was no existing Libyanconcession in the area.
Thus the choice of-a stepped south-eastern boundary corresponding
approximately to a 26" line was an indication of what line Tunisia
considered equitable. Similarly, the choice of Libyaof the point 33"
55'N ,2" E as the point of origin for Concession No. 137 -that point
being, it should be reiterated, at a bearing of 26" from Ras Ajdir -
suggested that a 26" line was at that time also regarded by Libya as
equitable, an interpretation confirmed by Libya's use of that line for
Concessions NC 41 and NC 53."329
IZ7
ICI Rcpure 1982p. 18atpp.83-84 (para.117)
ihid.atp.85 @ara.121)
319 ICIReports1985p.192 atp. 213 @ara.37)21.27 In the Gulfof Maine case a Chamber of the Coun rejected the argument that a de
facto continental shelfboundaj had arisen by the conduct of the parties in each
granting concessions and not objecting to theother's grants of er;plorarionlicenses.
Without in any wayqualifying the position taken by the Court in the ïiinisia/Lit?~i
case on this point, the Chamber distinguished thatdecisionon a number of grounds:
(1) First, the facts were in dispute; the United States denied ihat it had
acquiesced in the Canadian concessions, or that itsown permiü respectedany
particular line."'
(2) Secondly, the periodof alleged acquiescence, even if proved. ulas too short
(1965-1972). and overlapped with the perid when thédispute had already
ari~en.~"
(3) Thirdly, for at least pan of this period it was clear tliere was no
acquiescence. In Novcnibcr 1969a United States note made itclear that rio
Canadian concessions in the disputed area ~wuld be recogni~ed."~ It had
earlier (in 1965) granted exploration licensesbeyond the alleged defacto
line."'
Fourthly, the activity in question yas exploration, not exploitation - in the
(4)
words of the United States, "it was confronted on Georges Bank with
Canadian seismic exploration of minor importance, which involved neither
drilling nor the extraction ofpetr~leum".'~
''O
ICI Reporfs1984p. 246 atp. 310(para.149)
ibid. ap.310-311 (para.151)
''' ibid arp.308 (para.142)
"' ibid. atp. 307(para. 136)
' ibid. Fifthly,there wasno evidenceof an earlier (e.g. pre-colonial)modusvivendi
(5)
which had beensubsequentlyaccepted by the newlyindependent Stateswhen
theybegan to grant petroleumconcessionsthemselve~.~~'
Thusthe decisionis to be understoodas relatingto the particularfacü of thatcase,
and it does not displace -indeedas a decisionof a Chamber,couId not displace -
the clear positiontaken by the Court in 1982.
21.28 The facts of the presentcase were reviewedin Chapter20, and will be discussed
in more detail in Chapter 23. It is sufficientto note here that not one of the five
factors held to be relevanton this point by the Charnberexists in the present
case.336
21.29 In theLibya/Maltacase, theCourtalsoheld that thehistoryofthedisputedareadid
not affectthe matter. It noted that:
"It is not argued by either Party that the circumstancesin this case
gave rise to 'the appearanceon the map of a de fmo line dividi
concessionareaswhich werethe subjectofactiveclaims' ,whichmight
be takeninto accountas indicating'theline or lineswhich the Parties
ihemselvesmay haveconsideredequitableor actedupon assuch', as
the Court was ableto find inthe case concemingthe Conrineml Sheij
(TunisiaLibyanArabJamahiriya) (I.C.J.Reports 1982, p. 84, paras.
117-118). In its pleadings,however,Malta recounted how it had in
1965informedLibyaof its intentionto delimitits continentalshelf by
means of a median line, and stated thatuntil Libyamade a counter-
proposal in 1973,Libyaremained silent in face of Maltais claim to
sucha delimitation;Maltacontended thatthispatternofconduct could
be viewed 'eitheras a cogent reflectionof the equitablecharacter of
Malta'sposition or as evidenceof acquiescence by Libyain Malta's
positionor as precludingLibya,in lawas in fact, fromchaliengingthe
vaiidityof Malta'sposition'. Maltareferredalsoto thequestionofthe
335 ICIRepw 1984p.246atp. 310 (para.150)nit Counmadethesamedistinctionbemn stisrnicacuvities
and'operationsinvolvingthe acNalappropriaor other useof the nanial resoof theareasof the
coatincntshtlwhicharcin dispute"inthAegeanSeacase(RequestforIndicatioflnterimMeasuresof
ProtectioICJRepors 1976 p3 atp.10 @ara.30).
336 Seeklw. para23.18, sub-paras.(&i(iv) northem boundariesof certain Libyanconcessions, and theexemption
of the licencees from theduty to carry out pemleurn activitiesnorth
of the median line, and contended thatthese aiso confirmedMalta's
submissionthat 'by their conduct, the Partieshave indicatedthat the
medianline is, to saythe least,very relevantto the finaldetermination
of the boundary in the presentcase'. Libyadisputes theallegalionof
acquiescence;ithasalso contended thatMaitesepetroleumconcessions
followedgeomo~phologicalfeatures in a manner consistentwith the
'exploitabilitycriterion',whichs deniedby Malta. It also contended
that Malta, at the the of the enactmentof its1966 ContinentalShelf
Act, implicitlyrecognizedthe significanceof an areadescribedas the
'riftzone'area, which Libya,as will be explainedbelow,regardsas
significant for thedelimitation;this contentionMaitaalso rejects.
25. The Court has consideredthe factsand arguments,broughtto
its attentionin this respect,particularlyfrom thestandpointof itsduty
to 'take into account whatever indicia are available of the
[delimitation]line or lines which the Partiesthemselves may have
consideredequitableor acted upon as such' (1C.J. Repons 1982, p.
84, para. 118). It is howeverunableto discem any parternof conduct
on eithersidesufficiently unequivoca o constituteeitheracquiescence
or anyhelpfulindicationof any viewof either Pdrty as to what would
be equitable differingin any way from the viewadvanced bythat
Wrty beforethe Court. Its decisionmust accordiily bebased upon
the applicationIo the submissionsmade before it of principles and
rules of internationallaw""'
nius the conductof the partiesin that casewasneitherconvergentnor unequivocal;
moreover it relatedto proposalto delimit, or to paper concessionswhichhad not
been implementedby drilling, let alone exploitation and thedevelopment, in
relianceon the concession,of a substantialinfrastmcture.
21.30 This distinctionwas evidentlyrelevantfor the Court of Arbitration in the Saint-
Pierre and Miqueloncase. It referredto certain explorationpet-mitshavingbeen
issued, and notedthat:
33' 1U Reporu1985p. 13 [email protected]) "after reciprocal protests,no drilling was undertaken. In the present
circumstances, the Court .has no reason to consider the potential
mineral resources as havinga bearing on delimitîtion. """
21.31 To summarise, the mere unilateral granting of concessions. or seismic activityin
disputed areas, are not enough to affectdelimitation. Buruphere areas are acnially
the subject of drilling andtor extraction processes, pursuant to concessions granted
by a State, this is of the highest relevance to delimitation,especially where the
activity in question occursover a considerableperiod of time. and is not protested
by neighbouring States. Concurrent, or relatively concurrent. activiiy by
! neighbouring States, evenin the absence of a formal agreement, may be decisive
I of the legal position.
(vii) Proportionalityof coastlinesis relevant in assessing the eqiiitablecharacter of
a delimitation but cannot bc uscd as the basis for "sharing" shelf resources
21.32 Finally, it is appropriate to say a word about proportionaIityof coastal frontages,
which is undoubtedly relevantas a factor in assessing the equitableness of a
delimitation, andit mayalso be relevant, amongstother factors, in helpingto select
the technique of delimitationto be used. But thecases are unanimous in holding
.that it is not as such a criterion of apportionment, because that wouldinv~lve
notionally parcelling out amongst the claimants proponionate shares in an a priori
undivided whole, which, as has been seen already, is untenable. In other words,
proportionality is applied as a criterion only a post not ex ante. It is a critical
standard, and not, as such, a basis for apportionment.
(1992)95ILR645 atp.677(para.89)21.33 This was said very clearly, for example, by the Coun in the Liha/i\falta case. in
a passage cited with approval in laterde ci si on^."T^hus it said ihar:
"to use the ratio of coastal lengths as of itself determinative of the
seaward reach and area of the continental shelf proper ro each Party,
is to go far beyond the use of proportionality as a test of equiry. and
as a corrective of the unjustifiable difference of treatment resulting
from some method of drawing the boundary line. If such a use of
proportionality were right, it is difficult indeed to see what rooni
would be left for any other considerationi for it would be at once the
principle of entitlementto continental shelf rights and also the method
of putting that principle into operation. Its weakness as a basis of
argument, however, is that the use of proportionality as a method in
its own right is wanting of support in the pracrice of Stares. in the
public expression of their views at (in particular) the Third United
Nations Conference on the Law of the Sea, or in rhejurispmdence.
Itis not possible for the Court to endose a proposal at once so far-
reaching and so novcl. That does not however mean that the
'significant differencein lengths of the respectiveoastlines' is not an
element which may be takcn irito account at a çerrain staze in the
delimitationpro ces^"^'^
21.34 Even relative supporters of the proportionality principle. such as. for example,
Judge Shahabuddeen, have referred to "the unchallenged proposition that
proportionality is not in itself a direct principle of delimitation".'"
D. Delimitation of the Exclusive Economic Zone
21.35 Article 74 of the 1982 Convention provides for the delimitation of the exclusive
economic zone between States with opposite or adjacent coastç. It provides:
e.g.inJflnMuyeriICI Reports1993atp. 69 (para.69); andalsubytheCouofArhitralioniSrPierwund
Miquelon (CanadalFrance1992. 95 ILp. 645at p. 669-670 (para.89)
' ICI Reports1985p. 13atpp.4546 (para.58). See also al pp.53-54 @a74-75).
311 SeetheJanMoyen case ICI Reportr1993atp. 167(ludgçShahahuddeens.eparaEopinion) The delimitationof the exclusiveeconomiczone between States
"1.
with opposite or adjacent coasts shall be effectedby agreementon the
basis of internationallaw,as referred toin Article 38 of theStatuteof
the International Court of Justice, in order to achieve an equuitable
solution.
2. If no agreementcan be reached withina reasonableperiod of time.
the States concernedshall resort to theproceduresprovidedfor inPan
xv.
3. Pending agreement as provided for in paragraph 1. the States
concerned, in a spirit of understandingand CO-operation.shaI1make
every effortto enter intoprovisionalarrangementsof a practicalnature
and, during this transitional period, not to jeopardize or hamper the
reaching of the final agreement. Such arrangementsshaIl be without
prejudice to the finaldelimitation.
4. Where there isan agreementin force betwcen theStatesconceriied,
questions relating to the delimitation of the exclusiveeconomic zone
$hall be determined in accordance with the provisions of that
agreement. "
21.36 Again a number of specificpropositions about EEZ delimitationcan be identified,
as follows.
(viii)International law does not ipso jure attribute an EEZ to a State
21.37 Thus Article 70 (2) of the Convention refers to "coastal State...which can claim
no exclusive economic zones of their own". This is to be contrasted with
Article 76(1) of the Convention,which, followingArticle 1of the 1958 Convention
on the Continental Shelf, articulates the principle that every coastal State has a
continental shelf,automatically andby operationof internationallaw - theprinciple
ofipso jure appurtenanceof the continentalshhf, which was afirmed by the Court
in 1969 and has never been departed fr~m.~~~ Thus the continental shelf is "the
naruralprolongationof [the] landterritory"of the coastal State,althoughof course
'" . Nonh Seo ConrinenrolShCases.ICI Repori1969 atp. [email protected]) this is "without prejudice to the question of deIimitation of the continental shelf
between States with opposite or adjacent coasts" (Anicle 76 (1). (10)). No such
doctrine is aniculated in Anicle 56 or in other provisions of rhe Conventiondealin:
with the EEZ. Moreover the proclamation of an EEZ entails substantive and
procedural obligations on the coastal State under the Convention (see Articles 61.
62 and 75), obligations which are normally fulfilled pursuant to le_eislation
specifically enacted for that purpose.
(ix) Delimitation of the EEZ is a legally distinct operation froni deliniitatiori of the
continental shelf
21.38 Although they overlap (and in many cases coincide) it isstilI thc case that the EEZ
and the continental shelf are legally distinct areas and their delimitatiisa legally
distinct exercise. Thus the Court has held that it is not entitled to draw a single
maritime boundary between Iwo States in the absence of an express agrcetiient
between the parties to that effect."' It has also been Iicld that such an express
agreement has the effect of disapplying otherwise applicable niles relating to the
continental shelf as such (e.g. Article 6 (1) of the FourthGeneva Convention of
1958):
"The purpose of the present proceedfngs is not, however, to Abtaina
delimitation of the continental shelf alone, as it might have been if
they had taken place prior to the adoption by the two Parties of an
exclusive fishery zone and the consequent emergence of the idea of
delimitation by a single line. Their purpose is - and both Parties have
abundantly emphasized the fact - to draw a single delimitation line for
both the continental shelf and the superjacent fishery zone. It is
doubtful whether a treaty obligation which is in ternis confined to the
delimitation of the continental shelfcan be extended, in a mamer that
would manifestly go beyond the limits imposed by the strict criteria
governing the interpretation of treaty instruments, to a field which is
evidently rnuchgrcater, unquestionably hekrogeneous, and accordingly
"'
JdnMuyen, ICJRepors1993 p.38 atpp.57-58(paras42-44) fundamentally different. Apart from this formal. but important.
consideration, there is the more substantive point that such an
interpretation would, in the final analysis, make the maritime wter
mass overlying the continental shelf a mere accessory of rhat shelf.
Such a result would be just as unacceptable as the converse resulr
produced by simply extending to the continental shelf the application
of a method of delimitation adopted for the 'water column' only and
its fish resource"'44
This does not mean that the same line may not be drawn, delimitin~ both
continental shelf and EEZ; indeed there may even be a presumption in favour of
such a line. But that is not the same thing as a single maritime boundary.
(x) Delirnitatioii of the EEZ requires a prior attcmpt at agreement betiwen the
parties
21.39 In the sarne way as Article 83 does in relation to the contincntal sheif, Article 76
requires that delimitationof theEEZ "shall be effectedby açreenient on the basis
of international law". There is no reason to give these words any different
interpretation orffect than the same words in Article 83.
'" CulfofMainc,ICJReporrs1984 app. 301-30(para.119) CHAPTER 22
THE ISSUESFORTHECOURTATTHISSTAGEOFTHE
PROCEEDINGS A. Introduction
22.1 Before examining the substance of Cameroon's maritime claims. two important
preliminary issues remain as a result of the Court's judgment of 11 June 1998.
l
These relate, in different ways, to the issues whichthe Court should or can deal
1 with at this stageof the proceedingsin respect of the maritime boundary.
I
B. Prioritv of determination of the land boundarv
22.2 Asnoted in Chapter 20, the Court held that the questionwhether itshoulddeal first
with the land boundary did not goto jurisdiction and was "a matlçr which lies
urithinthe Court's discretion s.345
22.3 That discretion should, in Nigeria's respectful view, now be exercised so as to
allow the Court to deal with the land boundaryissues fi~t.''~ Th, primacy of
land oversea, and the need for a staning point on land for any niaritinle boundary,
are elemental considerations, repeatedly reaffirmedin the Coun's jurispmdence.
The existence of a dispute over sovereigntyof relevant features is a frequent
obstacle to negotiationson maritime delimitation, andif a court or tribunal lacks
jurisdiction todeal with the land boundary issuesi ,tscapacitytoengagein maritime
delimitation will be correspondingly affe~ted.'~' Where a case is brought by
special agreement, the parties may be able to avoid such difficulries, e.g. by
specifyinga starting point for the line by agreement which avoidsthe necessity to
decide on disputed issuesof land ~overeignty.'~'
'" PreliminaryObjections.Judgmentof11 June 1998,para.106;above.para. 20.3
'* SeeNPO, pp.114-115;CR 9812.3 March 1998, pp.46.48; CR9815. 9 March 1998, p.56. .'
"' As itwas inthe Anglo-FrenchArbiiralionwith rcspectiothe deliiiiirai01nthe'territorlea betivççnthe
ChannellslandsandtheFrenchCoast:scc (1977) 18UNRlAA p. 3ai pp22-24 (paras.16-21)& qalso stp. 72
(para.139)
-
As indie GuvoJMnine case ICIRep. 1984,p.265. fpara.20). p332, (para.211).22.4 Equally, the Court has jurisdiction over the land boundary.
But this leaves
unresolved an important question of legal logic and a fundamenml issue of method.
The Court cannot begin the task of maritime delimitation before deterniinin: the
location of the land boundary. Nor can it proceed on the basis of a prejud,menlent
as to the location of that boundary. The relevant considerations will be different
if Cameroon's contentions are upheld than they wilI be if Nigeria's are upheld. and
there may be other elements in the eventual judgment on the land boundary.
especially relating to Bakassi, which are relevant forthese purposes.
22.5
The need to definitively establish the landboundary between the parties, before
embarking on issues of maritime delimitation, was emphasized by the Court in the
Tunisia/Libyacase. Referring to a Conventionof 1910which evtinruallyestablished
the land boundary between the Iwo adjacent States aftcr a period of sonie
uncertainty, the Court said:
"The Court regards the 1910 Convenrion as iinponant for the
considerationof the present case, because it definitively establisIlcdthe
land frontier between the two countries: Both Parties have agreed in
recognizing the relevance of the land boundary starting point: this only
reinforces the significance of Ras Ajdir as a basic point of reference.
In this sense the Coun believes that the 1910 Convention constitutes
a relevant circumstance for the delimitation of the continental shelf
between the two Parties. "349 . .
It must be equally relevant that the parties to the present case have notso agreed.
22.6 Nigeria asks the Court to rule on this question at this stage. It is respectfully
suggested that the parties are entitled to know the Court's position on a question
which, even if it does not go to jurisdiction or admissibility, clearly involves a
preliminary point of method, and which has already been fully argued. In the
interests of the priority of issues and the economy of picading in maritime
349 ICIRep. (1982)p. 18 ap. 66(para.85). delimitationonlyafterthe.keyelement,the startingpointof themaritimeboundary.
has been decided, it is appropriateto sepa'ratethe two phases of the case. This
would respect the basicprinciple that "legally a coastai State's rishts over the
continental shelfare both appurtenantto and directly derived from the State's
swereignty over the territory abuttingon that continental~helf''.'~~It has the
further merit that it will allow the parties, immediatelyfollowing the Court's
judgment on the land boundary, to consider their respectivepositionsand then to
negotiate on the basis of that position - as is indeed required by the relevant
substantive legalprovisions,Articles76 and 83 of the 1982 Convention.
C The soecial vosition of Eau~torial Guinea and SfioTonlée Priiici~
22.7 A second issuearises at the stage at which the Court [caches the merits of
Cameroon'smaritimeclaim-line, towhichNigeria's PreliminaryObjection 8 has
beenj~ined.'~' This concernsthe lack of jurisdiction tomle on areas claimedby
Cameroonwhichare also claimedby third States. The questionhas already been
fulIyarg~ed,"~and Nigeria willaccordinglyoniy makeone or two supplementary
observations at thisstage.
22.8 The firstpoint to make is that theextentof physicalencroachmentof Cameroon's
claim-lineon areas claimedby Equatorial Guinea andSio Tomé e Principecan be
seen with reasonableprecision from Figure20.3 (above). Indeed for the great
majorityof its lengthfrom Point G, the Cameroonclaim-line impinges at leastas
directlyon thoseStatesas it does on Nigeria.
22.9 The extent of that irnpingementcan also be illustrated in a different way.
Significantareas to the Westof the ~ameroon claim-lineare claimed, as against
. .
''O asthcCoun n&d in the AegeanSeo Chse ICI Rcp. (1978) paip. 36 @ara 86)
j5 Secpara.20.5above.
SeeNPO. Ch. 8: CR 9812.3March 1998. 52-61: CR 9815.9aic ch1598,pp. 59-63 Nigeria, by Equatorial Guinea and, further south, by Sio Tomée Prin~ipr.'~"
Those disputedclaims havenot been resolved. What wouldbe the implications for
those third Stateclaims of a determinationthat (unspecified)areas to the Eastof the
Cameroonclaim-line appertainto Cameroon? ByupholdingCameroon'sclaim-line
vis-à-vis Nigeria, the Court would by clear and necessary implicationbe rejecting
the claims of Equatorial Guinea to these areas. It maybe noted that there appears
to be no precedent for a continentalshelf off a State's Coastbeins a discontinuous
enclave. There is no doubt that, inshoreoff Bioko,the shelf pertains to Equatorial
Guinea. If, a few miles further Westit is held by the Coun that a panicular area
pertainsto Cameroon, it followsbynecessaryimplicationthatthe Equatorial Guinea
continental shelf hasterminated.
22.10 It should besrressedthat theCourt's decisionin theLibya/Mialtrc ~ase, thatit lacked
jurisdiction todecide as between the parties oti the delimitatioriof maritime areas
claimed by a third State, still stands.354That decision wasquite independent of
the questionwhether Italy should have been allpxd to ititcrveiieunder Article 62
of the Statuteto protectits legal interests.
D. Conclusions
22.11 For these reasons, which supplementthose already presented tothe Court, Nigeria:
requeststhe Court to hold that the maritime delimitationphase ofthe case be
(1)
deferred untilafter the determinationof the land boundary;
'" Thereis no evidencethatthoseareasareclaimedby EquatorialGuineaor Sio Tomee Principe(on theone
hand)andCariieroon(on theorherhand). Bu1rhisis only becauiNigçria'skniiwlçdgç.Csiiieroon'sclairn
hasneverbeenprçscniçdu>them. Irwasdevçl(ipçd.as farastheavailablediploiiiaticshuws.solely for
rhcpurposesof thepresentcase.
'jd Cnse Concernin tge ConiinenialSkel(LibyonArabI~mlii~yolMelra) ICIRep. (1985)p. 13 app. 27-8
(paras.22-23)is firmly of the opinion that the Court lacks jurisdicrion to deal with
Cameroon's claim-line, to'the extent that it irnpinges on areas claimed by
Equatorial Guinea andlor SXoTomée Principe. or ar least that Cameroon's
claim-line is inadmissible to that extent. MARITIMEDELIMITATION:
THEREBUTTALOF CAMEROONS ' CLAIM-LIhTE A. Introduction
23.1 In this Chapter, Nigeria responds to the specificclaim-linepresented bu Carneroon
in its Mernorial,that is to say, its claim-line beyond PoinG. This involvesthe
presentationof a series of objections based on the factuaIand legal considerations
developedin the previousChapters.
1
23.2 An initial point to be notedis that Cameroon only addresses the substance of the
i
maritime boundary beyond Point G of the Maroua Declaration of 1975. which
1
1 "essentially concerns the territorial ~aters".'~'At the time of Maroua. both
parties claimed territorialseas extendingbeyondPoint G. and, at leastso far as its
intcriial legislation is concerned, Cameroon still doe~.~~'Carnçroon for itspart
professesto accept the maritiiiiedelimitationmade by that Declaratioii,andcIaims
a linebeyondPointG, stretchingfirst immediatelywestwards,thensouth-westward.
23.3 As the Court held in its Preliminary Objections judgnient, there are important
differences between maritime boundary casesbroughtunder the OptioiialClause or
by specific agreementunder Article 36 (1) of the Stat~te.'~~In the present case,
Cameroon is the Applicant, and it is for Cameroon to assert and justify its claim.
Nigeria has no similar onus. As noted already, itis Nigeria's position that
Cameroon'smaritime claim beyondPoint G:
(1) shouldbe postponed until thedeterminationof the extentofthe landterritory
of the Parties, on whichitis dependent;
(2) shouldbe determined in the-firstplace by agreement, in accordancewith the
parties' clear and express obligationsunder Articles 76 and 83 of the 1982
MC. para.5.66
356Seeabove,para.20.8
' Preliminarybjecrion,udgment,II Jun1998.para.109 Convention, and on the basis of the land boundary as determined by the
Court;
(3) in any event, in the circumstances of the present case. cannot be decided on
because the claim presented by Cameroon necessarily and inevitablyinvolves
the rights of third States, specifically Equatorial Guinea and Siio Ton16e
Principe, which have not consented to the jurisdiction of the Court.
23.4 In the circumstances, Nigeria does not formulate itsou7nmaritime claim vis-à-vis
Cameroon in this Counrer-Menlorial. It is ready to negotiate with Cameroon,
irnmediately following a judgment of the Court on the land boundary. with a view
to achieving a niaritirne delimitation of the respective [territorialsea, continental
shclf and (as applicable) EEZ, in accordance with international la%,.
B. The Basis of Camerooii's Clairn-Line: Affirmative Aclion at Ki~cria'sExpense
23.5 Before turning to an exposition of the reasons why Cameroon's claim-line is
unfounded in international law, it is necessary first tosummarise the basis on which
Cameroon's claim-line emerges from itsMe~norial.'~~
23.6 Cameroon begins by observing that the geographical situation "combines some of
the worst geographical anomaliesexamined in the maritime delimitation cases that
the Court has ~een"."~ It likens its situation to that of the Federal Republic of
Germany in 1969, but this is of course inaccurate. In the Nonh Sea Conrinental
Shelfcases, the three States (a) did not ask the Court to draw a line; (b) brought
their case by special agreement, and (c) accepted that theiroffshore continental
shelf boundary was already determined by agreement with the United Kingdom.
. .
MC. Chaptxr5
' MC. para5.9UA The present case is different in al1three respects; in panicular. the position of the
offshore State(s), a non-issue in the Norfh Sea cases, is central to the present
dispute.
23.7 Indeed this is effectively concededby Cameroon in the followin~sections of its
pleading. Cameroon defines "the relevant zone", i.e. the disputed area. as the
whole area situated within 200 miles of the baselinesof the two Parties, including
Bioko and Sao Tomée Principe, referred to inaccuratelyas the "three i~lands".~~
It should be observed that the "relevant area", on this definition, includes
substantialland areas and territorial seas of two other States.
l
23.8 Carneroon then goes on to enurnerate various gcographical factors which are
-relevant to the delimitation of "the relevant area".'61 These include "[tlhe
irnrnediateand dominating presence of the large island of Bioko only about 12
nautical miles off the Coastof Cameroon", and its subsrantial "amputationeffcct"
on waterswhich "otherwisewouldbe Cameroonian", as well as ...
"The presence further out at sea of the archipelago formed by the
islands of Sao Tome, and Principe, ... It is notable that the three
islands, Sao Tome, Principe and Bioko, are virtually arranged in a
straight line in a South-WestlNorth-East direction ata 4.5" azimuth.
Their configuration could hardly put Cameroon at a greater
disadvantage. "362
"the three islandsform a screen blocking the maritime coasts from aII
the coastal Statesof the region with the exceptionof Nigeria".36.'
In addition ..
3M
MC.para.5.98. sub-para.(vi) and5.99. sub-pa(x). Infact therearemorethan-rhreeislands'. Equatorial
Guinea includesthe islands Annobon.Corisco, ElobeyGrande andEloheyChico. S2oTom€ e Principis
an archipelagStat whichincludçsvariausislandswithinitsproclaimedarchipelagichasclincs.
"] MC,para.5.98
'" ibid.. win(vi)
MC. para.5.99. poin(x) "The fact that the coastline continues tum on itsaxis alons the bank
of the Rio Muni in Equatorial Guinea, the land'porrion of thai State's
territory, thus adding an extra element which reduces the niaritinie
rights of Camer~on."~~ !
These are,.no doubt, evident geographicalfacts. but severalpoinü haveto beniade. '
Fint, they have nothing todo with Nigeria; the 'fault" is Bioko's. for beins rhere ~
it is. Secondly, references to "amputation" irnply a pre-existin: limb; references
to the "maritime rights" of Cameroon being "reduced" imply that those rights were
somehow pre-existent and larger. In short, the "maritime rightç" of a State are to
be determined in the abstract, without any referenceto its geo_graphx.
23.9 Despite repeated protestations that it is dealing only with a bilaieral situation,
Cameroon goes on to prescnt a "global" approach. It does so on the express hasis
that the disadvaniagespresented to itby the existenceof Equatorial Guiriea (both
Bioko and the rnainlandof Rio Muni) and Sâo Tomée Principe can and should be
corrected, in its favour, at the expense of Nigeria. This approach can be seen,
clearly, in the followingpassages:
"geographical peculiarities of the present case..mean that the Court
cannot avoid taking into account the existence and geographical
situation of these [third] States, facts that can have an inRuence on
what the equitable solution should be in the present case"'"
"Far from attempting to 're-create nature'. a delimita~on based on
equitable principles should... take into account al1situations relevant
to the zone, and the result should include a reasonable degree of
proportionality between the continental shelf zones and the lengthof
the coastlines concemed [viz, the coasts of al1 four States]. Such
delimitations shouldalso reflect andcorrect any distortion such as the
blockage or 'amputation' effect caused by any island close ro the
coasts (Bioko), and adequately take into account the existence of
islands simated further off"'66
364 MC, para.5.%.point (vii)
MC. para. 5.104
MC. para.5.106
. .. "The line must also take into account the presenceof the large island
of Bioko, not to establish the rights ofCamemon in relation to
Equatoriai ~uhea ...but rather to reflectthe existenceof that large
island asa geographicalfact, at the expenseof Cameroun, ina zone
rharshouldbe equirablydivided amongal1the Sraresin the region.
Just as the modem Law of the Sea, fully applicable due to the
rat~cation of the 1982 Convention by the Parties, requires an
'equitable solution'and notjust an 'equitableline',a situationsuchas
thatexisting in the present case requirea global baiancingof rhe
equities, of the advanragesand disadvanragesbenveenrhediferenr
Sraresof rhelittoralofrhe BighrofBiafra."'"(emphasisadded)
"In this situation, in which Cameroon is disadvantagednotnly due
to a change inthe directionof the coastline,butso due to the very
marked general concavityof its coastline,it has in addition the extra
drawbackof the presenceof a large islanddirectlyoppositeits coasts
and sitiiatedpreciselin the axis of the change in direction of the
Coast;moreoverCameroon'saccess tooceanicresourccs is hindered
by the presenceof asmallarchipelago Statefurther out asea. That
is a situationof a uniquecoinplexitywhich, asis shownahve, hrings
togethcr theniostunfavourableelementsof al! the maritiiiieboiindary
cases. Whatever thescenario, Cameroonisthe coastalStatethat is
disadvantaged."'''
23.10 Cameroonconsequentlycallsfor a globaldistributionoftherelevantmaritimezones
1 by reference to theprimary criterion of the proportionalityof al1"relevant"coasts,
althoughthe numericaldetailsof the adjustmentare notprovided, and the mapin
I
questionis imprecisein the extreme. According toCameroon:
"This form of adjustmentis certainly the most rationaland balanced
method, as weil as the one most likely to leadto an equitableresult,
in this region with an exceptionailycornplex configuration andin
which anextraordinary accumulationof unfavourablegeographical
elements contributesto put Cameroon at a severe disadvantage as
comparedwith its neighbour~."~~~
36'MC, para.5.114
3" MC. para. 5.115
369MC, para. 5.123 Cameroon asserts that "the proposed line represents an equitable result in so far as
itimplements reasonable proportionality between the two states affe~ted"."~ but
the passage fmrn the Court's judgment of 1969, that Cameroon goes on to quote.
refers to "the reasonable degree of proportionality ... ktween thr: extent of tlie
continental sheif areas appertaining to the coastal State and the length of its Coast
measured in the general direction of the coa~tline".~~' In the present case. the
Court has no idea what areas are divided by the line(s) proposed by Cameroon;
indeed, the calculations on the basis of which this "proportionality" is tested are not
disclosed.
23.11 This methodology calls for two preliminary comments.
Firsr, it is as difficult for Nigeria as it would be for the Court to assess this
methodology at the level of detail, because the details are not provided. Nigeria
therefore calls on Cameroon to provide thçm in its Reply. and resenws the right to
comment on points of detail in its Rejoinder.
Secondly,quite apart from issues of detail, the method proposed by Cameroon (the
onlymethod proposed by it) is globally unacceptable. Overall, Camemon's line is
based on a overt claim for affirmativeaction to redress the position where it is "the
victim of strong geographical prejudi~e"~'~as a result, o\,envhelmingly, of .the
presence of third States.
23.12 It is Nigeria's position that, even if Cameroon's claim is admissible and within the
Court's jurisdiction to decide (which, for the reasons stated in the preceding
Chapter, is not the case), that claim is misconceived and does not accord with
existing international law, or with long-standing arrangements in the area in
question. The bases for these general objections will now be outlined.
MC, para. 5.134
311 ICI Rcp. 1969 p6 ntp.54. para. 101 (D)(3)
" MC. pûta. 5.135. C The Basis ofCameroon's Claim-Line: a "maritime evclusionline" excludineNigeria
23.13 Carneroon'smisunderstandingof the Court's 1969judgment. noted in paragraph
23.6 above,is of great significance. Maritimedelimitation is precisela formof
delimitationofareas appurtenantto the coastal State. It is not a drawingof lines
in the sea regardlessof their effects,or of the areastherebyattribured tothe States
concerned. Although in some of the cases, the Court u-asauthorized to draw a
preciseline, this wasalwayswith aview to identifyingtheareasof continental shelf
which were to beattributed to the Statesconcerned. But what is claimed by
Cameroon is preciselya line,not an area ofcontinental sheorEEZ. It isentirely
conceivabiethat rnost,if not all, pointsaiongor inimediatcly totheeastof that line
wouldbe held toappertainto other coastal statesin theregion, EquarorialGuinea
or SâoTomee Principe. Insucha case the implications of theCourthaving upheld
Carneroon'sclaim-lineas betweenNigeriaand Cameroon wuld be negated. This
. . isnot a case, such as was referred to by the Court in 1969, where maritime
delimitationonly appliesto marginal anddisputedareas ("only where there is a
disputeand oniy in respectof the marginal areas involved")."' The wholearea,
withina short distancebeyondthe Coast,is in dispute, sinceit is clairnby other
States(as wellas by Nigeria vis-à-vishoseStates).
23.14 In other words,in this casethe Court is not concernedwith "theappurtenanceof
a giwn area" at all, but withthe opposabilityto Nigeriaof anarbitraryline, poorly
designatedby Carneroon andwhollyunrelatedto thepractice of the partiesor to
anyprior public claimof Cameroon. Theeffectof theCarneroonclairn-lineis not
to attributecontinental shelfor EEZ areas to Cameroon,sincetheareas to theeast
of the line may verywell appertain, and indeed for the rnostpart do actually
appertain, to other coastal statesin the region, or, at least, are claimedby thern.
The effect of the Carneroon claim-lineis not to delimit maritinic zones 'butto
' ICIRtp.1969ai p. 32 (pa46) exclude Nigeria from theirsubsequent delimitation. It is not a maririme boundary
but a maritime exclusion line.
23.15 As noted, this misconceives the function of the Court in maritime delimitation. and
as one might expect the misconception has further implications for thewayin which
the Court is to perform its function. Here the comments of the Court in the
TunisiaLibyacase are pertinent. Referring to the importance of proportionality
(which is, after all, the primary criterion on which Cameroon relies), the Court
noted that ...
"it is clearly not possible for the Court to apply this concept, by way
of touchstone of equitableness, to the method or methods ir may
indicate, unless it can arrive at a reasonably clear coiiceptiori of the
extent of the areas on each side of the eveiirualline ...""'
23.16 Again in the Liba-Malta case the Court took intoaccount disproportionatecoastal
lengths in adjusting themedian line in favourof Libd, andthen chccked the result
by reference to the arcas awardcd. It said:
"The relationship between the lengths of the relevant coasts of the
Parties has of course already been taken into account in the
determination of the delimitation line; if the Court tums itçattention
to the extent of the areas of shelf lyingon each side of the line, it is
possible for it to rnake a broad assessment of the equitableness of the
result, without seeking to define the equities in arithmetical terms.
The conclusion to which the Court comes in this respect is that there
is certainly no evident disproportion in rheareasof sheifarrributedto
each of the Punies respectively such that it could be said that the
requirements of the test of proportionality as an aspect of equity were
not satisfied."'75(emphasis added)
23.17 In the present case, if Cameroon's claim-lineis adopted, or anything in the same
form, such criteria will be excluded, since the precise extent ofNigeria's maritime
''' ICI Rçp. 1982atp. 78 (para. 108)
" ICJ Rep.1985p. 13 ap. 55@ara. 75) zones will be,apparently,fixed, butliterally nothingwill be knownabout the estent
of Cmeroon's maritime zones. It will not be possible totest the outcomepos~Iioc
by reference either to coastal frontagesor to areas awarded. since the effect of the
decision will be purely unilateral.
D. In anv event, Cameroon's Clairn-Line lacks anv basis in international law
23.18 In addition, and without inany way derogating from what has been said in the
precedingChapter on the issues of jurisdiction and admissibilityof the Cameroon
I
claim-line, that claim-line is unfounded in international law, inrer aIia for the
followingreasons.
(i) Encroachrnent on natural prolongation of Nigeria11coastal frorit
Inthe NorthSea ContinentalSlielfcases the Court laiddownas a basiccritcrion for
delimitation, thatit should "leaveas much as possible toeach Party al1those parts
of thecontinentalshelf that constitutea natural prolongationof itsland territoryinto
!
and under the sea, without encroachment on the natural prolongationof the land
territory of the ~ther"."~ Yetthe Cameroon line in its sidewaysmovementfrom
Point G westwards and then south-westwards radically intermpts the natural
prolongation of Nigeria's land territory. It is excludedas an "equitablesolution"
on this ground alone. It maybe added thatthe proposed claim-linealso encroaches
on the natural prolongationof Equatorial Guinea, as is evident from Figure 20.3
above.
ICI Rep. 1969atp.53 (para.101) (ii) Complete disregard of considerations of contiguity
The proposed Carneroon line beyond Point G is drawn in complete disregard for
considerations of relative distance from the various States. For more than 80% of
its length, the line is closer tnvo other States (Nigeria and EquatorialGuinra. or
Nigeria and Sao Tomée Principe, or Equatorial Guinea andSio Tomée Principle)
or even to al1three, than it istoCameroon. For the remainin: 20% of its distance
it is closer to Nigeria than to Cameroon. In short the line flouts the notion that
distance is a key criterion for the detennination of the continental shelf. No doubt
anticipating that criticism, Carneroon argues that "the 1982Conventionon the Law
of the Sea ...dealt [the equidistance principle] a death-bl~",'~' and refers to
"[tlhe principle according to which equidistarice isnot a constraining principle in
international custornary ~aw".'~~ Thus, according to Carneroon not merely is
equidistance not a principle; there is actually a principlethat itis not a principle!
This is tantarnount to denying the relevance of distance as a criterionitimaritime
delimitation, which is, of course, what theCatncroon claim-line actually does.
The
tme position is quite otherwise. Although the Court held in 1969, and has
consistently reaffirmedsince, that equidistance is notrequired evenprinia facie (i.e.
in the absence of special circumstances), nonetheless it has always affirmed that
distance is relevant, and it has frequently begun withsome forrnof equidistanceline
before seeking such modifications to it as rnaybe required by the circumstances of
the case. Thus, although equidistance as such is not required. the Court must be
able to affinn that the areas awarded to a State pertain to itrather than to other
States, and relative distance is highly relevant here. But if relative distance is a
criterion for drawing the line(or even for checking a Iine already drawn on other
grounds), the Carneroon claim-line fails.
"' MC. para.5.69
MC. para.5.76 (iii) Complete failure to take into account the practice of States concerned in the
Gulf of Guinea: 1- Nigeria and Cameroon themselves
The Cameroon claim-line would require areas which are the subject of long-
standingconcessions, andof explorationand exploitation activitypursuantro those
concessions, to be transferredfrom Nigeria, or respectivelyEquatorial Guinea. to
Cameroon. No court or tribunal dealing with maritime delimitation has ever
displaced long-standing, consistent arrangementsof this character. The existing
situation was outlined in Chapter 20. As far as Nigeria is aware, Cameroon has
neverat any stage protested againstthese arrangements. Indeed iü ownconcession
line very largelyconfirmsthem. The arrangementshavenot bccti in f0~e foronly
ashortperiod of time (asin the GulfofMaine). Theyare not equivocalor disputed
(as theCourt held in Libya/Malta). They go back in rnanycases for decades, and
the general arrangement they reRect has been the basis of al1 subsequent
development in the relevantwaters. Those arrangementsby themselves show the
long-km acceptanceof the parties of a generally appropriateline for the purposes
of petroleum exploration and exploitation in that area, irrespective of the still
conrinuingdispute over the Bakassi peninsula itself.."' But even if the line
between the concessions is regarded as a merely de facto line based on the
concordantpracticeof the parties -as the Court held to betme in the Tunisia/Libya
case3g - those arrangements have been progressively acted on for a considerable
tirne, and they haveresulted in a consolidated series of concessions, inuestments,
of exploration and productionwhich has been unprotested(except in theirnmediate
area of Bakassi) by any Party. It is, with respect, inconceivablethat the Court
should say that large areas affected by this settled pattern of arrangements,
expectations and vested rights should now be effectively transferred toanother
State, with al1the regulatory,fiscaland other consequencesthat wouldentail.
"' This ismbjectiotheareasorninooverlapshownin Figur20.5 above..
Above,para.21.25(iv) Complete failure to take intoaccount the practice of States conceriied in the
Gulf of Guinea II: - Nigeria and Equatorial Guinea
It is tme that the arrangements mentioned in the preceding paragraph were made
and acted on as between Nigeria and Cameroon in the offshore areas to the north
and west of Bioko, and they did not directly involveEquatorial Guinea. However
the position as between Nigeria and Equatorial Guineais also well establishrd.
though more recently than in the case of the inshore areas. It is described in
Chapter 21 above. There is no complete concordance berweenthe concession areas
granted for the purposes of exploration and exploitation by Nigeria and Equatorial
Guinea. On the conirary, as showriin Figure 20.4 aboye, there isa substantial areo
of overlap, and there is an even niore substantial area of overlapping claims. But
the point for present purposcs is that the Cameroon claim-line cuts right thruugh
this area, and brsects existing producirig fields(the Zafim field, in particular). Yet
Cameroon has never previously made claims tothese areas, has ncver notifiedthern
(as far as Nigeria is aware) to anyone. There is no record thai it protestcd
Equatorial Guinea's grants of concessions in this area, which are shown in
Figure 20.4. Those grants are well known in the industry, and derails of them are
readily available from the various scouting services. There was, and is, nothing
secret about them. Faced with these realities, the sudden Cameroon claim to these
vested rights can only be described as out of touch with reality.
(v) Disproportionality of coastal fronts
There is a whole suite of problems associated with Camermn's reliance on
proportionality as the cardinal basis for delimitation. First, proportionality of
attribution of continental shelf byeference to the-relevant coastal leiigths cannot
provide, as Cameroon appears to. think, the cardina1 criterion for maritime
delimitation. Rathet it has aerpost function, as a basis for checking the equitable character of a proposed delimitation.'" Secondly, the relevant coastalfronts of
Nigeria and of Cameroon depend of course on the question of sovereignty over
Bakassi, which is in dispute in these proceedings. Thirdly, Camemn has not
bothered totell the Court, exceptin vague and generalterms, howIongthe relevant
coastal fronts are. But it can be gleaned from the CameroonMemorio! that
Cameroon wishes tocount, as against Nigeria, areas of coastal frontageto the east
of the strait between Bioko and Cameroon (a stiait which is of course wholly
temtonal sea) ailthe waydown to its boundary with Rio Muni. There is no sense
in which areas of Cameroon's coastline further east and south of the strait are
relevant coasts in terms of any delimitation with Nigeria. The Cameroon coastal
frontage (leaving Bakassi to one side) for this purpose may be approximately
designatecias the area betweenErong Point andDeburqaPoint. Itis approxiriiately
53 kilometresin length. It rnaybe conipared with thesouth-facingcoastalfrontage
of Bakassi, approximately21 km. in length, and thefurther long sector of relevant
1 NigerianCoast,from WestPoint to CapeFonnoso, whichis appmxiriiatcly246 km.
inlength. Fourthly, in applyingthesc relativecoastalfrontages, eveii asa criterion
for the equity of a proposed delimitation, it is necessary to know what is being
delimited, but atpresent theCourt does not knowthis, becausethe actualCameroon
claim to maritime temtory vis-&vis Nigeria has not been disclosed, no doubt
because the iine includes areas which certainly belong to other States.'"
(vi) Attempts to redistribute maritime zones in the Gulf of Guinea on the bais of
"global equity"
As already demonstrated, the "methodology"adoptedin Camemon's Mernorial, to
the limited extent that it is actually disclosed there, involves a franlcand overt
redistribution of maritime zones in the interests of Cameroon and coctrary to the
ICI RCP .1969) np.53 @ara.101.point@)(3))
38'Irsccrnscltar that Camcroon inmind a.area; sincc it dcscribos ita4"medCri':MC, para.5.136.
Inthe contt~t delimitation,a meIinccannot be modest. interests, in particular, of the island States in the Bay ofBiafra. This is perhaps the
most emphatic example of an attempt to remake a geographical situaiion that has
It is based on a clear fallacy. The location of any State is a
so far been avowed.
function of its social, political and legal history and of the interplay of varioiis
forces, indigenous and other. For the purposes of maritime deliniitation. the
gwgraphy of the world is a simple datum. As the Chamber felicitously put it in
GuifofMaine, geographicalfacts are "the result of natural phenornena. so that tliey
can only be taken as they are".383 For a State to treat itself as "victimised" by
gwgraphical facts and the reality of other States in close proximity to itis highly
problematic, and courts and tnbunals have consisrentiy refused to correct much
more important cases of "discrimination"or "victimisation" than the mere presence
off-shore of popiilous islands belonging to otlier States. For example, the Court
will not take into account such vital factors as the lack of land-based resources,
poverty, underdevelopment, etc.384It is this sheer fact, the fact that some States
have longer coastlines than others, or are located onconcave coastlines, or are ciit
off by off-shore islands, that is the detemining element. Cameroon secks to
reverse that fact by the device of marititile delimitation; its attempt is in principle
unjustified.
E. The issue of enclaving
23.19 A concem which has been raised in several cases is the problem of potentially
enclaving a State party to a delimitation, and where possible tnbunals have sought
to avoid doing so. In the Guinea/Guinea-Bissau arbitration, the Arbitral Tribunal
referred to the general gwgraphical area of the dispute, and said that:
'' ICJ Rcp. (19'84)p. 24a1p. 271@ara. 37)
3H SW e.g. Liby.n/MalrICJ Rep. (1985)arp. 41@ara. 50),cited witapprovalbytheCourt inJon Muyen, ICI
Rep; (1993) at p. 74 @ara.80) "When in fact - as is the case here, if Siena Leone is taken into
consideration - there are three adjacent States along a concai,e coast
line, the equidistance method has the other drawback of resulting in
the middlecountry being enclavedby theother two and thusprevented
from extending its maritime temtory as far seaward as international
law permits. In the present case, this is what would happen to
Guinea, which is situated between Guinea-Bissauand Siena Leone.
Both the equidistanceliriesenvisagedamve too soon at theparalle1of
latitude drawn from the land boundary between Guinea and Sierra
Leone which Guinea has unilaterally taken as its maritime
boundary. "''j
23.20 Similarly, in the SI Pierreand Miqueloncase, the Tribunal declined to enclavethe
French islands, giving them a narrow projection or comdor out to the 200 mile
limit. The Tribunal noted that ...
"There is no foundation for claiming that the frontalprojection of
SaintPierre et Miquelon in this area sliouldend ai the 12mile iimit of
the temtorial sea. On the other hand, siich asearvardprojectionmust
not be allowedto encroach upon or cut offa paraflelfrontal projection
of the adjacent segments the Ncwfoundlandsouthern coast.
23.21 Thus where possible maritime delimitationwill be camed out in such a way asto
avoid cutting off the land temtory of one of the States, thereby enclaving it.
However, that desideratum does not assist Cameroon in the present case, forthe
following reasons.
(1) In the GuineaIGuinea-Bissaa urbitration the two statesconcemed, andothers
in the region, were located along an open coast the general direction of
which was convex, although Guineaitself was located in a slight concave
depression of the Coastbetween itstwo neighbours. There was noquestion
1
that al1three States faced the open sea, and there were no off-shore islands
3" (1986)25ILM 252 at para102,Secalso at para. 107. The TribcbnsiittofludgcsLachs(i'resident).
BtdjaouiaodM'Baye.
(1992)31LM 1145 atp. 1170 @ara.70) beyonda few miles from the coast. Thus it waspossible in thar geographical
context, without there being any question of refashioning geography, to
exclude extreme claims by Guinea-Bissau which would have the effect of
cutting off Guinea from any significant maritime zones.
Similarly, in Sr Pierreand Miqitelon, the Tribunal declined to enclave the
(2)
French islands, any more than to allow them tu cut off the frontal projection
of the Newfoundland coast. The result was an unusual narrow projection
seawards. However, once again the maritime coastal frontages there were
open to the sea; there was no further island, let alone an island State, to the
seawards directly opposite St Pierre and Miquelon, as there is in the case of
~amerooti.~~' Nor was there any lengthy history of gntiting of
concessions, explontion, drillingand extraction by Canada and vther States
to the south east, in the area of the narrow proje~tion.~~~
(3) In the present case, by contrast, the problem isprecisely the existence OFa
major off-shore State, Eqiiatorial Giiinea, and beyond that an archipelagic
State, SZoTomée P~cipe. The existenceof those Statescannot be ignored,
and yet the Court cannot detennine as between Nigeria and Cameroon, what
their legitimate claims are to be.
(4) Leaving aside for the moment issues relating to the Court's jurisdiction over
third States which are not parties, the Court neds to be alert to the fact that
in the present case the choice is not, as it was in thGuinea/Guinea-Bissau
or Sr Pierreand Miquelon arbitrations, between enclaving and not enclaving
the tenitories of one of the Parties. By cornpanson with its restncted
position to the north of Bioko, Cameroon also has a coastal frontage to the
'" Asthe Courtof Arbitrationsaid: "auseaward projectionmus1nbs allowed toencraacb uponor cul off
a pdel frontalprojectionon üs adjacentsegmentsof theNewfoundlandsnuthemcoast." Se6 (1ILR) 95
645ntp. 672@ara. 70):ccalso at pp. 672473 (paras.72-73)
AS mtedabove:paragraph21.30 east and south of Bioko,down to its land border with Equarorial Guine at
Cape Campo. In short, lookingat the matterglobally, itis inevitablein the
presentgeographical circumstancesthat a certainenclavingeffectwill occur:
that is a simplecorollaryof the geographical situation of Cameroonvis-à-vis
Equatorial Guinea. There isa questionwhether itis Carneroonor Equatorial
Guineathat will be enclavedb ,ut thatis not a question to bedeterrninedin
unilateral proceedings brought against Nigeria.
F. General Conclusion
23.22 In Chapter21, the applicablelawwassumrnarizedin the form of teiipropositions,
adopted in the 1982 Convention and in the case-law. It can be seen that
Cameroon's generalpositionon maritimedelimitationin thiscase contradictsor at
leut disrcgards each andeveryonc of thosepropositions:
(1) International labvaccords to each coastal nautical, suhject to the priiicililc
of equidistance, a territorial sea of up to 12 miles from the baseline.
Cameroon's legislationstill incorporates aclaim to a50 nm territorialsea.
(2)' International law requires the parties, in the firstinstance, to attempt to
reach agreement on the continental shelf.
Cameroon has made no attemptto negotiateor agree on its claim-line,of
which Nigeria hadno prior notice whateverbefore Cameroon'sMernorial
wasfiled.(3) It is not the function of the Court to apportion the continental shelf by
reference to general considerations of equity.
Cameroonseeks just such an apportionment
(4) International law does not give special rights in the field of continental
shelf delimitation to "geographically disadvantaged States".
Cameroonclaimsa specialright to compensationin the conrextof maritime
delimitation onthe basis thatit is the victimof geographicaldiscrimination.
(5) In drawing continental slielf boiind~rics, internatioiial law cannot
refashion iiature ignoring the geographiral situatioii of tlie parties.
Cameroonasks the Court effectivelyto ignore the geographicalsituation in
the Gulfof Guineaand to refasliiontiaturc.
(6) In delimiting continental shelf boundaries, international law places
specialweighton the practice of the parties and on existingarrangements
for the exploitation of the continental shelf.
Cameroon's claim-line wholly disregards the established, relatively
concordantconcessions practiceof both itselfand Nigeria.
(7) Proportionality of coastlines is relevant in assessing the equitable
character of a delimitation ex posf but it cannot be used as the basis for
"sharing" shelf areas and resources as an ab initio criterion.
Cameroonreliesonproportionalityasthe criterionforsharingoutcontiticntal
shelf resourcesbetween fourStates. (8) International law does not attribute ips oure to a State an EEZ.
Cameroonclaims delimitationof an EEZ it has notget formallyclaimed
(9) Delimitation of the EEZis a legally distinct operation froin deliniitatioii
of the continental shelf.
Cameroon claims a single maritime boundary withoutthe asreement of
Nigeria.
(10) Delimitation of the EEZrequires a prior attempt at agreement between
the parties.
Therc has beenno suchattempt.
23.23 To summarise, the underlying basis of the Cameroon claim. as avowedin its
Met?torial,is evidentlythe reconstitutionof the geography of the Gulf of Guinea,
wherebyNigeria'smaritimerights, evidencedby long andpublic practice, would
be truncatedandEquatorialGuinea'smaritimezones drastically reduce dOthepoint
of its becomingan enclave. It is clear that such a claim, never beforeadvanced,
never subjected to the testof negotiations with any neighbouring State, is
inadmissiblein theseproceedings. But itis the only claimthat Cameroonmakes
in its Mernorial. It is not the functionof Nigeria, in a case brought under the
OptionalClause, to reformulateCameroon'sclaim in a formwhich might -at least
on ihe basis of some prior attempt atnegotiation - be admissible.389As itstands,
389 Inits Meinonol. Cameroon remarks that "If an alternativeline of demarcationissuggested.based upon the same
principles of equity and proportionality. the Republicof the Creservethe righlo explore it and
explain it al ~herelevanttime." (MC.5.128) . .
II is unclear Üiwhai this Thçrcshavcbceii no negotiations betwccnthc parties. and neitlier Party willhavc
the rigwl "explore" and "explain" any salution decidetheCourt. Thal faciunderlinesgwdc sensc
of Articl76 and 83of the1982 Convention whichcal1for actual prior negoiiarianserious atiempt ai
agreementbetween the parties on both continental sEEZfclaims.for al1 the reasons given above, that claim is: (a) beyond the juridiction of the
Court; (b) inadmissible in substance; and (c) unjustified in law and fact. PARTV
STATERESPONSIBILITYCAMEROON'S ALLEGATIONSCONCERNING
STATERESPONSIBILITY24.1 . In itsApplicationand AddirionalApplication,Camermn alleged that Nigeria bore
international responsibility forcertain conduct saidto have occurred in the Lake
Chad and Bakassiareas.
24.2 In the Application of 28 March 1994 Cameroon's allegaiion of Nigeria's
intemational responsibility was formulated in paragraph20(e') in the following
tenns:
"(e') that the intemationallyuniawfulacts referred to under (a), (b),
(c), (d) and (e) above involvethe responsibility ofthe Federal
Republicof Nigeria;"
Paragraph(eV)went on, consequentially,to refer to the matterof reparation.
24.3 In Cameroon's Additional Application of 6 June 1994, the paragraph alleging
international responsibilityon the part of Cameroon is paragraph 17{e). That sub-
paragraphwas formulatedas follows:
that the intemationallyuniawfulacts referred tounder (a), (b),
"(e)
(c) and (d) above involve the responsibility of the Federal
Republicof Nigeria;".
Paragraph(e') went on, consequentially,to refer to the matter of reparation,
24.4 Cameroon, in its ApplicationandAdditionalApplication,referred tovariousmatters
which were said to give rise to intemational responsibilityon the part of Nigeria
only in very general and unspecific terms. In its Memrial of 16 March 1995
Cameroon gave more informationabout the various alleged incidents to which it
had referred in its Applicationand Addition01Application,and added information
'
about certain other incidentsboth pre-dating and post-dating29 March 1994 (the datewhenCameroonsubmittedto the CourtitsApplicationcommencingthe present
proceedings).
24.5 In its Observationsof 30April 1996on Nigeria'sPreliminaryObjectiomCameroon
added further informationaboutpreviouslymentionedincidents,againaddedfurther
incidents (both pre-dating and post-dating 29 March 1994). and indicated the
possibilitythat yet more examplesmight be preçenredat some hture date.3w
24.6 During the course of the OralHearingson Nigeria'sPreiim'naryObjections,from
2 to 11 March 1998, Cameroon added yet further information about alleged
incidentsto which Cameroonhadpreviouslyreferred.
24.7 In its PreliminaryObjections,Nigeria contendedthat there was no basis for a
judicial determination that Nigeria bears international responsibility for alleged
frontier incursions,and diat accordinglyal1the issues Statehsponsibility and
reparation raiseby Cameroon in this contextshouldhedeclared inadmissible. In
its Judgmentof 11 June 1998the Court rejectedthis PreliminaryObjection.
24.8 Nigeria considered the meaning and scope of thi sart of the Court's Judgment
unclear and a matter on which Nigeria and Camecoon did not agree. On 28
October 1998Nigeriafiledwith theCourt anApplicationRequestingIntetpretation.
In its Judgment of 25 March 1999 the Coua declared Nigeria's Application
Requesting Interpretationinadmissible.
24.9 In the light of the Court's Judgmentof 25 March 1999Nigeriawill respondin this
Counter-Memorialto Cameroon's allegations that Nigeria bears international
responsibilityfor the incursionsand incidentssaid to haveoccurred, irrespectiveof
the date when those incursions and incidents are said to have occurred and
irrespective of the date when Cameroon firstmadeallegations about hem in the
3m CO., para6.04 course of the present pmceedings. The Court even appears to have permitted
Cameroon to present yet further allegations at unspecified future stages in these
proceedings. Nigeriaclearly cannotat the present stageresptodunknownfuture
allegations,and if Cameroon puts forwardany such allegationsat some future date
Nigeriareservesthe rightto seek thefullestfurther opportunitytorespondpmperly
ro them.
B. Carneroon A'oslicationof29 March 1994
24.10 As already noted (paragraph 24.2) Cameroon'sApplicationassened in paragraph
20(e') that:
"the internationallylawful acts referred to under (a), (b), (cl, (d}
and (e) above involve the responsibility of the Federal Republic of
Nigeria".
That paragraph was, like al1 the sub-paragraphinparagraph 20 of Cameroon's
Application,formulated "On the basis of the foregoingstatementof factsand legal
gmunds". Those facts and legalgrounds were solely concemed with the situation
in the Bakassi area, and paragraph 20(e1)must therefore be understood in that
territorially limited sense.
24.11 As regards the reference backto (a) of paragraph 20 of Cameroon'sApplicarion,
that paragraph makes no reference to any "internationally unlawful acts" by
Nigeria: it merely asks the Court to adjudge and declare thatCameroon has
sovereignty over theBakassiPeninsula.No international responsibilityof Nigeria
arises under the terms of that paragraph.
24.12 Paragraph20@)of Cameroon'sApplicationreferstoNigeria's allegedviolation of
theprinciple of respect for frontiers inherited from colonization (ui possidetis
juris). For the reasons given previously in this Coumer-Memorialand in paragraphs 24.36-24.40 below,there has been noviolation by Nigeria of any such
principle. Furthermore, the root of Cameroon's complaint inthis context is the
application of principles of international law about titie to temtory, and
disagreement about the application of a legal principle is not a basis for
international responsibility.ccordingly,no international responsibilityof Nigeria
arises under the terms of that paragraph.
24.13 Paragraph 20(c) of Cameroon's Application refers to Nigeria's violation of its
international obligations,under treaty and customary international law, by using
force against Carneroon. Given that (see paragraph24.10 above) Cameroon's
Applicationwas limitedto eventsoccurring in the Bakassiarea, anyuse by Nigeria
of force against Cameroon in that area involved no violation of Nigeria's
international obligations,since
(1) the Bakassi area was at al1rnaterialtimes and still is under the sovereignty
of Nigeria, was and still is occupiedand administeredby Nigeria as of right,
and any deployrnentof military forces in tbat area by Nigeriawas a lawful
exerciseof its territorial sovereigntyovethatarea; and
(2) Cameroon having admitted by its Applicaion (and its Mernorial)that its
military forces were presentin the BakassiPeninsula, any Nigerian use of
force againstthose forceswas in exerciseof Nigeria's inherent right of self-
defence.
24.14 Paragraph 20(d) of Cameroon's Application refers to Nigeria having violated its
obligationsunder international law, under treaty and customary internationallaw,
by reason of its military occupationof the Bakassi Peninsula. Since the Bakassi
area was at al1 relevant times and still is under the sovereigntyof Nigeria and
occupied and adrninistered by Nigeria as of right, there was no "rnilitary
occupation"of that area by Nigeria(as thatterm isunderstd in internationallaw),
and the presence of Nigerian civilian and military authorities in that area was a lawful exercise of Nigeria's sovereignty over it. Furthermore, the mot of
Cameroon'scomplaintin this contextis the applicationofpnnciples of international
law about title to territory, and disagreement about the application of a legal
pnnciple is not a basis for international responsibility. Accordingly, no
international responsibilityof Nigeria arises under the tenns of paragraph 20(d) of
Cameroon'sApplication.
24.15 Paragraph 20(e) of Cameroon's Application refers not toany additional acts by
Nigeria, but solely to certain consequencesaid to flowfrom "these breaches of
legal obligation, mentionedabove". This paragraphaccordinglyassertsno further
allegedly unlawful acts for which Nigeria couldbe said to kar international
responsibility.
C Camerwn's AdditionalAnalicotion of 6June 1994
24.16 Cameroon'sAdditionalApplication extendedthe scope of the proceedingsso as to
cover not only the Bakassi area (which had been the subject of the original
Application)but also theLakeChad area and the wholelengthof the land boundary
betweenLake Chad and Bakassi. As already noted (para. 24.3 above), paragraph
17(e)of Cameroon'sAdditionalApplicationasserted that:
"the internationallywrongful actsreferredtounder (a). (b), (c) and (d)
aboveinvolvethe responsibilityof the Federal Republicof Nigeria;".
Thatparagraph was, like al1the sub-paragraphsin paragraph 17 of Cameroon's
AdditionaiApplication, formulated "Onthe bais of the foregoingstaternentof facts
and legal grounds".
24.17 As regards the referenceback to (a) of paragraph 17 of Cameroon's Additional
AppIicarion, that paragraph makesno reference toany "internationallyunIawful acts" by Nigeria: it merely asks the Coutoadjudgeand declacethat the disputed
parcel in the area of Lake Chad belongs to Cameroon. Accordingly, no
international responsibilityon the part of Nigeria arises under the ternis of that
paragraph.
24.18 Paragraph 17(b) of Cameroon'sAddirioml Applicationrefers toNigeria's alleged
violation of the principle of respect for frontiers inherited from colonisation (uri
possidetisjuns). For the reasons givenin paragraphs24.12 aboveand24.36-24.40
below,no international responsibilityon the part of Nigeria arises under the terms
of paragraph 17(b).
24.19 Paragraph 17(c)of Cameroon'sAdditionalApplication &ers to Nigeria's violation
of its international obligations,under treaty and customary international lby,
occupying,withthe supportof its securityforces,parcelsof allegedly Carneroonian
territory in the area of Lake Chad. Anyuseby Nigeriaof force againstCameroon
in that area involvedno violation of Nigeria's international obligations,e the
relevantparts of the Lake Chad area were at al1material thesand still are under
the sovereigntyof Nigeria and occupied and administered by Nigeria as of right,
and any deployment of Nigerian forces in that area was a lawful exercise of
Nigeria's territorialsovereigntyover thatea.
24.20 Paragraph17(d)of Cameroon'sAddirionalApplicationallegesa duty upon Nigeria,
as a consequenceof previouslymentionedlegal obligations,to withdrawits troops
from allegedlyCamerooniantemtory in the area of Lake Chad. In other wordsthis
is a consequentialsubmission, rather than an allegationof original wrongdoing:it
does not allegeany new unlawfulconduct by Nigeria. But in any event, since the
relevantparts of the Lake Chad area were at al1relevanttimesand still are under
the sovereigntyof Nigeria andoccupied and administered by Nigeria as of right,
there is no such duty as is alleged upon Nigeriato withdmits trmpsfrom its own
tenitory, theu presence in that area being in lawful exercise of Nigeria's
sovereignty overit. Furthemore, the root of Cameroon'scornplaint inthis context is the application of principles of international law about title to temtory, and
disagreement about the application of a legal principle is not a basis for
internationalresponsibility.
24.2 1 Itfollowsfrom this summaryofCameroon'sApplicationandAdditional Application
that Cameroon's allegations of international responsibilityon the pan of Nigeria
relate only to the followingmatters:
(1) violationof the principle utipossidetisjuns;
(2) Nigerian use of force againstCameroon in the Bakassiarea; and
(3) Nigeria's military occupation of the Bakassi Peninsula and its occupation
(with the support of security forces) of parcels of territory ithe area of
LakeChad.
ln relation to sub-paragraphs(2) and (3), Cameroon's allegations corcern both
treaty law and customary internationallaw.
i
l
! D. Camemon'sMernorialof 16March 1995
24.22 Cameroon's Memonal expanded upon the Applications in relation to Nigeria's
allegedinternationalresponsibility. In its finalsubmissions,in paragraph 9.1 of its
Memonal, Cameroon asked the Court to adjudgeand declare
"(g) that the responsibility of the'Federal Republic of Nigeria is
engaged by the internationally wrongful matters referred to
above and described in detail in the body of the present
Memorial".Thus Cameroon's contention that Nigeria bears international responsibility for
certain acts is 'mited to those Nigerian acts which meetwo conditions:they must
be "referredto above", i.e. in the preceding sub-paragraphsof paragraph9.1, and
they must be "described indetail in the body of the present Memonal".
Of the six precedingsub-paragraphs,namely(a)to (f),sub-paragraphs(a)to (c) set
out whatCarneroon assertsto be the lineof the landand maritime frontier:theydo
not refer to any acts by Nigeria, and therefore are not directly relevant to
allegationsof international responsibility forallegedlyuniawfulacts.
Sub-paragraph (d) alleges that Nigeria, in disputinrhatfrontier line, tias acted in
violation of the principleofuti possidetisjuns as well as of its legal obligations
towards Cameroon regarding the demarcation of the frontier in Lake Chad and
regarding the delimitation of the land and maritime frontier. The oniy "act"
referred to in that sub-paragraphis that Nigeria disputes the fmntier line referred
to. Even if Nigeria were disputing thefmntier line, doing so is not conduct for
which a Stateis to be held internationallyresponsible. In sofat as there is an
admitted dispute about sovereignty over areas in Lake Chad and Bakassi, this
inevitably hasconsequencesasregards thedrawingof the frontier,but the existence
of a sovereigntydispute itself is not amatter givingriseto State responsibilityon
the part of Nigeria. Asregards the consequencessaid to followfrom the alleged
Nigerian "act"of disputingthe frontier line, therehas ken no violationby Nigeria
of the pnnciple of utipossidetisjuris, for the reasons explainedin paragraph24.12
above, and paragraphs 24.36-24.40 below. There has similarly, for the reasons
explained in Chapter 16, been no violation by Nigeria of any legal obligations
regarding the demarcation of the frontier in Lake Chad. Nor, for the reasons
explained in Chapters 18 and 19 and in Part IV, has the= ken any violationby
Nigeria of any legal obligations regarding theelimitationof the land and maritime
fmntier. In any event, disagreement about the application of legal principles
relating to the course to be taken by frontiers is not a basis for international
responsibility.I
I
i 24.25 Sub-paragraph (e) alleges that Nigeria has used forceagainst Cameroon, and in
panicular has militarilyoccupiedparcels of territory in the area of Lake Chad and
Bakassi, has made repeated incursions, both militaryand civilian, al1 dong the
boundary between the two counmes, and has thereby acted in violation of its
obligationsunder international treatyand customarylaw.
24.26 Sub-paragraph (f) alleges, by implication, that Nigeria still has a civiiian and
military presence in Carneroonterritory in Lake Chad and Bakassi.
24.27 Accordingly,the only actsby Nigeria which, if unlawful,are arguedby Cameroon
togive rise to international responsibilityon the part of Nigeria, are those acts
referred to in sub-paragraphs(e) and (f).As the latter is in effect a continuing
version of (e), in substancethe only acts still to be considereais Pan of the
Counter-Memon arel those referred toin sub-paragraph (e), both as regards
relevant treatylaw and customary internationallaw.
E. Cameroon's Alle~ations of Nigeria's international Res~onsibilitv: General
24.28 Cameroon has alleged that Nigeria bears international responsibility for three
categoriesof matters:
(1) various incidentssaid tohaveoccurred;
(2) non-complianceby Nigeria with its treaty obligations;
(3) non-complianceby Nigeria with the principle of#ipossidej tuisis.
The question of internationalresponsibiliiysaid to arise as a result of the various
incidentssaidbyCameroonto haveoccurredcallsfordetaiiedconsiderationofeach
alleged incident. This detailed consideration will be given in paragraphs 24.63- 24.564 below. Cameroon's allegations as to Nigeria's responsibility for treaty
violations, andfor non-compliancewith the pnnciple of uripossidetis juris,willbe
considered in the immediatelyfollowingparagraphs.
F. Ni~eria's Alleeed Treatv Violations
24.29 In its Applicationand AdditionalApplication,Carneroonhas alleged, specifically,
that:
(1) Nigeria, by using force againstCarneroon, "has violatedand is violating its
obligationsunder internationaltreatylaw ..."(Application,paragraph 20(c));
(2) Nigeria, by militarily occupyingBakassi, "ha violatedand is violating the
obligations incumbentupon itby virtue of treaty law ..."(Applicarion,
paragraph 20(d));
(3) Nigeria, by occupying parcels of territory in the areaof Lake Chad, "has
violated and is violating its obligations under treaty law ..."(Additional
App[ication,paragraph 17(c)).
24.30 In its Memorial Cameroon has alleged specifically that by using force against
Cameroon, and in particular by militarily occupying parcels of Cameroonian
territory in the area of Lake Chad and the Bakassi Peninsula, and by making
repeated incursionsal1alongthe boundarybetweenthe cm countries, "Nigeriahas
violatedand is violatingitsobligationsunder internationaltreaty law.." (paragraph
g.l(e)).
24.31 In itsApplicationsand the mainbody of itMemorial{andin panicular Chapter 6),
Cameroonprincipally cites in this contextthe followinginstmmentç: - Article 2.4 of the United Nations Charter;
- Article 3.3 of the Charter of the Organizationof African Unity;
- the Declaration on the Inadmissibilityof Interventionin the DomesticAffairsof
States and the Protection of Their Sovereignty(General Assembly Resolution
2131 (XX) o,f 2 December 1965);
- the Declarationon PrinciplesofInternationalLawconcerningFriendly Relations
and Co-operation among States (GeneralAssemblyResolution 2625(XXV), of
24 October 1970);and
- the Declaration on the Enhancement of the Effectivenessof the Principle of
Refrainingfrom the Threat or Use of Force in International Relations (General
AssemblyResolution42/22, of 18 November1987).
24.32 TheseinstrumentswerecitedbyCameroonin substancein the contextof allegations
that by its conduct Nigeria had:
- ~sorted to force againstCameroon, contrary to the prohibition against the use
of force acceptedas part of internationallaw;
- infringedCameroon'sterritorial sovereignty(including itçtemtonal sea);
- intervened inCameroon'saffairs, contrary to the principle of non-intervention;
- militarily occupied Cameroonian territory; and
- failed to respect Cameroon'ssovereignty.24.33 While reserving its position as to whether some of the instruments relied on by
Cameroongiverise to internationallegalobligations forNigeria, Nigeriadeniesthat
its conduct has conliicted withthe requirementsof any of those instruments (orany
equivalent rules of customary international law). In panicular, and without
prejudice to other reasons advancedelsewhere in this Chapter:
Manyof the land, lacustrineand maritime areas in which acts are allegedto
(1)
have taken place which Cameroon regards as engaging the international
responsibilityof Nigeria are areas whichhaveat al1materialtimes been (and
still are) under the sovereigntyof Nigeria and occupieand administeredby
Nigeria as of right. The presence of Nigeriancivil and military authorities
in those areas is thus a legitimateexerciseof Nigeria'sswereignty. No acts
or omissions by Nigeria in such areas can wnstimte violations of
internationaltreaty or customarylaw of the kind allegedbyCameroon.
(2) Since allegations of violations of international law represented by the
instruments cited have to be proved by the Applicant, andnot merely
asserted, Cameroon, for the reasons to be explained in greater detail
hereafter, has failed to substantiate by evidence the allegations it has
advanced and has thus failed to satisfy the burden of proof which is
incumbent uponit.
24.34 Even if the Court holds, contrary to the submissions of Nigeria, that title to the
Bakassi and Lake Chad areas (or either of them) vests in Cameroon, it does not
follow automatically that any Nigerian civil or military activity in those areas
involves Nigeria's international responsibility. There isno established rule of
customary internationallawthat international responsibilitys in al1cases absolute.
It is more in accordance with State and international judicial practice for
international responsibility in appropriatecasestobe essentially based on fault.
requiring either intentional or negligent conducton the part of the State if it is to
be held internationallyresponsiblefor that conduct. In respect of State activity in territory which it reasonably considers to be its own temtory, even if later it is
found to have been mistaken in that belief, honest belief and reasonable mistake
serve to preclude international responsibility. Were it otherwise, every case
inwilvinga territorial or boundary dispute would at the same time be tumed into
a State responsibilitycase by virtue of normal Stateactivity over many years, and
evendecades, byone side or the other in the disputedarea.
24.35 Moreover,giventhat those areas in Bakassiand LakeChad are subjectto Nigeria's
sovereignty, it follows that Nigeria is entitled to defend itself by taking
proponionate action against incursions intoits territoryby foreign(Le. Carneroon)
military and civil authorities, and where necessary to take lawfulcountermeasures.
Such essentially defensive actions in protection of long-established and clearly
Nigerian settlements,and in defence of Nigerian territorial rights, are not directed
againstthe territorial integrityor political independenceof Carneroon. It is rather
Nigeria's territorialintegritywhich is under threat from Camerwn's conduct.
G. Nigeria's Alleged Non-com~liance with the Princiale of Uti PossidetisJiiris
24.36 In its Applicationand AdditionalApplication, Cameroon has alieged, specifically,
that:
(1) Nigeria "has violatedand is violatingthe fundamentalprinciple of respect for
frontiers inherited from colonialization (utipossidefisjuris)" (Application,
I
paragraph 20(b) - an allegationwhich, in the contextof the Application, is
lirnitedto the area of the BakassiPeninsula);and
(2) Nigeria "has violatedand is violatingthe fundamentaipnnciple of respect for
frontiers inherited from colonization (utipossideiis juris), ..."(Addirional
Application, paragraph 17(b) - an allegation which, in the context of the
AddifionalApplication,is limited to the area of Lake Chad).For the reasons givenabovein Parts1,II and III (and in particular in Chapter 10).
Nigeria denies that its conduct is in any wayinconsistent with the principle uri
possidetis juris so as thereby to give rise to any internationa1responsibilityon the
part of Nigeria.
Asit is expressedin Articles 1 and 3 of the DraftArticles on State Responsibility,
adopted by the International Law Commission on first rcading, international
responsibility fiows from a State's internationally wmngful conduct. To be
intemationally wrongful, a State's conduct must constitute a breach of an
international obligationof the State.
In the firstplace, it must be observedthat the prkiple ofutipossidetisjuris isjust
that- a "principle", and not a mle of lawcreating for successor States aspecific
legal obligation. Second, and in particular, the principled~s not entaila Iegal
obligation upon a successor State to respect pre-existing international frontiers,
irrespectiveof such doubts and defects as attachfo them. Where there are such
doubts and defects, the pre-existingboundary applies forthe successor State only
subject to those doubts and defects. Were it othenvise, the successor State would
inherit a better title to its frontier lands than its predecessor State had. For the
reasonsgivenabovein Parts1,II and III Nigeria, in maintainingthe positionit does
in relation to areas under its sovereignty,does so consistentlywith, and in no way
in violationof, the principleof utipossidetisjuris.
Moreover, a difference betweenSta$es as to the proper applicationof a principle,
or even a nile, of international law, does not itself give rise to any international
responsibilityfor either of them.H. Nigeria's Alleged Resoonsibilitv arisin~ out of Alleged Incideoh
24.41 Before considering in detail, so far as the facts givenby Camemn allow, the
various alleged incidentsadvancedby Cameroon as a basis for asserting Nigeria's
international responsibility,certain general issuesneed to be addressed.
(i) Adequacy of facts
24.42 Throughout the consideration of questions of Nigeria's alleged international
responsibility for various eventssaid to have occurred, it isimportant to bear in
mind that it is for Camemon, as the Applicant, to establish its case. It is for
Cameroon to establish the necessary facts, and that theygive riseto international
responsibilityon thepart ofNigeria. The Court, initsJudgmenton the Preliminaty
Objections,acknowledged that thequestions whetherthe factsalleged by Cameroon
were establishedor not, and whether the gmunds (semble, of responsibility)relied
upon by Cameroon were foundedor not, were questions which belonpl tothe
meritsand were not prejudgedby the decisionon the Preliminary'Objections. The
Court, after holding that Cameroon's Application contained a sufficientlyprecise
statetnentof the factsand groundson which Cameroon based its claim, continued:
"This observationdoes not, however,prejudge the question whether,
taking account of the information submitted to the Court, the facts
alleged by the Applicant are established or not, and whether the
gmunds it relies uponare foundedor not. Those questionsbelong to
the merits and maynot be prejudged inthis phase of the proceedings"
(Judgment,para. 100).
24.43 In seeking to establish its argument that Nigeria bears internationalresponsibility
for variousalleged incidents,Cameroon must showfour thugs:
(1) first, Cameroon must showclearly whot is allegedtohave happened,i.e. it
must give the full factsof the alleged incident; second, those facts must include a clear statement of when the alleged
(2)
incident issaid to havetaken place;
(3) third, those facts must similarly include a clear statement of where the
alleged incident is said to have taken place (especially in relation to any
relevantboundary); and
(4) fourth, Cameroonmust establishwhyNigeria is thoughtto bearinternational
responsibilityfor the incident.
24.44 It is thus still for consideration:
whether, the facts alleged by Cameroon are, as a matter of evidence,
(1)
adequatelyestablished;and
(2) whether, in so far as they are established, they are sufftcientto satisfy the
burden of proof resting upon Cameroon as the Applicant to make good the
allegationswhich it puts fonvard; and
(3) whether, in so far as the factsare tme and suficient, they give nse toany
intemationalresponsibilityon the part of Nigeria.
(i)Burdenandstandardof proof
24.45 Cameroon is the Applicant inthese proceedings. It is Carnermn whichallegesthat
Nigeria bears international responsibility forcertain acts which are said to have
occurred. The position adoptedby the Court has been recentlyexpressedthus:
"Generally,in applicationof the principleactoriincumbit piwbatio the
Court will formally require the party putting forwarda claim to establish the elementsof fact and law on which the decision in its
favourmight be given. "391
As the Court said in Military and Pammilitary ActiMties in and against
Nicaragua: 392
"Ultimately ...it is the litigant seekingto establish a fact whobears
the burden of proving it; and in cases where evidence may not be
forthcoming, a submission may in the judgment be rejected as
unproved ..."(at p. 437).
The Court cited that passage with approval in its ludgment in the Preliminary
Objectionsphase of the presentcase, havingpreviouslysaid:
"It is the applicantwhich mustbear the consequencesof an application
that gives an inadequate renderingof the factsand grounds on which
the clairn is based." (at paragraph 101)
The principle is clear.As Nigeria will show, much of the widence advancedby
Cameroon in support of its allegations is inadequate, in that it is confused,
contradictory,unclear and unauthoritative.
24.46 Particularmentionshouldbe made of the relianceby Cameroonon evidencetaking
the form of press reports or reports of radio broadcasts. The Court has
acknowledgedthat in certain circumstancessuch reports are relevantevidence, but
ithas at the same tirne emphasisedthe need for particular cautionin this area.
In the case ConcemingUnited StatesDiplornatic and ConsuIarSta$ in
(1)
Teher~n,~~ there had been extensive coverageof the events leading to the
institution of the p~ceedings, and this material was availableto the Court.
391 Roxme. ne Law Md Prucricof rhIntemtional Coun.192G199-5(1991).ml. IIp.1083
j" IU Repom 1984
jW 113ücp11r61980 In concluding thatit was satisfied that the allegationsof fact on which the
United Statesbased its claims were well founded, the Court noted that:
"The information available ... is wholly consistent and
concordant as to the main factsand circumstancesof the case"
(at p. 9).
The volumeof availablemedia evidenceand the world-widenotorietyof
the circumstances to which it related, together wifh its consistency,
justified relianceupon it.
(2) The need for caution was particularly apparentin Military and Pamrnilitary
Acrivitiesin and againstNicamgu~.~~There the Court observedthat:
"in the present case the Court has before it docurnentary
material of various kinds from various sources. A large
number of documents have been supplied in the form of
reports in pressarticles, and some also ithe formof extracts
from books ... .[Tlhe Court has been careful to treat hem
with great caution;evenif theyseem to meet highstandardsof
objectivity,the Court regardsthem not as widence capable of
proving facts, but as material which can nevertheless
contribute, in some circumstances, to corroborating the
existence of a fact, Le. as ilIustrativematerial additional to
other sources of evidence ....
The Court has howeverto showparticular cautionin this area.
Widespreadreports of a fact mayproveon closer examination
to derive from a single source, and such reports, hwer
numerous, will in such case have nogreater valueas evidence
than the original source." (atp. 40)
Those remarkscany particular weight in the context of press reports which
do not indicatetheir sources, as is the case with many of the reports relied
onby Cameroon. 24.47 A separatequestion concerns the standardof proof which Camemon must meet in
dischargingthe general burdenof proof which liesupon it. The allegationthat a
State is intemationally responsible for violationsof its internationalobligations is
a serious matter, particularly where, as here, the aliegation involves the use of
I
force. The State making such an allegationmust establish its case not merely on
the balance of probabilities, but beyondreasonable doubt. In theCo@ Channel
Case,395the Court was concerned wifh allegationsabout the laying of a minefield
in Albanianwaters, andthe allegation that it had been laidby a particular State.
In concluding thatthe evidencetosupportthat allegationwasinsufficient,the Court
said:
"A charge of such exceptional gravityagainst aStatewould require a
high degree of certainty that has not been reachedhem". {atp. 17)
(iii)Reasonablemistakeandhonestbelief
24.48 There is a distinctionbetween incursionsknowingly madeacross a frontier into a
neighbouring State,and incursionsmade as the result of a genuineand reasonable
mistakeas to where the frontier runs. Similarly,there is a distincttonbe dmwn
between frontier incidents involvingState transgressionsacross a known frontier,
and State activities (civilor military) in territory which the State reasonably
considers to be its ownterritory, even if later it is byuthe Court to havebeen
mistakenin that belief. Aswas implicitlynotedby Nigeriaduring the oral hearings
on the Preliminary Objections,3%and as explained abme at paragraph 24.34,
honest belief and reasonable mistake can serve to pmlude international
responsibility. These considerations are very relevantto Nigerian military and
civilian activitiesin Bakassiand LakeChad.
1CJRepm 1949
'% CR 9815.pp.50-51 (iv) Self-defence
24.49 A significantnumber of the allegationsmade by CamerooninvoIveactionallegedly
taken by Nigeria in territory over which Nigeria asserts sovereignty, and in
particular action by Nigerian forces in response to incursions into such Nigerian
territory by Cameroonian forces. In such circumstances, the action taken by
Nigerian forces, far from constituting conduct giving rise to international
responsibilityon the part of Nigeria, is conduct which isjustifiedas an exerciseof
the inherentright of self-defence possessby Nigena alongwith evety other State.
(v) ïbpographical difflculties
24.50 It is highly relevantto many of the alleged "incidents",especially those said to
have occurred along the long land boundary between Lake Chai and Bakassi, that
in many areas the land boundary is undemarcated on the gmund, is not even
precisely delimited in the relevantinstrumentsand mns throughdifficultterrain.
Certain inadequaciesin the delimitation ofthe land boundary have been indicated
in Chapters 18 and 19: such uncertaintieshave a pan toplay in understanding the
realities of some of the so-called boundary incidents.
(vi) Context of incidents
24.51
Cameroon mentioned allegedboundary incidents in two quite different contexts,
without clearlydifferentiatingbetween them: first, incidents said to demonstrate
that the frontier was in dispute, and second, those toigive rise to international
responsibility. There is some overlap betweenthese hm categories, and some
incidents may well be relevant in both contexts. Asregards incidents tending to
demonstratethat the frontier wasin dispute, Nigenahas ieffectacknowledgedthat
even recent incidents mightin principle be relevant toshowingwhether a frontier is, and continues to be, in dispute. Nigeria,however,has denied that, in practice,
the incidents cited by Cameroon showedthat the frontier was disputeci,and the
Court broadly accepted Nigeria's contention that not everyboundary incident
implies a challengeto the bo~ndary.'~ In so far as incidentsmay be invoked in
the context of Nigeria's international responsibility(whether in addition to their
invocation in the context of the alleged boundary dispute, or as self-standing
"responsibility" incidents) thematter must, however, be viewed differently.
Internationalresponsibilityfor discreteincidents hasto be establishedseparatelyfor
each incident.
(vii U)odue delay: extinctiveprescription
24.52 A number of the incidents allegedby Cameroon to havewcurred uiokplace (so it
is said) many years ago. International law accepts that claims may be barred
because of the lapse of the in putting themforward. It is a matter boof equity
and of practicality.It is neither equitable that States should be facd wirh the
possibility of injustice as a result of being presentedwithtale" nor
isit practicable to expect respondentStatesto be able to obtain their own reliable
evidence about incidents which are said to have occurred many years ago -
particularly where, as with many of the incidents allegby Cameroon, they are
relatively trivial and localised and where there was no protest at the the.In
internationallaw the pnnciple of extinctiveprescriptiisapplied flexibly. There
is no specific the limit after which a claim is barred, and the penod in any
particular case depends upon the circumstances of that case. Delay in the first
notificationof a claim to the respondeStateis particularlylikely to prejudice the
success of the claim.
397 Sudgrneni nthePreliminaryObjections,para.90
'" "Thepriocipleof prescriptionfindsifs fothc hi~heequit-theawidanceof possibleinjustiçc
m the&fendant":alsion,Umpire.in theGentinicase (UNRIAA. x.pp.552-524.53 In the Case ConcemingCertainPhosphateLandsin Nauru (Nauruv. Ausrralia),
399the Court:
"recognk[d] that, even in the absence of any particular treaty
provision, delay on the part of a claimant State may render an
applicationinadmissible. It notes, however,that internationallawdoes
not lay down any specifictirne-limitin that regard. It is thereforefor
the Court to determine in the lightof the circumstancesof each case
whether the passageof time renders an application inadmissible." (at
pp. 253-254)
The Court went on to find, on the facts of the case, that although there had been
certain delays, they were in the circumstances not such as torender Nauni's
Applicationinadmissibleby passageof tirne. The Court added, however,that:
"Nevertheless, it will be for the Court, in due time, to ensure that
Nauru's delay in seisingit will inno waycause prejudice 10Australia
with regardto both theestablishmentof the factsand thedetermination
of the content of the applicable" (at p. 255).
24.54 Nigeria will draw attention to the occurrence of unreasonable delay in the
presentationor prosecutionof claims in relationto each allegedincidentwhich, in
Nigeria's submission,is nowbarred by lapse of time.
(vïi) Attribution
24.55 It is essential, if a State is to be held responsible for some incident, that it be
established thatthe conduct from whichresponsibiliryis said Row is attributable
to that Stateunder internationallaw. In particular,
(1) the mere fact thatan act has been commited by a person who is a member
of a State'scivil serviceor of itsarmed forcesdoes not necessarilymakethe State responsiblefor those acts: for that, it is necessaryeither that those acts
be official and authorised acts of such persons, or that they be at least
attributableto the Stateby virtue, for example,of havingbeen performed in
the ostensible performanceof their officialfunctions;
(2) the general rule is that "The conductof a person or a group of persons not
acting on behalf of the State shall notbe considered as an act of the State
under internationallaw" ;"
(3) it is a questionof fact in the lightof the particularcircumstancesof each case
whether the persons concemedwere sufficientlyclosely associated with the
State for their actto be regardedas acts of the Stateratherthan as the acts
of private persons which cannot be attributed to the State and for which it
bears no responsibility.
24.56 The Court has already acknowledgedthat:
"not every incursion or incident alleged by Carnecoonis necessarily
attributable to persons for whose behaviourNigeria's responsibility
might be engaged" (Judgment on thePreliminary Objections, para.
90).
24.57 The relevant principles have been considered by the Court in Miiitary and
PammilitatyActivitiesin and againstNi~aragua,~~ and in the Case Conceming
UnitedStates Diplornaticand ConsularStaf in Teheran." In the former case
the Court, in denying that the acts of the so-called 'contra' forces in Nicaragua
couldbe attributed to theUnited Statesso as to make the UnitedStates responsible
for such of those acts as were contrary to internationalaw, said:
aw Draft ArticlonStaa Responsibility(adoptedon firstreaS.the Internationlaw Commission).
Articl11.1
40'
ICIRepom 1986. p.3.
[ClReporw 1980,p. 3. "For this conduct to give rise to legal responsibility of the United
States, it would in principle haveto be provedthat State hadeffective
control of the military or paramilitary operations in the course of
which the alleged violationswere committed"(at p. 65).
In the latter case the Court, in consideringthe responsibilitIran for the actsof
rioters and other militants, said that for their acts to be regarded as acts of the
State, it had to be:
"established that, in fact, on the occasion in question the militants
acted on behalf of the State,havingbeen chargedby some competent
organof the Iranian Stateto cany out a specificoperation" (at p. 29).
24.58 It is apparent from the factsof a considerable number of the alleged incidents
advancedbyCameroonas a basis for Nigeria'sinternational responsibility,that they
involveconduct by persons forwhose behaviourNigeria is in no wayresponsible.
Nigeria will draw attention to these issues of non-attribution in relation ta each
alleged incidentfor which, in Nigeria'submission,Nigeriabears no responsibility
by reason of the non-attributabilityof the conducinquestion to Nigeria.
(jx) Inconsistency of Cameroon'sallegations
24.59 It is a notable feature of Cameroon's allegations of Nigeria's international
responsibility for various incidents that Camemon's own treatment of them is
inconsistent. It is inconsistent inthree main respects.
(1) Fit, nowhere has Cameroon set out a comprehensivelist of the incidents
which it regards as giving rise to internationalresponsibilityon the part of
Nigeria. Some lists of alleged incidentshavebeen provided, for exampleat
Annexes MC 362 and 363. These lis& are not in terms stated to be
cornprehensivebut, for example, Annex 1 toMC 362 would appear to be
intended to be a summary of al1 the incidents caused by Nigeria over the boundary (referring as it does to "the boundary incidents"). Yetthere are
alleged incidents which are not included in those lists but which are
mentioned elsewhere inCameroon's pleadings, so as to make it unclear
whether Cameroon is still pursuing those non-listed incidents, or whether
Cameroon, by not listingthem, has recognisedthat theyare insubstaniial,or
are insufficientlyreliable topume, or have already been settled, or arefor
some other reason not a proper matter for international responsibilityon the
part of Nigeria.
Second, some incidentsare referredto in differentterms in different places,
(2)
associatedwith differentdetails, so as tomake it unclear precisely what the
gravamenof the allegation againstNigeria really is.
(3) Third, and in particular, Cameroon's identificationof places has been
inadequateor inconsistent. In some instancesno location for an incident has
been given. In others a place name is identified,but its precise location is
unclear (and often unknown, at least by the name used by Cameroon) to
Nigeria. In yet others, a name and location are given but seem, on closer
inspection,to misplace the intendedsite of an aileged incident.
1. Alleeed Incidents
24.60 Against thebackgroundof those general observations,it is necessary (so far as the
alleged incidents are identifiable from the limited details giveby Cameroon) to
deal with each of the specific incidents allegedby Cameroon to give rise to
international responsibilityon the part of Nigeria. These incidents are, in effect,
those allegedby Cameroon to haveoccurred
(1) in the Bakaçsiarea,(2) in the Lake Chad area,
(3) along the landboundary betweenLake Chad and Bakassi.
In this Chapter, Nigeria will deal comprehensively with the incidents in 82
successive sections, in an attempt to make up for Camemn's inconsistently
itemisedidentificationof alleged incidents. Referencewbemade to Cameroonian
maps, where it is convenient to do so and they are adequate for the purpose in
hand. This is without prejudiceto Nigeria'sposition as&Othe accuracy of those
maps.
It will be convenient for Nigeria to deal first with the incidenlç said to have
occurred in the Bakassi andLake Chad areas, sincealleged incidentsin those areas
share the characteristic that Cameroon'sallegationsoStateresponsibiliîy on the
part of Nigeria for conduct çaito have occurred in the Bakassi and LakeChad
areas are based on the assumption of Cameroon sovereigntyover those areas.
Nigeria rejects that assumption, and thedore also rejectsal1 those parts of
Cameroon'scase which rely on it, includingthosepars based on vanous incidents
alleged to have occurred in the Bakassi andLake Chadareas. For the reasons
given in Partsand IIof this Counter-Memonals ,overeigntyover the relevantparts
of those areas vested at al1 material tirnes (and srill vesin)Nigeria, which
occupiesand administers themas of right, and anymanifestationof Nigenan State
authonty in those areas was (and continuesto be) a lawful exerciseof Nigeria's
territorial sovereignty overthem. Nigeria will nevertheless,and without prejudice
to its position as to its sovereignty over theeas in question, respond to each
incidentwhich Cameroonallegesoccurred in order to explainthemandor to show
that the details giveby Cameroon are insufficientto establish any international
responsibilityon the part of Nigeria.J.
Alleeed Incidents in the Bakassi area referred to in Cameroon's ADolicdons and
M~T~IoM~
24.63 Cameroon's allegations of internationallywrongful conduct by Nigeria in the
Bakassi area were made in Cameroon's Applicationof 28 March 1994. The
referencesin thatApplicationtoallegedborder incidentswerecollectedtogetherin
PartAofNP0 84: thatAnnexis for convenience attachedtothisCourtter-Memorial
as NC-M342. Withonlyoneexception,al1thosereferences are whollyvagueand
unspecificas to date,circumstancesor location (otherthan an express or implied
connection withthe Bakassiarea). Theoneexceptionisthe referenceinparagraph
9 of the Applicationto an incident said to have occurredon 21 December 1993
imlving an allegedNigerian invasionof the so-calledCameroon settlementsof
"Jabane" (Abana) and "Diamond" . Apart from that one specificallyidentified
allegedincident, there arein Cameroon'sApplicationonly generalisedreferences
in paragraph9 to "frontierincidents[continuing]to occurin thedisputedarea", and
to use of force andrnilitary occupation in paragraphs20(c) and (d) - al1these
referencesof course being limitedby the contextof the Appiicarionto wenrs said
to haveoccurredin the Bakassiarea.
24.64 In its subsequent pleadings, Carneroopnurportedtogivemore detailsabout these
alleged incidents inthe Bakassiarea. Thoseadditionaldetailsarestillverylimited.
Apart from suchadditional information as Cameroonprovided,Carneroon also,in
itsMemonal, included (forexample,in introducing anew section) severalvague
andlor general referencesto incidentshavingoccurred, but sincethese references
contain nothing specificin the way of detail they have been ignored for present
purposes. 1. Incident of16May 1981
24.65
The first incident is said to have occurre16oMay 1981. It is referred to in
paragraphs6.13 - 6.27of Cameroon'sMernorial. Cameroonclaims thata military
patrol of the Nigerian army violated Cameroon temtoryby penetrating into the
BakassiPeninsula as far asthe Rio del Rey, where it opened fire on a craft of the
Cameroon Navy. Cameroon alleges (paragraph 6.21) that thedeaths of five
Nigerian soldiersprovidedthe Nigerian authoritieswith apretextfor exploitingthe
incidentpolitically and for trying to put the blame on to Cameroon.
24.66 This distorts the true facts of this incident. It occurred on the Akpa Yafe,which
is in Cross River State,Nigeria (see Map 5 iAtlas).It tookplace on16 May
1981. As Cameroonacknowledges,it wasNigenm national$whowerekilled. On
23 May 1981, PresidentAhidjo of Cameroonwroteto President Shagariof Nigeria
(NC-M 343). President Shagari respondedby lerter dat25 May 1981 (NC-M
344) demanding:
(1) an unqualifiedapology;
(2) the bringing to justice of the perpetratorsof the murders; and
(3) full reparationto the familiesof the dead Nigerian soldiers.
On 24 May 1981,Cameroon sentto Nigeriaa Delegalionled by a Minister in the
Cameroon Foreign Ministry, to offer the regrets of President Ahidjo for the
incident.Shortly thereafter, President Shagari summoneda meeting of Nigeria's
National Security Council to consider the response madby Cameroon. The
NigerianGovenunentwasnot satisfied with PresidentAhidjo'sresponse. President
Shagarisentan appropriatereply to PresidentAhidjo. Eventually,President Ahidjo
made a full apologyto President Shagariand offeredcompensatitnthe families
of the victims. Copies of President Ahidjo's letie16oJuly 1981.to President Shagari, and of the latter's response 20 July 1981, are at NC-M 345 and 346.
Compensation for the loss suffered by the families of the murdered Nigerian
soldierswas paid by Cameroon: at NC-M 63 is a copy of the cheque.
24.67 It is abundantly clear that these circumstances give rise to no international
responsibilitywhatsoeveron the part ofNigeria. International responsibilityther
incident rested whollywith Cameroon, as Cameroonacknwledged and for which
Cameroonpaid compensation.
2. Incidentof 21 December1993(Abanaand "DiamondIsland")
24.68 In itsApplication,Cameroon stated (at paragmph 9)that:
"on 21 December 1993, Nigeria committed an aggression agaimt
Cameroon by invading the Carneroonian localities of Jabane and
Diamond Island inthe BakassiPeninsula".
TheApplicationgoeson to referto "violentincidents whichensued", and to Nigeria
"introducing armed troops on a massive scale to the disputed peninsula and
conductingrnilitaryactivities ther."
24.69 Despitethe apparent specificityof this allegedincident:
(1) In theMemorial,Cameroonhas not providedanyinformationconcemingthe
location of "DiamondIsland"; it is not indicatedon the maps appearing on
pages 487 and 566 of Cameroon's Memorial, which Nigeria has used to
identifyother placenames referredto by Camer~on.~
On a map extractappearingat pa377of Amiex O.C.1 ofCamemon's ObservarinmonNigeria's
PreIiminaiOb~eciionCamemonhas merelysuperimposcdthword"Diamond-inhe yçaORrheCoast
nearWestAnbong("ldahatoIIonthemap);thereis in nocislandatthlocarion. (2) There is no further mention of any such incident of 21 December 1993 in
Cameroon's Memonai. Various other incidents said to have occurred at
"Jabane" (Abana) or "Diamond Island" are referred to in Cameroon's
Memonal (see below), but they involveeither different dates or different
circumstances, or both. It is thus noteworthy rhat the only incident
specifically "identified" in Cameroon'sApplicarion was not thought, on
reflection, to have been sufficientlyreliable tohave been worth pursuing in
the Mernonal.
24.70 Quite apart from the general considerations referred to above, particularly in
paragraphs 24.48 and 24.62, the original brief aliegation, unsubstantiatedby any
further details or evidence, is clearly insufficient asa basis for attributing
internationalesponsibilityIONigeria.
3. Infiltrations on and after21 December 1993
24.71 Paragraph6.30 of Cameroon's Mernorial refers to:
"Nigerian military preparations ... that include infiltrations into
Cameroonian territory as of 21 December 1993".
24.72
In apparent support of this assertion,meroon cites MC 362. This contains an
undated intemal Camerooniannote, addressedto the Chiefof General Staffof the
Cameroonian Armed Forcesfrom the Chief of General Staff of the Army. The
front sheet of this Annex gives its date as 25 May 1994, but that is merely a date
referred to in the heading of the note. The note encloses annexes which include
Annex1, and the date appearingon Annex 1(at page 2912) çuggeststhat the note
is dated on or after 31 May 1994. Thus neither the note nor its Annex is
contemporaneous withthe eventsto which it *fers. 24.73 The note states that its Amex 1 summarises "the boundary incidents" caused by
Nigeria: it is thus at bestonly second-hand. indirectevidenceof the eventsreferred
to. It does appear to referto incidentsin Bakassiin December 1993,but no precise
dates are given in the text as distributed. One line of the schedule in Annex1
indicates that in December1993, Nigerian troops "tookpossession" of the Abana
and "Diamond" fisheries,expellingthe civilian population, and shortly afterwards
there occurred, so it is said, the "occupationof AKWA,MBEN MONG and the
creek of OBIOBA",a where Cameroon patrols were fired upon. Another line
of the schedule indicates that,during the same month, the Nigerian authorities
"decidedtosendtheir forcesto al1partsof Bakassion the pretextof protectingtheir
allegedlythreatenednationalsu.
24.74 This Amex, again despite its apparent specificity,is in fact alrnost wholly lacking
!
in relevant information. No source is given for the assertions containeciin the
Am, which is neither contemporaneous with, nor direct evidence of, the
allegationsmade.
(1 The alleged "takingpossession"of the Abana and "Diamond" fisheriesand
expulsion of the civilian population is put at some unspecified time in
December -althoughone would have expected it to have been a suff~ciently
significant event (if it occurred) for its date to have been known and
specified. Further, the fact that Cameroon did not apparently have that
informationsuggeststhat therewas no Cameroonpresence in the area.
(2) The same may be said of the allegedoccupationof Akwa, Mben Mong and
Obioba Creek where Cameroon patrolswere allegedly fired upon. That
alleged eventis merely said to have occurred "shortly after" the undated
"taking possession" of the Abana and "Diamond" fisheries, and may
For convenience,Engltranslatisre usein thChaptefor thrsand other qunmtionsfrom Frcnch
originaldocumenrî. therefore have been in December 1993 or January (or perhaps even
February) 1994.
(3) As stated in paragraph 24.69(1) above Carneroon has not indicated the
precise location of "Diamond".
Finally, the allegedsendingby Nigeria of its forceto "al1parts of Bakassi"
(4)
("toutes [sic] la zone de Bakassi") is unspecific, as todate,location and
circumstances,and is intenns an assertionas to an internai decisionsaid to
havebeen taken by Nigeria, as distinct from actualconduct. This is in line
with the assertion in paragraph6.28 of Cameroon'sMemorialthat in early
1994 Nigerian amed forcesembarked on a carefuily prepared planto take
possessionof the Bakassi Peninsula. There is no evidenceofferedas to these
alleged interna1decisions and plans being made within Nigeria, nor could
there be, as those allegedeventsdid not occur.
24.75 None of these incidentshas been adequatelyidentified,or established by sufficient
evidence, whetherdirect or circumstantial. For thesereasons, and quite apart from
the general considerationsreferred to above, particularly in paragraphs 24.48 and
24.62, Nigeria denies that they give rise to any international responsibilityon its
Part.
4. Incidentof 28 December 1993
24.76 Paragraph6.30 of Cameroon'sMemorialclaims &nt:
"During the day of 28 December 1993, three Nigerian warships were
apparently on constantpatrol near thevillageof Jabane (IdabatoSub-
Division), in the Bakassieni insu l Ta:ose ships carrid upwardsof
a thousand unifonned men. An observation patrol was set up on DiarnondIsland, while an engineer unitmade prepawtionsto landthe
bulk of the troops in the port of Jabane."
24.77 Although onits face this allegationseems specific, Nigeria notesthat:
Cameroon felt able only to Saythat the Nigerian vessels were "apparently"
(1)
on patrol;
(2) while thenavalpatrol was specifically datedas king on 28 December 1993,
no date is given in the Memorialfor the despatchof the observationpatrol
or for the activitiesof the engineering unit;
(3) as statedin paragraph24.69(1) aboveCameroonhasnot indicatedthe precise
locationof "Diarnond";
24.78 As evidencesupportingthese allegations,Camerooncitesthe dwument at MC 329.
This appears to be a note of some kind, intemal to the Cameroon administration;
it is dated 31 January 1994; it gives no indication of its provenance: i.e. it is
anonymous. It refers in its heading to a note dated 5 January 1994, and suggests
thatthat note was a report from the "Special Commissionerat MundembanPM in
which he "reports on the situation in his sector during the first fortnight of the
month of January 1994". Despite the fact that it is specifically cited in the
Memorialas the basis of the allegations, Carneroonhas failed to includethis report
in Amex MC 329. The note amexed by Cameroon records that the "mainpoint"
of the report referred to was the presence on 28 December 193 of patrolling
warshipsand states that "they have startedan observationpatrol at Daimon [sic]".
As regards the engineering unit, it simply reports that thunit "at Jabane" was
being employed tobuild barracks out of permanent materials.
Mundembais siniatedsomç distancefrom thc BakassiPeninsula.appro35rkilnmcwinonhwest
ofArchibong(seeFig. 24.1)24.79 This interna1note is dated at the end of January 1994, over a month after the
allegedDecember 1993incident.,It merelyreportsthe contentsof anothernote, but
without indicatingthe original source of the information containedin it. Although
!
Cameroon has not supplied the text, it would seem unlikely that the earlier note,
cited as evidence of events said to have taken placin December 1993, says
anythingabout those events:it relates onlyto the situationduringthe firstfortnight
of January 1994.
24.80 It has also to be observed that it would appear from MC 329t in the first two
weeksof January 1994,the onlymattersworthyofmention inan area whichclearly
included the Bakassi Peninsula were the patrols and the landing afNigerian
engineeringunit. This Camerooniandocument thusthrow sriousdoubt upon the
other allegations by Cameroon as to incidents said to have occurred in that two
week period.
24.81 These alleged.incidentshave not been adequatelyidentifid, nor have they been -I
established by sufficientevidence. For these reasons,and quite apart from the
I
general considerations referred to above, particularly in paragraphs24.48 and I
24.62, Nigeria denies that they give rise to any inkmational responsibilityon its
l
part.
5. Incidents on3, 4 and5 January1994
24.82 Cameroon'sMemorialasserts, at paragraphs6.31 to 6.33, that:
"the Nigerians landed at Jabaneon 3 January 1994and that, asrly
as 4 Januaryat 11 am, theyoccupied~iamond Islandandhoistedtheir
flag there. Having done likewise at Jabane, they set off to Idabato
afier deploying heavy weapons on the invadedtemtory ...Constant
reinforcementswere then to arrive in support of the Nigerian troops
already on sit...On 5 January 1994, the Nigerian forcesdeployed i
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occupyingthe Cameroonianislands of the region."
24.83' As evidence for this alleged series of events, the Cameroon Mentonal refers to
MC 331. 332 and 334.
(1) MC 331 contains an intemal Cameroonian document,namely the transcript
of a telegraphicmessage dated7 January 1994, from the "Chief ofFmntier
Post Idabato". The notedoes not Sayto whomit wasaddressed. It indicates
that on 4 January 1994, the "Nigerian Navy" moved from Abana to
"DiamondIV,where they hoisted a flag. This is followed by the unspecific
phrase "Thenup to Idabato", and a referenceto the plantingof cannonsand
other arms "150M from Headquarters" . This report:
says nothing about any Nigerians having landed at Abana on 3 January
1994;
- nor does it Sayanythingabout any occupationof "Diamond"(the precise
location of which, in any event, has not beenindicateby Cameroon);
- nor does it Sayanything about the Nigerians having "done likewise at
Jabane" (which in terms of the Mernorialappears to be a referenceto
Nigeria having occupied ~bana andlor having raised the Nigenan flag
there);
- nor does it Saywhen thearmamentsreferredto wereplaced.
Moreover, the sources for the information contained in this note are not
given.(2) MC 332 is referred to in the context of the assertion that Nigerian
reinforcementsconstantly anived. This Annex is a telegraphic message,
apparentlydated 7 January 1994. The author and addresseeof the message
are bothidentifiedin a cryptic manner; and evenCamermn doesnot saywho
they are on the front sheet of the Annex; i.e. it is anonymous. Moreover,
it does not indicatethe original sourcesof the information containedin it.
As regards its content:
- it purports to set out a list of incidentsoccurring "betweenCameroonians
and Nigerians" from1990 to1993, and thus on its facehas nothing todo
with the alleged arrival of reinforcementsin Janu1994;
- and in fact noreferencewhatever is made in the note to any arrival of
Nigerian troopsat any tirne in 1994.
(3) MC 334 is cited (in the original Frenctextof the Mernorian as :vidence
that 500 Nigerian soldiers were at the time occupying the Cameroonian
islands of the region. MC 334 is said to ba report dated 6 January 1994
by Radio France Internationale. MC 334, however,is dated 7 January, not
6 January; and is an AFP report, not a repon from Radio France
Internationale. The report aMC 334 statesthatthe informationcontained
in it comes from other sources, without identifying them. Moreover, it
refers to Nigerian troops occupyingtwo islands, and makes no reference at
al1to a deployment "as far as Akwa". Nigeria notes,however,that thereis
a report dated 6 January 1994, by Radio France Internationale: it is at
MC 330. The front sheet of the Annex, however,suggests that it comes
from a summaryof BBCworldbroadcasts. Therepon says that500 soldiers
have been occupying "Diamond Island and Djabane [sicI] sland" since
3 January. No mentionis made of any incidentsin Akwa or any other place
besides those two. Furthermore, althoughCarneman refers to the report in
the Memoriol as if Radio France Internationale had been supplying an independent account of an incident, the report is in fact based on an
announcement madeby the Deputy ForeignMinister of Carneroon.
24.84 It is also worthnotingthat, with one exception,the scheduleof incidentsappearing
in Annex MC 362 (referredto in paragraph24.59 above}does not mentionany of
these incidents whichare now said to havetakenplace in January 1994.
24.85 Cameroonhas failedto identifythese allegedincidentsadequately,or establishhem
by sufficientevidence, whether direct or circumstantial. Accordingly,and quite
apan from the general considerations referred to above, particularIy in
paragraphs 24.48 and 24.62, Nigeria denies that they give rise to any international
responsibilityon itspart.
6. Incidentsof February 1994
24.86 Paragrdph6.34 of Cameroon'sMetnorialstatesthat :
"In the night of 18 to 19 February 1994, the Nigerian army launched
all-out hostilities againstthe Camerooniantroops stationed at Idabato
and Kombo Janea ...those amphibious attackswere repulsed with
significantlosses on the Nigerian side and at least one dead and one
woundedamong the Cameroonians. The followingweek was marIced
by Nigerian aerial reconnaissanceflightsoverthe zone."
24.87 Nigeria acknowledgesthat certain incidents took place in Febmary 1994 in the
BakassiPeninsula. The facts, however,are not those suggestedby Cameroon. As
Nigeria has alreadypointed out in a Note tothe United Nations Security Council
dated 4 March 1994 (NC-M 347) it was Cameroonwhich launchedattacks on
Nigeriaon 14, 18and 19February 1994,and notthe other wayround. Cameroon
instigatedthese attacksdespite the fact thata peaceful dialogwas proceeding in
relationto certainconcernsexpressed by Cameroon. Duringthese attacksNigerian troops were obligedto defendthemselves. However,in line with Nigeria's policy
of restraint, the soldierswere ordered to cefireas smn as the anack upon them
had ceased. That it was Cameroon which was the aggressor during the course of
these incidentswas reflectedfor examplein the AFP report dated 3 March 1994,
which was annexed to Cameroon's Observafions on Nigeria's Preliminary
Objections(AnnexOC 12).
24.88 On that basisalone, Nigeria denies that it bears any internationalresponsibilityfor
what occurred in mid-February 1994. But Cameroon,despitebeing the initiator of
the attacks, has chosen to make specific allegations against Nigeria aboutcertain
selected aspectsof the events. Those allegationsare not borne out by the evidence
adduced by Cameroon. As evidence supporting its allegations, Cameroon's
Mernorial refers to Annex MC339. This annex appears to contain four separate
telegraphic messages.
(1) The fistisa note dated 19 February 1994from the "Chiefof Frontier Post
National Secunty Idabato", which Statesthat on 18Febniary at about3p.m.
Nigerian Navy officers in flying boats attacked Cameroonian soldiers at
"Kombo Janea" (apparently a reference to the Nigerian settlementof Ine
Utan Asuquo). This document, referring to events said to have occurred
during the aftemoon, is not evidenceof an incident said to have occurred
during the nightof 18/19 February.
(2) The note added that theCameroonians successfully resisted the attack, in
which one of them died, as did two Nigerians. Additionally,about eight
Nigerianboats weresunk, eachhavingcontained appmximatelyten men. No
original source for this informationis given.
(3) The second note, from thesame author and dated 25 Febmary 1994, refers
to an "unidentifiedNigerian plane"akingeight reconnaissanceflights over
"headquarters" al1on the same day,25 February 1994. The note does not specify where "headquarters" is, nor does it give the source of its
information. As the plane was "unidentified"(even after eight flights) it is
not apparent on what basis it is assumed to have been Nigerian, or why
responsibility forthese allegedflights should beattributed to Nigeria.
The third note, dated 20 Febmary 1994, indicates that it is from the Chief
(4)
of Frontier Police Post at iden na^".^ Referring to its source by the
simple term "Information", the note states that on the night of 17/18
Febmary 1994, there wasan attackon Cameroonforcesat the "disputedarea
at Idabato" by "Nigeria force [sic] n, which some Nigerians (but no
Cameroonians) were killed. This report says nothing about, and is not
evidence supporting, any incident which occurred on the night of 18/19
kbmary 1994.
(5) The fourth note is dated 22 Febmary 1994, but itsauthor is not clearly
identified. It refers to the "confrontations"which occu~ in the Bakassi
Peninsula on the night of 18 to 19 Febmary 1994, stating that "first hand
information" - the sourceof which isnot identified- states that in the course
of an exchange of fire between Nigerian forces "trying to occupy the
peninsula" and Cameroonian forces, the Nigerian losses amounted to an
estimatedfour boats of eight men each, and a pirogue. Rather surprisingly,
consideringCameroon'sclaim to Bakassi,the notestates that one of the four
boats was recoveredempty in Nigeria T his note
- does not mention where the incidents referredtotmk place,
- refers only to a single "exchangeof fire" whichtook place on the night
of 18/19 Febmary 1994,
406 Idenao Lsxituaatsumç disiancfromthr BakassiPeninsula,approxirny0kitornetrsoutheastf
themouth01theRiodel Rey(seeFig24.1).Itis nocleawhy a f~ontipolicpos islrica~rhere. - gives a very direrent account of estimaml Nigerian losses from that
contained in the note of9 February 1994referredto at (1) above,which
suggested thatthe Nigerian boatsunk byCamemonhad in totalcontained
approximately80 men.
24.89 In AnnexOC 1of its Observationson Nigeria'sPreliminav Objections,Cameroon
providedcertain other information. On page 359, there appears to be a suggestion
that on 19 Febmary 1994 at Akwathere was an attack by a Nigerian patrol ona
Cameroonian patrol. A messagedated 21 February 1994 is referred 10,and this is
apparentlythe documentappearingon page 363, which seernsto havebeen sent by
the Head of Post at Ekondo Titi.407 The note Statesthat an attack took place in
Bakassi during the night of 18/19 February 1994, but does not indicate where in
Bakassi it took place. Akwais only referredto later in the message, apparentlyin
describing the location of certain Nigerian forces. Additionally,the note does not
indicatethe original source of the information containedn it.
2A.90 Thus, in addition to Cameroon's misrepresentation of the wntext in which the
alleged incidents occurred, none of them has ken adequately identified, or
established by sufficientevidence, whether director circumstantial. Quite apart
from the general considerationsreferredto above,particularly in paragraphs24.48
and 24.62, Nigeria denies that they give nse toany internationalresponsibilityon
its part.
7. Cameroon's allegations concerning the occupation by Nigeria of partsof théBakassi
Peninsula since 1993or 1994
24.91 Nigeria has demonstrated that Cameroon has failed satisfactorilyto establish any
individual incident whichtook place in the Bakassi Peninsula in 1993 or 1994.
" EkunrloTiti issimatedatsoinedisfromtheBakassiPenirisula,appronim40 kilometrftheEast
ofthe RidelRey (sceFig. 24.1). However,it is appropriateto address Cameroon'sgeneralassertionthat Nigeriahas
occupied parts of the Bakassi Peninsula. For the reasons to be given, this
"occupation" involves no conduct by Nigeria which gives rise to international
respnsibility on its part.
24.92 In paragraph 2 of its Application, Cameroon States that Nigeria's troops are
"occupying several Cameroonian localities in the Bakaçsi Peninsula". The
paragraphimpliesthat this occupationhad beencontinuing"sincethe end of 1993".
Paragraph 1.20 of Cameroon's Memorialrefers to "the invasion of a part of the
Bakassi Peninsula by Nigerian troops in December1993 and January-kbmary
1994". Paragraph6.04 of the Memorialrefers to "a continuouscivil and military
occupation" of the Bakassi Peninsula since 1994. Thus, although Cameroon is
unableto specify exactlywhen it started,'"~t appears to be alleginganoccupation
by Nigeria of at least some parPm of the Bakassi Peninsula, which occupation
began either at the end of 1993or the beginningof 1994.
24.93 In fact Nigeria can confirm that it currently occupiesthe BakassiPeninsula; it has
done so since its Independence in1960. The extentof thiç occupationis set out in
Chapter 10of this Counter-MernorialI .t has primarilytakenthe fom of a Nigerian
civil administration of the Peninsula. As indicated in paragraph24.13, because
sovereigntyover the Bakassi Peninsula vested in and still vests in Nigeria, such
manifestation of Nigerian State authority in the Peninsula was and is a lawful
exerciseof Nigeria's territorial sovereignty.
'" Toillustrate thispoint: duringthe oralhearing ofNigeria'sPreliminaryObjections.Camemonreferred(CR
9813,p.26)to"the invasion ofthe sakassi Peninsulain Febmary 1994"; at the same hearing(CR 98f4,p.
32).itreferreta'the invasion ofJabane andDiamond Islaby Nigeriantroopsfrom21 December1993
onuards".
Nigeria notes that Camemon has not been consistent concerningeeographicalextent of this alleged
kupation; see forexampleParagraph6.155 of thMemorial which, in detailingthe extentofthe Nigerian
occupation.efenta the Nigerianmiliiaryforcesremainingin occupationol "the Jareaofthe Bakassi
Rninwla". without any other pan of Bakassibeing rcferm.d However.the paragraphalsorefço u)a
map showiy areas "occupieby the Nigerians". Althoughthelocationofthis mnp isnutidcntified. it
appcarrtnreferüithe mapappearingon page600of theMemoriul. which indicates withshadingthe "area
ofNigerianoccupation". On this map,thwholeofthe Bakassi Peninsulaisshaded,asweasa mbstantial
arcalyingmthe East of the peninsula.24.94 In December 1993, Nigerian troops were deployed to certain locations in the
Bakassi Peninsula. As explained in the Note to the President of the Security
Council dated 4 March 1994(NC-M 347), these troops were despatchedto Abana
and Atabong (which - as appears from the map on page 566 of the Memorial -
Cameroon refers to as "Idabato") in order to avoid a violent clash between
claimantsto those settlementsrepresentingtwoNigerianStates,namely Akwa Ibom
and Cross River (see Fig. 24.1). As the note states, this deployment had the
desired effect. Cameroon amexed a French translationof this Note at AnnexMC
344, yet failed to refer tothis important aspectof its contentsin Chapter 6 of the
Memonal. However, itis clear that the Cameroonian presswere, as early as 10
January 1994, fully awareof the reasons why these forces had ben despatchedto
Bakassi(see article appearing inameroon Tribun aeNC-M 348).
24.95 As explainedin the Noteof 4 March 1994to the Presidenrof the SecurirCouncil,
Cameroon expressedcertain concerns in relationto thisNigerian tmop movement.
These concerns led to apeacefuldialoguebetweenthe two States at thebeginning
of 1994. However, whilst this dialogue was proceeding, Cameroodian forces
launched severalattackson Nigerian settlementsand militarypositions in Bakassi.
A notefrom AkpabuyoLocal Governrnentto the MilitaryAdministratorat Calabar
(NC-M349)records that, inJanuary 1994,Cameroonianforcesactackedsettlements
in Bakassi and ordered inhabitants to vacate them. Furthemore, as stated at
paragraph 24.87 above, Cameroon launched attackson Nigerian troops on 14, 18
and 19 Febniary 1994. Cameroon was fully aware of these attacks. In a Note
dated 25 April 1994(NC-M 350), Nigeria refersto the fact that, since December
1993, Cameroonian troops inBakassi hadembarked upon asysternaticcampaign
againstthe Nigerians livingin Bakassi,driving manyof themout ofBakassi. Some
ofthese attacks by Cameroon are the subject of a Nigerian counterclaim - see
Chapter 25 below.24.96 Facedwith these and subsequentattacks by Cameroon, Nigeria was left with little
choice but to maintain the presence of its military forces in the BakassiPeninsula
from February 1994onwards.
8. Incident referred to inan AFP dispatch of 1 July 1970
24.97 The next two allegations were raised by Cameroon in paragraph 6.50 of its
Memorial.The firstone is presentedby Cameroonby quotingfmm an AFP Report
of 1 July 1970:
"incidentshaverecently occurred at sea betweenCamemnian fishing
boats and Nigerian warshipsarresting them in Cameroonian wters."
Nigeria notes thatCameroon hasnot givenanydates orlocationsin respectof these
24.98
incidents,or any other details about them.
24.99 ïùrning to Cameroon's evidence, the AFP report referred to is a~e~ed tothe
Memorialat MC 237. The sourceof the report is not identified,the report merely
referring to "reliable sources"; these sources weretum basing their reports on
"a protestnote from the Doualafishingfleet owners"(seeFig. 24.1 for the position
of Douala), but the text of that note has not been produced, nor is its addressee
identified.
24.100 Moreover, Cameroon has incorrectly reproduced the quotation from MC 237,
without indicating thatwords have been omitted. The passage in fact refers to
Cameroonian fishermen being searched "dans les eaux camerounaises dou [sic]
Infernafionales"(emphasisadded). Thus, the author of the report upon which the
allegationis based wasunsure whether the incidents referredto acmallytookplace
in Cameroonian waters, adrnitting that they may have occurred in internarional
waters.24.101 Nigeria also points out that these incidentsoccurred (so it is said) nearly 30 years
ago. Cameroon has failed to draw attention to any protest by Cameroon about
them, or to any attempts by Cameroon to raise the matter in bilateral meetings.
Instead Cameroon has relied solely ona single vague and unconvincing press
report. Inthese circumstances,and for the reasons givenin paragraphs 24.52 to
24.54, any claim in respect of this alleged incidentis nowbabyelapse of time.
24.1M Not only can any suchclaim no longerbe pursued, buin fact(and bearingin mind
the Court's admonitionto becautious inattributingweightto press repo-above,
paragraph 24.46), none of these alleged incidentshas been adequately identified,
or establishedby sufficientevidence. Forthesereasons,and quite apan from the
general considerationsreferred to above, particularly in paragraphs24.48 and
24.62, Nigeria denies that they give rise to anyinternationalresponsibilityon its
part.
9. Incident of16 June 1984
24.103 The second allegationin paragraph6.50 of the Mernoriairelatestothe "plundering
of boatmen in Cameroonian territorialwaters by Nigerian customs officials"A
notefrom the GeneralDelegation ofthe NationalGendarmerie, dated 18Jul 1y984,
is quotedthus:
"During the day of 16 June 1984, a patrol of Nigerian customs
officialsentered our territorialwaters and set up a post for checking
on piroguesin a creek in theicinityof thRio del Rey;eachpirogue
travelling towards Cameroon was thoroughiy checked, and the
passengersobliged to contribute a sum oIO00 Nairasto secure their
release."
24.104 A copy of the note quotedby Cameroonappears atAnnexMC 270. Nigeria notes
that: (1) the text of the note reproducedby Cameroon is, once again, incomplete: it
omits (without any indication of the omission) words in the original that
indicatethat the sourceof the report is not the Gendarmerie iwlf, but rather
an unspecified "reliable source";
(2) neither the note nor the Memorial is specific as to the location of this
incident;
(3) the notealso statesthat incidentsof the typereferredto are imputedbyother
sources to Camerooniangendarmes.410
24.IO5 In iü Observationson Nigeria's PreliminaryObjections, Cameroon indicates on
page 387of Amex OC 1that on 16June 1984at "Riodel Rey",a provisional,and
illegal,Nigeriancustomspost wasinstalled,and statesthat "oneCameroonian boat"
nas illegallysearched. This is clearly the same incident as originallycited in the
Memorial:it has the same date, and in support Cameroonannexesat page 393the
same note which appears at Annex MC270 of theMernori~l.~"However,bythe
tirne Cameroon came to assemble its Observations on Nigeria's Preliminary
Objections,Cameroon was able only to Saythat a singleboat had ken stoppedby
the Nigeriancustomsofficers,whereas theMernorialhad indicatedthat manyboats
were involved. Furthemore, Cameroon's evident doubts about the incident are
reflected in the factthat it is not listed in the chronologicalscheduleof boundary
incidentsappearing inAnnexMC 362 to the Memorial.
Cameroon's allegation concernsNigerian activity"in a creek in the vicinity of the
24.106
Rio del Rey". The Rio delReyhas many creeks; and there are creekçoutside the
410
Theclaimin paragraph6.51 of theMemorialthatthesourceof thisimputationis "Nigerianpropaganda"
isnotsupportedbythecontentsof thenote.
4" Canle~on also annexes anotefromtheCompagnie Françaisee ProspecrioSismiquedakd 5 luly1985.
Thisnoterefersfoan incidentwhichallegedlyiook placein theRio delRey.owever,Uie dak ni lhis'
allegedincidentis saidhy theautfohavebeenthesamedateas thatof Ibenore5 luly1985. Thenote
thereforha nothingfodo withtheallegationcontainedinthMernorial. Rio del Reywhich can be regarded as in its vicinity(see Fig. 24.2). The Rio del
Rey itself constitutes the boundary between Nigeriaand Carneroon (see above,
Chapter Il). The fact (evenif proved)that Nigenan customsofficiaisacted "in the
vicinity of the Rio del Rey" is therefore not enoughin itself toestablishthat they
therebyencroached into Cameroon'sterritorial sea. In so far as theywere acting
on the BakassiPeninsula, or in Nigerianwatersoff Bakassior in the Rio del Rey,
they were acting in lawful exercise of Nigeria's territonal swereignty over those
areas.
24.107 Cameroon's evidence for this incident consistssolely of an interna1gendarmerie
report. Despite that report's assertion of a violation of Cameroonian territorial
waters, Cameroon has provided noevidence that it protested about this matter at
any time prior to the filingof its Mernorialin this case, or othcnvise brought it to
the attentionof the Nigerian govemrnent. The incidentis said tohave taken place
in 1984: that is 11 years before Cameroon lodged its MernorialdrawingNigeria's
attention toit for the first tirne. For the reasons given in pamgraphs24.52 to
24.54, any claim in respect of this alleged incidenis now barred by lapseof time.
24.108 Not only is the clairn now stale, but Cameroon has failed to identify this alleged
incidentadequately,or to establishit by sufficientwidence. Accordingly,and quite
apart from the general considerations referred to above, particularly in
paragraphs 24.48 and 24.62, Nigeria denies that itgives rise to any international
responsibilityon its part.
10. Incidents referred to in a message dated 2 December 1985
24.109 The next two allegationsare made in paragraph6.52 of the Mernorial. The first
allegation concerns a "violationof Cameroonian territorial wdters"(the second is
dealt with in paragraph24.118 et seq.). The only supportingdocumentrelied on
is an interna1Cameroonian note daled 2 Decembcr 1985 (a teiegmphicmessageFigure 24.2
c.Cra.+, Mgtrian"am (0, Wiifea,"re
Lnl..dTnnn<neM"ritor hoimion
,-",..,..-,lO
C 2 . 6 .
II. appearing at Annex MC 277). This note refers to an inquiry among the "Innua
Mba" fishermen. This inquiryrevealedthat:
"The Nigerian customsand maritime police regularlypatmlied in our
territorial waters."
24.110 No indicationis given in the Memorialof when or where these patmls were said
to havetaken place.
24.111 Furthermore, the single interna1documentrelied upon by Cameroon is based on a
report two weeks earlier from a Sub-Prefecture, whichin mm is based on the
testimonyof "colleagues", which in tum involvedthe reporting ofthe testimonyof
"Creekinhabitants". The note thus hardly constitutesreliable first-bandevidence.
24.112 In its Observations on Nigeria's Prelimiwv Objectiom, Camemon becomes
marginally more specificconcerning the location of these incidents, by indicating
at page 359 of Annex OC 1 that Cameroonianterritory in the "Innua-Mbafishery"
had been violatedbyelementsofthe Nigerianmaritimepoliceand customs.'Nigeria
presumes that this allegationis relatedto the one containedin the MemoriaI,since
in support of its allegation Cameroon presents thesame note dated2 December
1985which appearedat AnnexMC 277 (page 368 of Annex OC1).
24.113 The locationbelatedly referredto in the CameroonianObservationshas not - so far
as Nigeria can tell-been properly identified. Cameroondoes not indicateon the
sketch maps appearing in Chapter6 of the MemoriaIthe location of the place it
refersto as "Imua-Mba fishery". It seems fromthe legendappeacingon page 359
of the Observationsthat on the map on that same page, Cameroon has in fact
highlighted by the number "37"the location of "KomboAbedimo", not "Innua-
Mba". There is a settlement by the name of Inua Mba in Bakassi; but that
settlement is located near the southeast corner of Bakassi, whichcorner is the Figure 24.3
FORILIUSTRATIV€ PURPOONLY Il. Incidentof 27 June 1986
24.118 The second allegation referred to in paragraph 6.52 of Cameroon's Memorial
concerns an alleged "violationof territorial waters by threeNigerian warshipson
27 June 1986". An interna1Camerooniannote is quoted whichstates that:
"...three Nigerian warships did indeed pass through our territorial
waterson 27.6.86.
The reconnaissancehavingbeen effected, confirmationwas given [to]
us by the PECïEN oil Company,operatingin Cameroon. The visual
inspection carried out confirms that the Nigerianpatrol passed right
through the Cameroonianoilfield and thatit steereda course of 230"
leaving the TOTALand PECTEN platformson its port side. Such
manoeuvresare testifiedto be cornmonin the zone."
24.119 The document from which Cameroon quotes is an interna1Cameroonian report
dakd 25 July 1986, from the Commandant of the Second Military Region of
Cameroon to the Cameroonian Minister Delegate of the Presidencyin charge of
Defence,appearing at AnnexMC 280. However,Cameroon bas once again quoted
a document inaccurately -once again a key phrase has ken left out of the quoted
text,withoutanyindicationthat an omissionhasoccurred. Thisis thephrase which
states that the warships allegedlypassed "southof pointGu, and testifiesthat this
was in an area that has "neverhad ifs boundarydefined by agreement"(emphasis
added). It is therefore difficultto see on what basis Cameroon claims that this
incidenttook place in Cameroonian territorialwaters.
It is also evident that the aerial reconnaissancewas unable by itsetopinpoint a
24.120
lmation for the alleged incident. Cameroon has had to rely upon information
receivedfrom a privateconcern, the Pecten Oil Company.
24.121 Once again, the fact that Cameroonhas not been able to provideany evidencethat
it protested about this matter, or otherwise raised it thehNigerian authorities,
atanytirneprior to the filingof itsMemorialcreatesdoubtsas to the circurnstances of its occurrenceand raises a presumption thatCameroonthoughtthe incidentwas
too insubstantial to pursue, or was othenvise not one for which Nigeria bore
responsibility. Nigeria also notes that no incidentof this datis referred toin the
Schedulesof Incidents appearingat AnnexesMC 362 or MC 363. In any event,
having allegedlyoccurred nearly 13years ago, any daim in respect of this alleged
incident is, for theeasonsgivenin paragraphs24.52 to 24.54, nowbarred bylapse
of time.
24.122 For these reasons, together with Cameroon'sfailure adequately to identify this
incident, or establish it by sufficientevidence, and quite apart from the general
considerations referred to above, particularly in paragraphs 24.48 and 24.62,
Nigeria denies that it gives rise to any internationalresponsibilityon its part.
12. Incident referredto in a note dated27 August 1991
24.123 The next incident is referredto in paragraph 6.53 of the Memorinl,which merely
quotes from an intemal Cameroonian document asfollows:
"It transpires from [a sea mission of the Cameroonian naval forces]
that two light Raider-type craftpainted green, armed and havingeach
a crew of six uniformedmen cast off from Jabane at the approach of
the mission. Pursued as a dissuasivemeasure, theywere accompanied
back to the maritimeboundary withoutcontact or skirmish."
24.124 Nigerianotesthat the presentationof this incidentdoesnot arnountto an adequately
specificallegationinvolvingNigeria's internationalresponsibility:
(1) The date on which the incident issaid to have occurred has not been
specifiedin theMemorial(although theAnnexrelied on givesthe dateof the
"mission" as 12 August 1991). (2) No indicationhasbeen given concemingthe idenri6 of the vesselwhich set
sail from Abana or its occupants.
(3) The mere fact that there were said to be six "uniformed"men on board is
insufficient to establish that they were Nigerian ofiicials or agents:
Cameroonhas thus failed to showthat the alleged incident(minoras it was)
was attributableto Nigeria.
(4) No information is provided regarding what the occupants of the vessel
referredto are supposedto havedone, so as to give rise to anyinternational
responsibilityon Nigeria's part.
24.125 The Memorialindicates thatthe note quotedappears at Annex MC 311. This is a
note from the Minister Delegate at the Presidencyin charge of Defence to the
President of the Republic, dated27 August 1991. Once again, Cameroon has
omittedwordsfrom its quotationwithout indicating thatit has done so; the missing
words, which shouldhaveappeared after the fifthwordof the quote, indicatethat -
apparently contraryto expectations -there wasno boatRyinga foreign flag moored
ofï Abana. The note also refers to the fact that no Nigerian flag was hoisted in
Abana.
24.126 Not only has this alleged incidentnot been adequatelyidentifid, or establishedby
sufficientevidence, but Cameroon has once again not been able to provide any
evidence that it protested about this matter at any the prior to the filiriogf its
Mernorial. Nor it this incident referredto in the Schedulesof Incidents appearing
at Annexes MC 362 and 363. This creates doubts as to the circumstancesof its
occurrence, and raises a presumptionthat Cameroon thought the incidentwas too
insubstantial to pursue, or was othenvise not one for which Nigeria bore
responsibility.24.127 For the foregoingreasons, and quite apart from the general considerationsreferred
to above, particularly in paragraphs24.48 and 24.62, Nigeria denies that it gives
rise to any internationalresponsibilityon its part.
13. Incident referred toin a note dated 16 April 1981
24.128 The next three allegations are referred to in paragraph 6.56 of Cameroon's
Memorial. The firstof these allegations relatesto the "presenceof Nigeriantroops
in Idabato" (see Fig.24.4).
24.129 Cameroon's Memorialdoes not indicateany specificdate for this allegation.
24.130 As evidencesupportingthis allegation,the Mernoriairefersto AnnexMC258. This
appears to be a note dated 16 April 1981. The author of the noteisnot identified
in the note or byCameroon either in the Memorialur on the front sheet of the
Annex. The note - which is said to be based upon "an occasional but credible
source", which is also not identifie- states that certain employees of "Bos et
Kalis", chargedwith the taskofprospectingforoil, "surprised"20 armed "Nigerian
soldiers" in Abana (see Fig. 24.4). However,the note states that these "soldiers"
were wearing canvas shirts (apparently the typeused by the Nigerian amy) but
camouflagetrousers of the type worn by the Camemonianamy. The note then
states that"ifour sources are ?Obe believed, thesepirates fominately showedno
hostility or aggression" upon the arriva1of the oil prospectors(emphasisadded).
The notealsomentionsthatthese "soldiers"had "apparently"disembarkedat Abana
from two civilian vessels, belongingto a man who was "formerly a businessman
at Idabato".
- This note makesno mentionof any soldiershavingken in "Idabato"(Atabong),
as alleged in the Memorial.Figure21.4
FORILLUSTRATIPURWSESONLY - The note is very confused concerning the identityof these allegedly "Nigerian
soldiers". It notes that they were merely wearing shirts of a type wom by
Nigerian soldiers, while thetrousers they werewearingactually identifiedthem
as Camerooniansoldiers. The note also refers tothem as "pirates" and states
that they arrived in civilianvessel-therebysuggestingthat these men werenot
"soldiers" at all, let alone of the Nigerian army. Cameroon has failed to
establish that thisalleged incidentas attributableto Nigeria.
- No indication is given concerning the original source of the information.
contained in the note; it merely states thatit is based on an "occasional but
credible source". Whatever source this was, it is cIear that the author of the
note was unsure of its credibility, and he indicates this doubt by using the
expression "if our sources are to be believed" in the second paragraphof the
note.
24.131 Once again, Cameroon has not provided any evidence that it protested about this
matter, or othenvise brought it to the attentionof the Nigerianauthorities, at any
time prior to the filingof its Memorial. Apart from the doubts which thiscreates
aboutthe occurrenceof the incident,it raisesa presumption that Cameroonthought
the incident was too insubstantialto pursue, or was othenvise not one for which
Nigeria bore responsibility. This presumption is further strengthenedby the fact
that the incidentis not referredto in the Schedulesappearing in Annexes MC 362
and MC 363.
24.132 This incident allegedlytook place 18years ago. Giventhe absenceof protestabout
it,anyclaim in respectof it is, for the reasonsgiven in paragraphs24.52 to 24.54,
nowbarred by lapse of tirne.
24.133 For these reasons, and in addition to the absence of adequate identificatioof this
incident, or sufficientevidence to establish it; and quite apan from the general24.139 Thus not only is the claim not adequatelysubstantiated,but it isin any event now
stale. Quite apart from the general considerationsreferred to above, particularly
in paragraphs24.48 and 24.62, Nigeria deniesthat it givesrise to any international
responsibilityon its part.
15. Incident referred to in a message dated 29 September 1990
24.140 The third allegation in paragraph 6.56 of Cameroon's Mernorialinvolves a
quotarionfrom a messagedated 29 September 1990from the "chief of the Idabato
frontier post" (Annex MC 304). This allegedly "revealsthat the Nigerian patrols
are beginning Io display audacity at Jabane". The quotation from the noteStates
that:
".,. Nigerian police and Navy visits Jabane and even spend nigh&
there for duty in Cameroon territory matters [sic] ..'"'
24.141 No indicationis givenof the dates on whichthese visitsare supposedto havetaken
place.
24.142 The last lines of the message, not quoted by Cameroon, state that the author was
"not sure" that the Nigenans referred to are "authorisedto visit or patrol" Abana
fishingport. It is therefore evident thatthe author of the message considered it
possible thatthe Nigerians were authorisedto be present in Abana.
24.143 The lack of any date for this alleged incident, and Cameroon'sevidentuncertainty
as tosurroundingcircumstances,render it inadequately identified,and insufficiently
established by evidence. Quite apart from the general considerations referred to
412 Itis apparentfromthe telegraphicmessagequotedthatthequoratiorsihaveended witha reference
m "terrimrial aters".n"terrimrmaners". above,particularly inparagraphs24.48and 24.62, Nigeriadenies that it givesrise
to any internationalresponsibilityon its part.
16. Incident referred to in message dated 10 December 1990
24.144 The next series of allegations are referred to in paragraphs 6.57 and 6.58 of
Cameroon'sMemorial. Paragraph6.57quotesfrom a message dated10December
1990said to be from the Prefectof Ndian Division, which Statesthat:
"...an armed Nigerian marine battalionhas occupiedJabane .. And
has hoisted the NigerianRag,after lowering thatof Cameroon ..."
24.145 Once again, the date of this alleged incidentis not indicated
24.146 The message quotedappears at AnnexMC 306
- However,the message indicates that it is not in fact from the Prefectof Ndian,
but from "ChefSPSNISOBuea" -a reference whichCameroondoesnot further
identify on the front sheet of the Annex, but which shows that the message
originated ata considerable distance from Bakassi(see Fig. 24.1);
- additionally, the passage quotedin the Memorialmisses out the opening phrase
of the message, which reads"He [or "it"] repliesto me" -no indicationis given
as to whom this refers. Thus, neither the author nor his immediatesource are
identified, letalone the original sourceof the information.
- Surprisingly, the document bears amanuscriptendomment, apparentlya filing
direction, dated2 January 1990. 24.147 Nigerianotes that the original sourceof the informationntained inthe document
quoiedhas not beenidentifiedby Cameroon. The factthat it bears an endorsement
predating bynearly a yearthe dateon the documentsthemselvesalso raises doubts.
24.148 The lack of any date for this alleged incident, and the inadequacyof the document
cited in support of it, demonstrate Cameroon'sfailure properly to establish its
allegation. Accordingly, andquite apart from the general considerations referred
toabove, particularly in paragraphs24.48 and 24.62, Nigeria denies that it gives
rise toany internationalresponsibilityon its part.
17. Incident referredto inmessagedated 13 December 1990
24.149 Paragraph 6.58 of Cameroon's Mernorial quotes from a message dated 13
December 1990, again said tobe from the Prefectof Ndian. Cameroon statesthat
"theextreme importance" of the messageis evident from the fact thatitwas sent
by the"flash" system. The message statesthat
"Nigerian sailors lowered Cameroonian flag ai Jabane ... Hoisted
Nigerian flag in same localit...Stationed a Nigerianwarshipwith a
strengthof severalbattalion.."
24.150 No dates for these alleged incidentshavebeen given.
24.151 The document quotedappears at Annex MC 307.
- Once again, it is clear that this message dated 13 December 1990 is from
I
"CSPSNISO"in Buea (see Fig. 24.1), and not the Prefectof Ndian.
- The note appears to refer to the contentsof a messaF which had been sent by
the Prefect of Ndian, which appears to have merely been forwarding a translationof an "SPSN Citation"dated 23 November 1990, which in tum was
based on information coming from an unspecified source in "ldabado [sic]"
(Atabong).
- Thus, wheneverthis incident allegedly didtake place, andalthough it was first
reported at least as early as 23 November, its"very urgent" message was not
fonvardedto Buea until 10 December,and notto Yaoundé until 13 December -
at least three weeks after the incident. Nonetheless,in paragraph 6.58 of its
MemorialCameroon is at pains to point out the extreme importance of the
message of13December 1990,as allegedly evidencedbyit being sentunder the
"flash"system.
- The original message dated23 November 1990 relied on information coming
from Atabong, eventhough the incident is said tohavetakenplace in Abana.
- This note also appears tohavea manuscriptfilingendorsementdated 2 Januu-y
1990.
24.152 Nigeria notes that theoriginal sourceof the informationcontained in thedocument
quotedhas notbeen identifiedbyCameroon. Thefact that itbears an endorsement
pre-datingbynearly a yearthe dateon the documentsthemselvesalsoraisesdoubts.
24.153 Again Cameroon; by failing to specify a date for this alleged incident andby
seekingto support it with inadequate documentary evidence, has faiiedproperly to
establish its allegation. Accordingly, and quite apart fmm the general
considerations referred to above, particularly in paragraphs24.48 and 24.62,
Nigeria denies that it gives rise to any intemationalresponsibilityitspart. 18. incident of 27 April 1991
24.154 The next incident, referred to in paragraph 6.58 of Cameroon's Mernorial, is
presentedby Cameroon purely by quoting from a document whichappears at MC
308. The documentis described as "a notefor the regionalmilitary commander",
but is othenvise totally anonymous, particularly as regards the sender. The first
part of the passage quotedstates that:
"During the day of 27 April 1991, the Idabato frontier post was
informedof the presence of a Nigerian flag and a Nigenan signboard
set up by the Nigeriancommuneof Mbo in the fishingport of Jabane,
in Cameroonian territory. ThePrefectimmediatelyordered an on-site
visit...On the way,the Cameroonian delegation fire td oshotsin the
air"
24.155 The quotation in the original Memonal in French then continues:
"Arrivé sur les lieux,la délégation a aperçu un navirenigérianqui
s'éloignait,avec à son bord cinq officiers nigérians."'
24.156 Cameroonhas substantially misquoted theoriginal document. This partof the note
in fact reads:
"... sur les lieux quelques agentsde la commune nigérianede Mbo
rencontrés dans ce portont été interpellés. Après leur audition, ils ont
étéimmédiatement relaxés. "414
24.157 The note also states that the Cameroonian gendarmeshad confiscatedthe boats of
the Nigerians to which thenote refers.
Thistranslatesas: "Uponarrival. the delepatioaNigerianship movingaway withfiueNigerian
officcrsaboanl."
414 Thistramlatesas"onthesite somerepreseritasftheNigeriancommuneofMbo foundinrhtponwere
I intcrccpud. Aftcrhcaringthemthey wereimmediatelyreleased."24.158 Neither Cameroon, nor the text of the note, gives any indication of which act, if
any, Nigeria is supposed to be responsiblefor, nor why it is so responsible. The
referenceto "quelquesagentsde la commune nigérianede Mbo" sugests at least
serious doubt about whetherthe persons concemedwereacting as organsor agents
of the Federal Republic of Nigeria, and about the capacity in which they were
present.
24.159 The note reliedupon by Carneroonis anonymous. It is apparentfrom the omission
of the author's identityon the front sheetof AnnexMC 308 that Cameroon is also
unable to identify the author, let alone the original source of the information
contained inthe note.
24.160 Concerningthe contentsof the note:
- since the only people found at Abana were representatives of a Nigerian
community nearby, who were released after question@, the firing by the
Camerooniansof two shotsin the air and the seinireof the Nigerians'boat seem
unjustified;
- althoughthe matters reported inthe noteare saidto have occumd on 27 April
1991, the note annexed is in fact dated4 September 1991 - over four months
later. This delay in interna1reporting suggeststhat Cameroon did not treat the
initial reporteriously at all.
24.161 Once again, the fact that Cameroon hasnot been able to provideany evidence that
it protested about thisatter at any time priorto the filing oitsMernorialcasts
doubt on the occurrence of the incident, and raises a presumption that Cameroon
thought theincidentwasnot substantialenoughto pursue, or wasothenvise not one
for which Nigeria bore responsibility. In fact, it woulseem that the matter can
be sumrnarised by twofutthe wrords which have been omittedbyCameroon in
reproducingthe text of the note: "sans incident"-without incident.24.162 The evidence cited in support of this alleged incident- itself insubstanti-lis
inadequateboth as regardsthe circumstancesof the alleged incident, and the basis
upon which Nigeriais said to incur internationalresponsibility. Accordingly,and
quite apart from the general considerations referred to above, panicularly in
paragraphs24.48 and 24.62, Nigeria denies that it gives rise toany international
responsibilityon its part.
19. Incidents referred toin a note dated 29 October 1992
24.163 The next series of allegations is contained in paragraphs 6.59 10 6.62 of
Cameroon's Mernorial. Paragraph 6.59'Statesthat "Nigerian elernents continued
their incursions into Jabane", and quotes "a note o29 Oftober 1992, from the
Idabato frontier post", which was apparently writtenin Englishand reads:
"Occasionalclandestinevisit [sict]thearea bythe Nigerianmilitary -
and immigrationofficers."
24.164 Paragraph6.60, suggeststhat "themessagethen gives extremelyexplicitparticulars
of the Nigenan attempts to establish a clandestine fledvité at Jabane", and
continuesits quotation:
"conceming the clandestine visits to the area by the Nigerian forces,
they continueto do so. A newdevelopment hashoweverbeen noticed
being the plantingof two non fixedsign boards in the area.
The first of them whichis at the entrancereads:
WELCOME TO ABANACLAN
AKAPABUYOLOCALGOVERNMENTAREA
FEDERAL REPUBLICOF NIGERIA
It is blue incolour, and the letters in white.The second is in the
middle of thetownand whereour removed flagwasformerlyplanted.
This area showssigns of a recent firedisaster. Another is rumoured to be planted at the Beach, andwhat isactually
written on it as [sic] not being [sic] cross checkedyet, this wouldbe
repercuted [sic] immediatelyit is done.
On the 27th of October 1992,the aboveofficersas usual visited the
area, but th'istime did not land. They later left and took the creek in
the direction of Isanguelesub-Division."
24.165 However, Cameroon has failed to annex this document tothe Mernorial. This
makes it impossible to assess the accuracy andcontext of the quotation in the
Mernorial. Additionally,as quoted, it gives no indication of the sources of its
information.
24.166 Cameroon has not indicated the dateson which any uf thesc incidents are said to
have occurred. Furthemore:
- It appearsthat Cameroonis claimingthat the allegedpresenceof two signboards
inAbana indicatesa visit by Nigerian militaryor ImmigrationOtficers. There
is no basis for this claim.
- Nigeria isunabletounderstandwhyCameroonreferslater on in paragraph6.60,
after the quotation,to theurningof signboardsanda Cameroonianflagand the
hoistingof a Nigerian flag,in terms whichsuggest that the quotednote referred
to such events; in fact, the note (as quoted)dms not refeto any of them.
24.167 A quotation in paragraph 6.62 from a message dated 5 May 1993 from the
Cameroonian Minister of External Relationsto the NigerianEmbassy in Yaoundé
(appearing atAnnexMC 325) states that:
"a recent visitby the Cameroonian authoritiesto the village enabled
two signs to be brought back that had been setup at Jabane reading:
'Welcometo Abana Clan AkpabuyoLocal Gwemrnent Area - Cross
River State- Federal Republicof Nigeria'." (emphasisadded)24.168 This notewasdated oversix months after the dateof the notequoted at paragraphs
6.59 and 6.60. Additionally,the wordingon the sign referredtois not the same.
It is thus unclear whether thesame incident is being referredto.In any evenr:
- once again, dates havenot been suppliedfor the incidents alleged;
- no source is given for the informationcontained in the later note;
- Cameroon does not quote, or even refer to,the second paragraph of the note,
which states thatit was written in response to a letter from the Governent of
the Stateof Cross River in Nigeria, which reportedon an attempt by Cameroon
ui annex certain Nigerian villagesin AkwaIbom, and raids carrieciout bythe
Carneroonian authoritiesagainst thepeople of Abana;
- the matter in issue was insubstantial, and involvd no material damage to
Cameroon.
24.169 The absence of dates on which the allegedincidentsare said IOhaveoccurred, and
the incompleteness and lackof clarity of the documentary evidence reliedon by
Cameroon, demonstrate Cameroon's failure to establish its allegations.
Accordingly, and quite apart from the general considerations referred to above,
particularlyin paragraphs24.48 and24.62, Nigeriadeniesthattheygiverise to any
intemational responsibilityon its part.
20. Incident referred to in a note dated 18 December 1992
24.170 The nextalleged incidentis referredto in paragraph6.60 of Cameroon'sMernorial.
This paragraph alleges that "theNigerian forces ...built a school at Jabane". A
quotation in that paragraph, from what is described as a note dated 18 December
1992from "a frontier post chief of SouthWestProvince", states that: "The community primary school, opened and run by the local
community of Jabane, receives subsidies hm the Akapabuyo local
govemment .. the commune of Akwa-Ibomstate in Nigeria ...Built
of temporary materials, it is already king transfonned into a
permanent structure ...Teachersal1from Nigeria ..."
24.171 There is no basis for the statement that theschool wasbuilt by"Nigerianforces".
24.172 The note relied upon by Cameroon(MC 322)statesthat the schml ihw opened by
the localcommunityof Abana. Similarly,the buildingof a school in Abana is also
mentioned in the quotation from the note of 5 May 1993 from the Cameroonian
Ministry of Extemal Relations to the Nigerian Embassy inYaoundéappearing in
paragraph 6.62 of the Mernorial,which statesthat in Abana
"...the Nigeriancommunityhas even built a primary school. "
This note thus accepts that theschoolwas not builtby "Nigerian forces"; nor does
it attach any responsibilityto Nigeria for the buildingof the school, although this
would have been an obviousopportunity to have done so. It isalso evident that
Cameroon considers the local communityof Abana to be "Nigerian" - Nigeria is
also of this view.
24.173 The factis that this was a Nigerian Govemmentprimary school built in a Nigerian
town, Abana, to house the school whichhad previously operatedout of a church
hall (see paragraph 10.96 above,and footnote).
24.174 Once again Carneroon'sown account of events isinaccurate, and insufficientto
establish Nigeria's international responsibility. Quite apart from the general
considerationsreferredto above,particularlyin paragraphs24.48 and 24.62 above,
Nigeria denies that it bears any international responsibility arisingout of this
matter.! 21. Incidents referred toin a Messagedated23 June 1993
24.175 Paragraph 6.62 of Cameroon's Memonal appears to indicate that the two Notes
quoted in that paragraph are merely brought as examples of protests against
incursions already referredto. However,the Note dated 23 June 1993 from the
Minister of Extemal Affairs of Cameroon to the Nigerian Embassy(appearing at
Annex MC 326)does refer to other incidents inthe BakassiPeninsula:
"The settlement of Nigerians in Jabaneis not only increasing on a
daily basis, but this influxis going at aspeedthat tantamoun[sicto
a disguisedannexationof Cameroon territoryas tesrifieby the several
attemptsto hoist the Nigerian flag on this territory and the change in
name of that localityfrom Jabaneto Abane by Nigerians. In l'inwith
this, Nigerians living in Jabane prevented a team sent hy the
Cameroon governrnentto build a hospital in that localit.."
24.176 (l} No date is given for any of the incidentsbeing referredto.
(2) Furthemore, no explanation is given as to why these matters concem the
responsibilityof the Nigerian State,as theyappear to haveinvolvedcivilians.
24.177 As regardsthe alleged "change inthe name" of "Jabane"toAbana by the Nigerian
l
citizensthere, it mustbe recalledthat this settlement hasalwaysbeen calledAbana,
and it is only inthe records of Cameroonianofficials(and only relativelyrecently)
that it has been referredtoas "Jabane".
l
24.178 These alleged incidents have not been adequately identified,or established by
sufficientevidence. Nor isit clear why Nigeria is thought to bear international
responsibilityfor what appear to be acts by civilians.cordingly,and quite apart
from the general considerationsreferredto above,particulariy in paragraph24.48
and 24.62; Nigeria denies that they give rise to any international responsibilityon
itpart.24.179 For the record, Nigeria also notes that the final page of the Ploie dated 23 June
1993 contains a Cameroonianproposal that Cameroonian law enforcement agents
should be asked "to avoid taking any action that could hm the interests of
Nigerian nationals within thatregion". This implicityrecognizesthat, previously,
such Cameroonianagentshad in fact been harmingthe interestsof the Nigerians.
22. Incident of 21 January1981
24.180 The next incident is referred to in paragraphs 6.66 to 6.70 of Cameroon's
Memonal. The heading there refers to "the abductionof Mr Simon Esabe, the
district chief of Idabato, and thersof his delegationon 21 January 1981at
Kombo Abedimo". Paragraph 6.67 states that onthat date:
"thechief of Idabato District, accompaniedby a poinspecterfour
marines, three soldiersand nvocivilians,hadundertaan inspection
tour of the fishingcornmunitieswithin hisadministrativeu..."
(emphasisadded)
24.181 Paragraph6.69 states that: 1
"Having reachedKomboAbedimo, the group found itself surrounded
by a score ["unevingtaine"]of heavilyanned Nigenan soldiers,who
had disembarkedfromfour motor pirogues. .." (emphasisadded)
24.182 A quotation in paragraph6.69, apparentlytakenfrom oneor other of the twonotes
referredto in paragraph6.66 statesthat: 1
"Our military were ordered to take no action and stay calmThe
Nigerian soldiers shouted 'Hands up!' and they complied. The
Nigerians thereupon succeeded in retrieving the weapons of the
Cameroonian marinesand soldies. Everyonein thegmup, including
the district chief, was stripped of his possessionsand harasçed. ... the man in charge of the Nigerian military, Lieutenant D. O.
Alonge, ordered al1membersof the publicpresent to disperse. Afifth
pirogue also carrying soldiersdrew alongside.
The Cameroonians were al1 put on to a motor pirogue for Ikang.
Before theyset off, Lieutenant D. O. Alongehinred[emphasisadded]
that his men would open fire upon the slightest response from the
Cameroonianmilitary.
The hostages al1spent the night of 21 to 22 January at Ikang police
post in Nigeria ...
They spent the nightof 22/23 January 1981at the amy camp but still
at Ikang.
On 23 January, they were al1taken blindfold in a military lorry to
Calabar ...
On 29 January 1981, they were handedover to the Carnermnian
Consul in Calabar .."
24.183 Pdragraph6.70 states that "the Nigerian militaryconiîscateda numberof weapons
and itemsof equipmentbelongingto the Cameroonian administrativeauthority". A
quotation in that paragraph, fromthe same note quotedin the previousparagraph,
adds that:
"Sums of money, tax slips in the possession of the District Chief,
together with many other personal effects, were forcibly taken from
them."
24.184 As indicated in the Memorial,these quotationsal1come hm a note appearing at
Annex MC 257. The document is dated 9 February 1981, but there isno clear
indicationof who the author is, and Cameroonalso failed toidentifythe author on
the Annex front-sheet. Additionally,no source is indicated for the information
containedin the note.
l
24.185 There isalso at least one part of the note which is not quoted by ~arneroon in the
text ofthe Memorial,but which is relevant. Precedingthe section quoted was a
I statement that the incidenttook place in "Ine-Ekoi" and not "KomboAbedimo"
(although the words "KomboAbediio" do appear in manuscript in the document,
above the words "Ine-Ekoi"). Carneroon cenainly considers these to be two
separate places - this is evident from the legend appearing on page 359 of Amex
OC 1 of Cameroon's Observationson Nigeria'sMiminas. Objections,by which
the two places are identifiedas separatelocationson the map extractappearing on
that page.
24.186 There is also a substantial discrepancyin the numbersof Nigerian soldiers alleged
by Cameroonto havebeen involved. Whereas theMemorialrefers to about20, the
note states that the four motorpirogues each carried more thanfSfeen soldiers,
suggestingut least 60 soldiers.
24.187 Although not quotedby Cameroon in thetextof the Memorial,AnnexMC 257 also
containsa second anonymousnote, dated 12February 1981. The note appears to
referta the same incident. However:
- the notestates that accordingto someof the allegedvictimsofthe abduction,the
Nigerian militarypatrol consistedof threeboarswhich weretransponing22 men
- not 60 soldiers;
- it adds that these boa& were "civilian" boats andthat the Nigenan patrol was
commandedby a person of "souche Camerounaise" - Cameroonianstock. The
identificationof this group of men as a patrol of theNigenan amed forces is
thus seriously called into question;
- the third paragraph of the note, relating to conditions experienced by the
abductees in Nigeria, begins with the phrase "If the source is tabe believed",
suggestingthat there is some doubt conceming the reliability of Cameroon's
sources of information. 24.188 In its Observationson Nigeria's F'reliminary Objections, Cameroon appears to
indicate at page 359 of Annex OC 1 that the abductiontook placeat Ine-Ikoi. At
page 365 of the Observations,~&eroon annexesan anonymoustelegraphicnote,
which appears to relate to the incident. Thenote statesthatreliable sources" had
revealed that the arrest took place in "Ine-Koi". The note also states that the
entourageincluded only one civilian,not two.
24.189 The fact that Carneroonhas not been able to provideany evidencethat it protested
abut this alleged matter even once during the 14 years prior to the fiIing of its
Memorialcasts doubt on the circumstancesof the occurrence. Moreover,it raises
a presumptionthat Cameroonthoughtthe incident was tao insubstantiata be worth
pursuing or was othenvise not one for whichNigeria bore any responsibility.
24.190 The matternav being complainedof allegedlytook place over 18years ago. Given
the absence of protest about it, any claim in respectoitis,for the reasons given
in paragraphs24.52 to24.54, nowbarred by lapse of tirne.
24.191 This alleged incident is thus stale. and supported oniy by mntradictory and
1
I inadequate evidence. Quiteapart from the general considerationsrefed toabove,
particularly in paragraphs 24.48 and 24.62, Nigeria deniesthat it gives nse toany
international responsibilityon its part.
24.192 Beforemoving to the next incident, note should be taken of a statement contained
in the last paragraphof the second noteappearing inAnnexMC 257:
"L'opinionpubliqueest en expectativequant aux mesures de réaction
que va prendre notre gouvernement à l'égard de tels actes de
provocation."415
415Thisuanslalesau:"Publicopinion isexpectingcounier-msm our govemmnt inthefacof such
acisofprovocati".24.193 It appears that this statementof Cameroonianpolicy mayhaveheen a precursor to
the fatal attack on 16 May 1981 -just over three months later-by Cameroon on
a Nigerian vessel on the Akpa Yafe, which flm past the settlement of Ine
IkoL416
23. Incident of 6 March 1990
24.194 The next alleged incident is referredto in paragmphs6.72 to6.74 of Cameroon's
Mernorial, and relates - according to the heading - to the "arrest of three
Cameroonian Policemen on 6 March 1990 at Jabane". Paragraph 6.72 of the
Mernonulstates that:
"On 6 March 1990,threeCameroonianpolicemenand their driverson
an officialmissionto Jabane in the BakassiPeninsulawerearrestedby
the Nigerian navy and abducted to Nigeria, initiallyto Calabar and
then to Lagos, the capital" (emphasis added).
24.195 In paragraph 6.73, the policemen'snames are given as Ndi Abang, Che Ephraim
and Martin Fokoaom, and that of the pilot of the National Security patrol boat
carrying them is given as Daniel Mesembe Mobela.
24.196 Paragraph6.74 states that:
"According to the report of the officials abducted, they were
intercepted at sea off Jabane, in Cameroonian territorial waters, hy
severalpirogues carrying a score or so of Nigenan military with their
assault riflespointed at the Cameroonians. The captiveCameroonian
officials werefirst taken to Calabar in Nigeria and then mnsferred to
Lagos, where they suffered ill-treatment (being underfed, and
repeatedly harassed). On 2 May 1990 ...they were released as a
result of negotiations conductedby the Embassy of Cameroon in
Lagos. They returnedto Idabatoin poor health. Nigeriafailedto give
The May 1981 incideisreferredIo abatparas24.65ta24.67. them back the ammunition of the pistol that they had aboard their
boat."
24.197 AlthoughCameroon has providedcertain details of this incident:
(1 the precise positionof the allegedarrest has notben identified;it is merely
said to have occurred "off Jabane" in what Cameroon clairns were
"Cameroonian territorial waters";and
(2) although paragraph6.72 suggestthat there were at least two "drivers" with
the three policemen, Cameroononly names one "pilot" in paragraph 6.73.
24.198 On this occasion, Cameroonhas referredto sevendifferentdocuments, apparently
in suppon of its allegations. Accordingto the reference appearing at the endof
paragraph 6.73, these documents appear in six different annexes, MC 296, MC
297. and MC 299 to MC 302.
24.199 Annex MC 296 contains what appear to be fiveseparatedocuments, althoughtwo
of them are copies of two of the other documents. The only one of these
documentsreferredto in theMemorialwouldseem tobe that set out on page2494,
which appears to be a telex of 20 March 1990 from the Minister of Territorial
Administrationto the Ministerof ExternalRelations:this is also theonly document
referred to on the front sheet of the Annex. This documentrefers to the alleged
incident, statingthat the arrest occurred inAbana,but then Statesthat the Nigerian
Navyhad been on patrol in Cameroon'sterritorial waters.The note also mentions
that the Cameroonian policeofficiais were in uniform and that the boat theywere
in wasalso arrested. No source is given for the information containedin the note.
24.200 One of the other documents in Annex MC 296, at pages 2495 and 2496, is a
telegraphicmessage sentby theGeneral Delegateto the NationalSecurity Service.
This messagesuggeststhat the arrest took place on 8 March1990.24.201 Annex MC 297 contains a note dated 18 April 1990 from the "Chief of Private
President's Defence Staff to the. Minister of Temtorial Administration. This
document merely records a request by the Govemor of South West Province to
make contact with authorities inCalabar for the purposes of having broughtback
to Cameroon the personsinterceptedby NigerianRiver Policeon 8March 1990.
24.202 Annex MC 299 consists of an undated note fmm the Cameroonian Minister of
Extemal Relationsto the (presumablyCameroonian)DelegateGeneralfor National
Security. Althoughthe front-sheetof the Amex claimsthat thenote is dated2 May
1990, this date only appears in the body of the notThe fact that the note refers
to an event which was meant to havealready takenplace on 3 May 1990 suggests
that it waswritten afterthat date. The note retorits author and recipienthaving
been informed - on 20 March that year by "MINAT" - of the arrest by the
"Nigerian Marine"of threeCameroonian policemen, adriver and their patrol boat.
The note also States that the writer has been informed of the release of those
arrested and the boat by the Nigerianauthoritieson 2 May 1990.
24.203 Amex MC 300 consists of five pages which are difficultto read, and illegible in
parts. It is also very difficultto determine which pages are the continuationsof
other pages (if any), although two are written in English, and the other three in
French. Inresponseto the illegibilityof the Amex havingheen raise atpage 171
of Nigeria'sPreliminatyObjections,Cameroonat page 574 of its Observationson
Nigeria's Preliminaty Objections indicated thata fresh copy of the amexed
document had been produced with theObservations. Indeed, better copies of the
fivepages of the annex were reproduced in thesame order at pages 661 to 666 of
the Observations. However, in between these pages, at page 665 of the
Observations,was a new page which did not form a part of Annex MC 300. The
unexplainedadditionof thispagedoesnot maketheorder of the Annexmucheasier
tocomprehend. 24.204 From the six-page version of the annex appearing in the Observations, it would
seem that parts of at least three and possiblyfour different documentshave been
included. The firstpage is a document inFrench, which is dated 7 May 1990, yet
appears to bear the heading "Rapportdu 6/05/90".417 The document appears to
have been written by one of the four persons referred to in paragraph 6.73 of the
Memorial (see paragraph24.195 above),but there is no indicationas to whichone
since it is anonymous. It explainsthat on 6 March 1990,the fourof them hadbeen
ordered by the "Head of Post" to go to "Idabato II" (WestAtabong; see Fig. 24.5)
and bring back a pirogue whichhad had an accidentat sea on 4 March 1990. No
I
futher details are given conceming the identity of the pirogue or thenanire of its
accident. The document states thatthe four had been informedthat the vessel had
left "in the direction of Nigeria". They set off in pursuitwith a whole range of
weapons. They found thevesselat "Jabana[sic] ".
24.205 Just when escortingthe pirogue to the "PolicePost", a (presumably different)boat
met them at 0730h. The document states that the four Cameroonians then saw
"some Nigerian sailors in Cameroonian territory"; it is not clear, butpresumably
they were in the other boat. The Camerooniansinformedthem that they were in
Cameroonian territorial waters. Whilst they were ta- to them, two more of
"theirpirogues"approached with morethan 18peoplewith heavyarms;threewere
civilian pilots, the rest were sailors. "They began by threatening [the
Cameroonians]", pointing their weapons at them. The author records a short
conversation which took place,in which the Nigerianstold the Camemnians that
"the essential thing from their point of view was that they were taking [the
Cameroonians]to see their chief, who mightperhapshave tolet [theCameroonians]
go". The documentthen reads "Wearrived at Oron beside their largevesselwhich
waspatrollingat seau. The documentgoes on to givedetailsof the Cameroonians'
transferto Lagos viacalabar, which was completedon 9 March 1990.
'" Thedate idifficuuiread: it coperhapsbe"6103190".24.206 The next twopages of Annex MC 300, which are the onlytwo written in English,
appear to constitute a separate document. This documentappears tobe an account
of the incidenby Che Ephraim Ful, dated 8 May 1990. It refers tothe mission to
"escort" the boat which was involved inan accident on 4 March 1990, yet again
without givingany further details of this boat or the accident. The document states
that when the Cameroonians were "nearer to Jabana", they saw the boat. The
author then records: "as we went closer, we encounter [sic] three Ayingboats with
Nigeria [sic]Navy" -suggestingthat they met the Nigerians beforethey recovered
the boat.
24.207 Some discussion followed, during which the Nigerianstold the Cameroonians that
they were going to take them to Oron, There was then some argument. It was
only after this that "[the Nigerians] eventuallystartedarming their guns and pointed
at [the Cameroonians] directly". The author states that "wefollowedthem for we
knew that we were in ourterritoryu.
24.208 The document then details the Cameroonians' transfer to Lagos via Oron and
Calabar. It records that in Lagos they were interrogated. The only pan of the
document conceming the food received in Lagos states that in the first cell they
were held in at Lagos "Food was alwayssent to us thmugh the window". Later,
the document details the Cameroonians' release anrem to Cameroon.
24.209 The next two pages of the AM~Xappear to be another account of the incident, 1
written on 7 May 1990 by Ndi Abang. This account, which is similar in many
respectsto the account appearing on the first page, statesthat thenians left
"Idabato II" in pursuit of the pirogue which they were looking for, which had
departed "in the direction of Nigeria". They found it at "Jabana". They met
"Nigeriansailors" on board another pirogue as they were escorting it to the "Police
Post". During discussions which followed,two further Ni~erian pirogues arrived,
and "they began tothreaten [the Cameroonians]with theiruns ..they bad loaded
their rifles and pointed them" at theCameroonians The author then states that "theFi yre 24.5
O ~aliienoiwnkmommtmionedinten
Ih,K* "i'"gniinnamoD.~Pnl.m.i
I!dUirr*,"mon "am iorrpnlznxn
0.n ?mir.igrnanam.lorratrloilvrP
LinlndRinn.r,.M"ofa moldion
,:,,>>ID
,--~.t."eM,
BONNY
FORILLUSTRAlIVC PUKFOSES ONLY discussionsled usintoaclash, whilststill at sea". Hethen "calmed[his]mennand
they "were obligedto follow[the Nigerians]as far as Oron".
24.210 The accountthendetailsthe Cameroonians'transfertoLagosvia Calabar, recording
that some interrogationtookplace. It notes, unlikethe other accountsin the annex,
that overthe nightof 21 April 1990they did not eat for 24 houn, as a result of an
. ' upnsing in Lagos. It is also the only account which statesthat the Cameroonians
"suffered...from malnutrition". It also recordsthat when they were released on
2 May 1990, the representativeof the CameroonianAmbassador mentioned how
many Nigerian soldiers and police had been arrested in Camermn and released
without spendinga week in custody.
24.211 The last page of the Annex is an undatedaccountof the incident, signedby Fokou
Martin. Bowever,this account appearsto be incompiete,as itbeginsbyrecounting
the arriva1of the Camerooniansin Lagos. It tefers to the interrogationswhichtook
place there. Conceniing the food inLagos, theauthor merely statesthat the meals
had been "mediocre", and that the Cameroonianshad to eat with theirhands.
24.212 The firstpageof AnnexMC 301 is "NoteNo. 43/DGSN/1G.Zn. This noteis dated
11 May 1990. It refers to an enclosure, descnbed asa radio message dated7 May
1990 from the Provincial Service of the South West National Securiry Offic ie
Buea. This seems to be a reference to the document which appears on the
followingpage, although the author is not evidenton the face of that document.
That documentrefersto the releaseof the three officerson 2 May 19W, and states
that the "parties in questionsufferingbad treatment areal1ilIn. No source isgiven
for this information.
24.213 A Note of 14 May 1990 from "the Chief of Provincial Service of the National
Security" appears at Annex MC 302. It clairns to transmit the reports of the
author's "colleagues"interceptedby a Nigerianpatrol, and indicatesthat there are
fiveenclosures. However,none of these enclosuresappear in Annex MC 302 -the remainderof the Annexconsistsof twonotes, both of whichare datedafer 14May
1990.
24.214 The seventhdocument referred to in paragraph6.73 of Cameroon's Mernorialis a
note of 27 April 1990. This does not appear in any of the Annexes referred toby
Cameroon in paragraph6.73. However,by reference to the date supplied on its
cover-sheet, it would appear that the document at Annex MC 298 is the one
referred to. This is a telegraphicmessage which- according to the front sheet of
the Annex -is dated 27 April 1990and was sent by the Cameroonian Embassyin
Lagos. However,it is evident from the first few lines of text that the message is
in fact dated 2May 1990. It refers to a decision by the Nigerian govemmentto
release the four Cameroonians on that day, and gives details ofthe "ceremony"
which took place upon their release, which was attendedby representativesof the
Nigerian and Camerooniangovernments. The message statesthat inmsponse to a
speech by a Nigerian representative theCameroonian representatives drew the
attentionof the Nigerianauthoritiesto the fact thatgetian policemen who make
incursions intoCameroonian waters have o€tenbeen arrestedand released swiftly
afterwardswithout such cases being made public by the Cameroonian authorities.
24.215 The note also states that a Nigerian representativeoinred out that the detained
parties were "visibly in good condition". The note ends abruptiy mid-sentence,
suggestingthat further pages are missingfrom the annex.
24.216 Nigeria also notes a further referencein Cameroon'spleadings towhat might be
intended to be this incident, since there are strong apparent sirnilarilies,although
the alleged date of the incident is different by 3% weeks, and the supporting
documentationis insufficient. In its ~bse~ations, Cameroon indicatesat page 372
of Annex OC 1 that on 2 April 1990 the Nigerian navy arrested at Abana a
Cameroonian patrol, consisting of three policemen, a vesse1and the pilot ofthe
vesse]. At page 374 is a Note dated 2 April.1990, from the Ministry of Foreign
AffairsofCameroon and addressedto the Nigerian Embassyin Yaoundé. Itrefers to the incident, stating thatthe arrests had been carried o"arJABENE [sic]"by
the Nigerian navypatrollingin Cameroonianterritorialwuters. However,the date
of the incident isnot indicated. The sourceof the information isalso not apparent
from the note.
I 24.217 None of the documentsa~exed to Cameroon'sMernoriaiin allegedsupport of the
incident said to have taken place on 6 March 1990 gives any details of exactly
where "off Jabane" the arrest took place. Without supplyingan exactposition for
the incident, Cameroonmerely assertsthat the incidenttookplace in "Cameroonian
territorial waters". The watersoff Abana are, however,the waters of the Calabar
estuary. Even assuming (but which Nigeria denies) that Carneroon did have title
toBakassiat the timeof this incident,Cameroonacknowledgesthat the Wter part
of the Calabar estuary is, and was at the relevant time, under the territorial
sovereigntyof Nigeria. Thus, evenon Cameroon's argument,this alleged incident
may havetaken place in Nigerianterritorial waters. In these circumstances(and,
accordingto Nigeria, in anyevent) thearrest of armed Carnemnian police officers
in Nigerian territorial waters would have been a legitimate exercise of Nigeria's
temtorial sovereignty andNigeria's right to self-defence.
24.218 In this regard it is noteworthythat the documents at Annex MC 300 indicatethat
the policemenhad beenpursuinga vesse1whichhad been heading "in the direction
of Nigeria".
24.219 Additionally,the telexdated 27 April 1990which is amexed at MC 298 stafesthat
at the "ceremony" to mark the release of the policemen, the Cameroonianparty
drewthe attentionof the Nigerian authoritiesto the factthat:
"Nigerian policeman who make incursions into Cameroonian waters
have often been arrested and released swiftlyafterwardswithout such
cases being made public by the Cameroonian auchorities,hut treated
and stoppedat a local level." This passage indicatesthree things. First of all, it showsthat Cameroon considers
that arrests such as the one being allegedshouldnot be made publi-it is therefore
hard to understand why Cameroon chooses to make such an allegationthe subject
of a claim some years later against Nigeria at the International Court of Justice.
Secondly, the statement implies, a contrario, that this was a case where
Camerooniansoldierswerearrested inNigerianwaters,sinceocherwisethere would
have been no point in the comparisondrawn (contemporaneously, by itCameroon
officia1involved)with the arrests of Nigerians inCameroon waters. Finally, the
statement clearly impliesthat "arrests"by one side of the other'spersomel are not
uncommon, and are dealt with at local level. Indeed, that wasthe point of the
"ceremony " at which the statementwas made.
24.220 The only documents producedby Carneroon in which thesource of informationis
evenreasonablyclear are those appearingin AnnexMC 300. However,eventhese
documents, whichcontainthe accountsof the arrestcdCameroonians,areunreliable
in material respects, and fail to support pans of Cameroon's ailegation. In
particular:
- they fail to give an indication of where exactly the Cameroonians were
intempted;
- they fail to give details conceming the precise natureof the original "mission"
to recovera vessel;
- two of the accounts suggestthat the Cameroonians were met by Nigerians after
the vessel was recovered; however, that of Che Ephrairn FUIstates that this
occurred beforethe vesselwas recovered;
- two of the accounts statethat two of the Nigenan boats arrived some time after
the first one, whereupon their occupantsbegan hatening the Cameroonians
and pointingweaponsat them; however,the accountof CheEphrairn Fu1states that after al1 three boats were encountered, there was some discussion, then
some argument, and oniy then did the Nigeriansload and point their weapns;
- there is no mention in the documents of any "harassment" by the Nigerian
authorities in Lagos;
- the documentsprovidedifferentaccountsof the way in which the Carnemonians
were fed in Lagos; and oniyone of the accountssuggeststhat theysufïeredfrom
"malnutrition".
24.221 Cameroon'sevidencegives rise to further inconsistencies. Forexample:
- The earliest document annexed by Cameroon which relates to this alleged
incident is dated20 March 1990 - two weeksafter the incident is said to have
occurred. In these circumstances, the "MENTION" at the head of that note
(appearingat page2494of Amex MC 296)suggestingthatthe message is "very
urgent" is difficultto comprehend.
- In two of the notes appearing in Annex MC 296, the incident is said 10 have
occurred on 8 March 1990, not 6 March 1990. Thatdate is alsoreferredto in
the noteappearingat Amex MC 297. At page 372of AnnexOC 1, the date is
given as 2 April 1990.
- Although the Memorial suggests at paragraph 6.72 that the Carneroonian
policemenwere arrested by the Nigerian Navy,the notedated 18 April 1990at
Amex MC 297 suggests that they were interceptedby "a detachment of the
Nigerian river police".
24.222 Finally, the fact that this incident is not listed in the Schedules appearing at
Annexes MC 362 and MC 363 suggests that Camemon does not consider this
incidentto be either a "boundaryincident" or a "violationof Cameroon territory".24.223 Having regard to the date of the incident, its isolated character, the discrepancies
between the various accounts provided by Cameroon, the limited and fragmentary
evidence available,the fact that the incident was evidentlyresolved (as other similar
incidents had been) by the return of the soldiers to the other Party, and to the fact
that, even on the most serious version of the allegations made, no serious or long-
term injury was suffered by the detainees, it is submitted that this incident hardly
rises to the level of a significantcause of action involvingSute responsibility. But
there is an evenmore fundamentalproblem, which is that Carneroon has not shown
even so much, since it has produced no evidence that the arrest occurred in
Cameroon waters - even on the assumption of the legal status of Bakassi made by
Cameroon. In the absence of such evidence, there is no State responsibility claim
at all. For al1 these reasons, and quite apart from the general considerations
referred to above, particularly in paragraphs 24.48 and 24.62, Nigeria dcnies that
the incident gaverise to international responsibility onits pan. It was in anyevent
an incident which, by Carneroon's ownaccount, came to a satisfactoryend with the
release of the fourpersons concerned; Cameroon, neither then nor later, took any
steps to reserve any rights which it might have had to pursue further any
outstanding questions of international responsibility which m'ighthave existed,
thereby demonstrating that it was treating the matter as closed.
24. Incident of April 1990
24.224 The next alleged incident is referred to in paragraph 6.75 of Camemon's Mernorial.
Under a heading that reads "The abduction of the Cameroonian Sub-Prefect of
Kombo Abedimo in April 199OW he paragraph refers ro a note which mentions
that:
"...in April 1990, the Sub-Prefectof KomboAbedimo, in the Bakassi
Peninsula, was abducted with the rest of his gmup on the occasion of
an administrdtive tour ...the Nigerian military responsible for the aggression tortured the Cameroonians before releasing them, a few
dayslater."
24.225 Cameroonhas not indicatedeither a precise date or a location for this incident.
24.226 The note relied upon by Cameroon in support of this aliegationappears at Annex
MC 362. This note was also referred to in paragraph6.30 of the Mernorial,and
was analysedat paragraphs24.72 to 24.74 above. As statedthere, this note dates
from either on or after 31 May 1994. The note states that its Amex 1surnmarises
"the boundary incidents" causedby Nigeria. Whatseems tok a reference to the
present incident appears on the sixth row of the schedule at Annex 1. The date
indicatedappearsto be April 1990,althoughpart of the date iscutoff. The three-
mw description of the incident is similar to that given in paragraph 6.75 of the
Mernorial. There is however one significant difference: although the schedule
indicatesthatNigerianmilitarypersonnelwereresponsible fortheabduction,it does
not indicatewho was responsible forthe tornire which allegedlyfookplace.
24.227 Conceming the evidence reliedupon:
1
I - the single document reliedupon was compiled on or after 31 May 1994, over
four years after the alleged incident;
- additionally, the schedule referring to the incident gives no sources for the
informationit contains;
- no indicationis given as to various importantelements in this allegation. such
as the numbers of Camerooniansinvolved,the numbers of "Nigerian military"
allegedly effectingthe abduction, the circumstancesof the alleged abduction,
where the abducted personswere taken and subsequentlyheld, the nature of the
torture to whichthey were allegedly subjected, and the date and.circumstances
of theireventualrelease; - the noteat AnnexMC 362seemsto indicatethat Annex1of the note is intended
as a summary of al1 the incidents which were caused Ly Nigeria over the
boundary (referring asit does to "theboundary incidents"). However,several I
incidentshavebeen allegedby Cameroon in itçMernorial,which do not appear
in the schedule at Annex 1:this casts further doubt on the reliability of the
schedule.
24.228 The fact that Cameroon has not been able toprovideany evidence that itprotested 1
about this alleged matter at any time prior to the filing of its Mernorialcreates
doubts about the eventsalleged, and raises a presumptionthat Carneroon regarded
it as not important enough topursue or as adequatelydealt with at the locallevel,
or as not othenvise one for which Nigeria bore any responsibility.
24.229 By failing to provide sufficient details as to the precise da*, lmation and
circumstances of the alleged abduction, Cameroon has failed to substantiate its
claim that Nigeriabears internationalresponsibilityfor thisincident. Accordingly,
and quite apart from the general considerationsreferred to abwe, paxticularlyin
paragraphs24.48 and 24.62, Nigeria denies that it gives nse to any international
responsibilityon its part.
25. incident of 27 November 1980
24.230 The next incident is referredto in paragraph6.76 of Camertxin'sMernorial. This
paragraph merely quotes from a document dated 5 December 1980 which States
that:
"On 27 November 1980, once again, eight Nigerian soldiers in
gendarmerie-typecombat uniforrnand armed, burst intothe villageof
Archibong. Not only did they gather the people together and hold working
sessions, but they also ventured to harass them and went after a
Cameroonian gamekeeper. In under two months, this isthe second
such act committedon our soi1by armed Nigerianelements .."
24.231 The document referredto appears at AnnexMC 256. It wasapparently sentby an
anonymousauthor at the Ministry of Armed Forcesto the InspectorGeneral of the
Amies "charged withCO-ordination". However,there is no indication as to the
source of the informationcontained in the document.
24.232 The Iack of evidence of any protest having been made by Cameroon to Nigeria
during the 15 years prior to the filing of the Memurialraises doubts about its
occurrence. It also raises a presurnption that Camemon regarded it as too
insubstantialto pursue or as adequately dealt with at the local level, or ht the
incidentwasone for whichCameroondoes not consider Nigeria bears international
responsibility. The strength of this presumptionis increased bythe fact that the
schedulesappearing at AnnexesMC 362 and MC 363 do not refer to this incident
at all.
24.233 The incidentnowbeing complainedof allegedlytook placenearly twentyyearsago
(Piovember1980). Given the absence of protest about it,any claim in respect of
itis, for the reasons given in paragraphs24.52 to 24.54, now barred by Iapseof
the.
24.234 Apart from thus being stale, the incidentitself is put forvard by~ameroon without
any significantsupporting detail or evidence (as regards, for example, the nature
of the "workingsessions", the kindof "harassment"to whichthe Nigerian soldiers
"ventured" to subject the people concerned (and the use of the term "ventured"
suggests that the attempt was unsuccessful), and the circumstances involved in
"going after" the Cameroonian gamekeeper). Quite apan from the general
considerations referred to above, particularly in paragraphs24.48 and 24.62, Nigeria denies that the incident allegedby Cameroon10any international
responsibility on Nigeria's part.
26. AdditionalIncidents refertoinParagraphs6.1;!and6.136ofthe Mernorial 1
Paragraph6.126
~
24.235 Paragraphs 6.126 and 6.136 of Cameroon's Mernoriala1sorefer, vety briefly, to
six or seven incidents not referred to elsewhere in tlie Memoriai. Those referred
1
to in paragraph 6.126 relate to I
(1) "themurder of the French skipper of a byNigerian soldies in 1968";
I
(2) "the intrusion of Nigerian police eletlimajor Cameroonian fishing
community of Abana" on 11 March 1984;and.
(3) "Nigerian troops [which] patrolled as far as UieRio del Rey"on 19 March
1984.
24.236 Regard'ingincident (i), Cameroon'sMemonal does not refer to any documentation
in support of this allegation. Cameroon has failed toprovide any information
concerning the exact date or location of the ianiexplanation as to why
this incident is supposed to involve the international responsibility of Nigeria
towardsCameroon.
24.237 For incidents(ii) and (iii), Cameroon relies on the s&ie documentwhich isannexed
to its Mernorialat MC 269, being a report dated 21.ApriItisnot clear
€romthe copy appearing in the Mernorialwho the aiithor of the document is, and
Cameroon fails to identify the author in ttheMemoriaIand on the front- sheet ofthe Annex. No source is givenfor the informationcontainedin the report.
Moreover, the note merely Statesthat incident (ii) was carried out by Nigerian
"Forces of Oder" - without specifying which forces these were; and the
description of both incidents in the report is no more detailed than the brief
description in the Mernorial.
Paragraph 6.136
24.238 Paragraph 6.136 refers, for the first tiinethe Mernoriai,to "unlawfulNigerian
patrolling"in Cameroonian territorybeing noted in (i) March 1983, (ii) Octoberto
December 1992 and (iii) the spring and summer of 1993. No paniculars of the
allegedcircumstancesare given and noevidenceis referd to, nor are locationsor
precise dates given.
24.239 As regardsthis gmup of alleged incidents referrtoin paragraphs6.126 and 6.136
of Cameroon'sMernorial,four of them are said to havetaken place in 1968, 1983
and 1984(twoincidents), thatis at variousdates between31 and 15years ago.The
lack of evidenceof any protest having been made by Camemn toNigeria during
those periods casts serious doubts over the circumstances of the occurrences in
question, and raises a strong presumption either that Cameroonregarded them as
unimportantor as adequatelydealt with at the locallevel,or that the incidentswere
ones for which Cameroon did not consider that Nigeria bore international
responsibility.
I 24.240 Giwn the absenceof protestabout anyof those four incidents,anyclairn in respect
I
of them is, for the reasonsgiven in paragraphs24.52 to 24.54, nowbarredby lapse
24241 In addition to some of those incidentsbeing stale, aof them are put forward by
Cameroonin themost cursorymanner, with no seriousattempt toexplainwhatwas allegedto haveoccurred, what circumstanceslead to ;conclusionrhatNigeriabears
international responsibilitytowardsCameroon, or v~hat(if any) material damage
was sufferedby Cameroon. Withoutany significantsupporthg detail or evidence,
and given the passage of time, Cameroon has failtd to present any case which
Nigeria is called upon to answer. Quite apart frcm the general considerations
referred toabove, particularly in paragraphs24.48 and 24.62, Nigeria denies that
any of the allegedincidentsgives rise to any international responsibilityon itspart.
K. Alleeedincidentsin theLakeChadAreareferred to ini2ameroon's AuvIicationsand
Mernorial
27. GeneralandUnspecific Alleged Incident in the LakeChad Area
24.242 Allegedincidents inthe Lake Chad area whichare said to giverise toimrnational
responsibilityonthe part of Nigeria have to be consideredagainstthe hackground
set out in ParII of this Counter-Mernorial.For th'r: easons there given, and as
noted abovein paragraph24.62, Nigeriahas sovereig~tywer many of the locations
referredto by Cameroon, which it occupiesand administersas of right.
24.243 Cameroon's allegationsof intemationallywrongfulconductbyNigeria in the Lake
Chad area were made in Cameroon'sAdditionalApplicationof 6 June 1994. The
referencesin thatApplicationto allegedborder incidentswerecollected together in
Part B of Annex 84 to Nigeria's PrelirninaryOl>jections:that Annex is for
convenienceattachedto this Counter-Mernoriaa ls NCI-M351. Ali those references
are vagueand unspecificas to date, circumstancesor location(otherthan anexpress
or implied connection with the Lake Chad area). There is, in Cameroon's
AdditionalApplication, also one generalised reference in paragraph 17(c) to "the
Federal Republicof Nigeria ...occupying, with the supportof itssecurity forces,
parcels of Cameroonianterritory in the area of LakeChad".24.244 In Chapter 6 of its MemorialCameroonpurported to give more details about these
incidents in the Lake Chad area. This additional information is,however,very
limited and is in places contradictory. Verylittle in way of preciçefactçabout
alleged incidents has been provided,including such essential elements in relation
to particular alleged incidentsas the dates on which they occurred, the identityof
the locationssaid to havebeen involved,the exactcircumstancessunounding them,
an assessment of their seriousness and the resultant matenal damage (if any)
sufferedby Cameroon, and thebasis on which Nigeria is said to bear international
responsibility for what was alleged to have occurred. Several of the Iocations
referred to in the AdditionalApplicationare not even referredto in the Memorial.
24.245 Generally, the physicaland legal situation in Lake Chad is explained in PaIIof
this Counter-Memorial.For the reasonsthere set out, Nigeria has swexeigntyover
rnanyof the locationsreferredto by Cameroon. In presentingclaims that Nigeria
bears international responsibilityin relation to events said to havtaken place
somewhere in the Lake Chad area, Cameroon cannot simply put forward
generalised assertions based on unproved (and sornetimesunstated) assumptions.
Carneroonis also under an obligationto be specificas tothe factçofeach particular
alleged event:this Cameroonhas demonstrablyfailedto do.
24.246 In these circumstances, Cameroon has failed, in relation to incidents said tohave
occurred in the Lake Chad area, to present any case which Nigeriais calld upon
to answer:as Applicant, Cameroonhas failedto satisfythe burden whichrests upon
it of making good the claims which it has advanced, and in consequence those
claims haveto be rejected.
28. Incident of 13May 1989
24.247 Only one of the incidentsallegedto haveoccurred inthe Lake Chad area has been
put forwardby Cameroon with at least a colourable degree of panicularity, such that Nigeria is in a position to examineit further. 'Thisis the alleged incidentof
13 May 1989, referredto in paragraph6.88 of Cami:roon'sMemorial. According
to its heading, the paragraph relates to "The abduction and detention of
Cameroonian authoritiesand citizens in the region by Nigerian armedforces".
24.248 However,paragraph6.88 particularises only a singleincident, namely:
"... the arrest and confiscation, on 13May 1989, of a Cameroon
fisheries boat at Blangoua, LakeChad, by Nigerian militaryn.
24.249 The Memorialstates thatthis incidentis mentionedin "the above-mentionedreport
of the Army Chief of Staff",but no cross-referenceto a paragrapb or annex is
given. Pan 3 of the Chapter only refers to one report Iothe Chief of Staff,in
paragraph 6.81. However,Cameroon has not prw:ided a reference in paragraph
6.81 to any of the Memorialannexes.
24.250 However,it may be that Amex MC 362, mentional in paragraph 6.75, is being
referredto. The fifthrowof the scheduleappearing at Annex1of that noteappears
to refer tothe incident, givingts date merely as "May 1989". The inadequacies
of this Amex are demonstratedabovein paragraphs24.72 to24.74.
24.251 Apparentlycross-referringto the same incident, paragraph 6.138 of the Memorial
states that the incident took place on 13 May 1987. This contradictsthe details
given in paragraph6.88 of the Memorial.
24.252 The incident is apparently also referred to in Carneri~on'sObservarions(at p. 209
of Annex OC l), where the event is described as an incursion by the Nigerian
police into the fishermen's encampment at Blamm and the illegal and irregular
seinire of a Cameroonianfishingvesse1at Blangoua. The map onpage 209, whilst
indicatingthe position of Blangoua,does not-indicab:the location of Blaram, and
Nigeria is not familiar with any place bearing that name. In support of its assertion, Cameroon annexes a document at page 211. The document is a Note
dated 12June 1989from the CameroonianMinistryof External Relationsaddressed
to the Nigerian Embassy in Yaoundé. The Note states that on 13 May 1989 at
Blamm, locatedberneen Blangoua and Kofia,Nigerianpolice seizeda vesselwhich
operatedfrorn the Blangouafishingpost. The vesseland its crew were then taken
to "Dakak", which is presumably a misspellingof "Darak". The Note does not
accuse the Nigerians of having made an incursion, makes no reference to any
incidentshavingtaken place in Blangoua, and lodges no protest (or reservation of
rights) about theatter. No sources are given for the informarioncontained in the
document.
24.253 In respect of the evidence adducedby Cameroon:
(1) the two documents invokedby Cameroon in support of itsallegations bear
virtually no evidential value whatsoever,since neither Camemn nor the
documents specifythe source of the informationcontained withinhem;
(2) the document appearingin the Observationsdoes not support the alIegation;
indeed, regardingtwo material facts, it contmdictsit:
- the Note does not state thatthere was an "incursion";
- it statesthat the incidenttookplace not atBlangoua,butat "Elaramu,the
precise locationof which has not been specifiedby Cameroon;
- it claimsthat the incidentwascanied out byNigerianpoiice, notNigerian
military.
24.254 Nigeria also notes that for many years now, Blangoua has been the base within
Cameroonof the Joint Security patrolofthe LakeChadBasinCommission(se, for
example,the Reportof the meetingof the LCBCexpertson Securityheldin August 1985 (NC-M 352), and a report of the meeting he:ldon 13 September 1994 in
connectionwithSecurityin the Lake Chad Basin(NCi-M353)). Thus, the presence
of members of the Nigerian military in Blangouashould not have been a surprise
to Cameroon.
24.255 It is also evident fromthe mapappearingon page20')of Cameroon'sObservations
that this incident isalleged to have occurred in cl'sseproximity to Cameroon's
border with Chad,and nowherenear Nigeria.
24.256 This alleged incidenthas not been adequately establishedby sufficientevidence.
The facts of the incident are unclear, Cameroon's supporting evidence is
contradicfory,and Cameroon'sdiplomaticcommunicationabout the matter did not
constitute any protest or even reservationof rights. Quite apan from the general
considerations referred to above, particularly in ~iaragmphs24.48 and 24.62,
Nigeria denies that Cameroon has establishedany basis for attributing to Nigeria
any internationalrespomibiliiy arising out of the allegedincident.
L. LandBoundarv Incidents referret do in Cameroon'sAi?uZicationa sndMernorial
29. UnspecificAllegedIncidentsin Cameroon'sAddin',~na AZpplication
24.257 In paragraph 6 of itsAdditionalApplication,Cameroonrefers to an:
"illegal and massivepresence of Nigerian nalionals which has been
observed invariousother parts of the territory ofCameroon along the
boundarybetweenthe twocountries, and morel~anicularlyin Baha ..,
Kontcha ..,Nwa ...and Akwaya ..."
24.258 These are the only referencesin either of Cameroon'stwoApplicationstoincidents
which haveallegedlytaken place outsidethe BakassiPeninsulaand the Lake Chad
area, and thereis no reference M State responsibilitin respect of sucb incidents in the "DecisionsRequested"by Cameroon in either Appli~ation.~'~The facts set
out in Cameroon's AdditionalApplicationare manifestly insufficientto foundany
international responsibilityon the part of Nigeria. Thus, for example:
(1) no detailsare given as tothe dates of this allegedNigenan "presence"in the
places referredto;
neither the nature of that "presence" nor its surroundingcircumstancesare
(2)
described; and
(3) the "presence"is saidonly tobe of Nigerian "nationals",whichof itselfdoes
not establish any international responsibilityon the part of Nigeria.
Moreover,while Cameroon is entitled subsequently,in particular in its Memorial,
to adduce further informationabout incidents referred to in summary terms in the
Additional Application, it is notable that "Baha" is not referred to at al1 in
Cameroon'sMemorial.
24.259 Cameroonhas not, by the terms of itsAdditionalApplication,put forward any case
in relation to the four localities referred to in paragraph 6 of its Additional
I Applicationwhich Nigeriais called upon to answer. Nor has Cameroon in either
of its Applicationsasked for the Court to pronounce judgment in respect of any
incidentsoutside of the BakassiPeninsulaand the Lake Chad area. Althoughit is
thereforeuncertain to whatextentsuch incidentsare withinthe scope of the present
case Nigeria, whilst reserving its rights in that respect, will now take the
oppominity (in Sections L and M below) to consider such incidents which have
been subsequentlyallegedby Cameroon.
'la
Allhuughgnragraph17(e)oftheAddilionulApplicorionreftnNigeria'sresponsibilfor"internationally
unlawfulacc;".ilis clear frothecontextthat lhis isrcfcrcnccuimatfersreferrem previouslin
paragraph17. whichmanerssolelyconcernedtheLakeChadma. 30. The Occupation of Tipsan by Nigeria
24.260 Paragraphs6.91 to 6.93 of Cameroon'sMernorialallegesthat:
"Nigeria ...occupies a part of Cameroonian territory near Kontcha,
Faro and Deo Division in Adamaoua Provh:e, in the centre of the
country. ...the Cameroon-Nigeriafrontier atE~ntchahasbeenshifted
to Typsan by the Nigerian anny, which has established a border
control post there ...the real frontier oii the other hand, as
materialized by stones left by the Germans, lies several miles to the
Westof Kontcha."
24.261 Cameroon relies on two documents in supportof its contentions. These appear at
Annexes MC 347 and 353, both of which are datt:d in 1994. Annex MC 347
containsa radiomessage whichrefersto a Nigerianpolice stationat "qpsan". The
document appearing at Annex MC 353 is a note da.ted24 March 1994from the
Govemor of Adamaoua Province to the Deputy Ptime Minister responsible for
Territorial Administration. Cameroonquotes that document at pamgmph 6.94 as
follows:
"1haveto report to you on the constructionby Nigeria in 1994of an
emigration and immigration police post6.5 km inside Cameroonian
territory in the Typsan locality of the villagr:of Kontcha, where a
group of thirty Nigeriansunder the command of a Nigerian traditional
chief has settled.."
24.262 Once again, Cameroonhas misquoteda document; the document in fact statesthat
thepolice postwas constructedin 1984. Thus, even if the police post had been set
up in Cameroon, the documents producedby Carnerimnwere not written until ten
years after the alleged incident, and it is difficultto understand how Cameroon
corne to regard the incident as a "fresh Nigeriari encroachment" (Mernorial,
paragraph6.95).24.263 However,as Nigeriahas alreadydemonstratedat paragraphs 19.73 to 19.76above:
(1) Contrary to Cameroon'sassertions, the locationof the Nigerian immigration
post at Tipsan (the Nigerian spellingof "Typsan")is on the Nigerian side of
the boundary as laid down by the Anglo-French Thomson-Marchand
Declarationof 1929-1931.
(2) Since in the vicinity of Tipsan the boundary is definedby that Declaration,
there is no basis upon which the boundary can be identifiedby referenceto
a German boundarymarker.
24.264 As mentioned in paragraph 19.76 above, Cameroon is wnfused as to the
geographical relationshipbetween Tipsanand Kontcha. The essential elernenb of
the situation(as shownon Map 73 of the Atlas) are:
(1) the villageof Kontchais in Cameroonterritory: Nigeria acceptsthis;
(2) Tipsan is not part of Kontcha, as Cameroon seekç to 'suggest ("Typsan
locality of the village of fintcha" (Mernorial, paragraph 6.94); and its
protestconcemingthe occupationof Kontcha,not Tipsan (AnnexMC 355)):
indeed, Cameroon's confusion as to the relationship between the two is
apparent from, for example(emphasis addedas appropriate)its referenceto
"the occupation of Cameroonian territory near Kontcha" (Memorial,
paragraph 6.91); its apparent referenceto this same matteras involvingthe
setting up of a police post "one kilornetrefrom the town of Kontcha"- i.e.
not in Kontcha (Annex OC 1 to Cameroon's Observations on Nigeria's
PrelirninaryObjections);and the statement inone of the documentsexhibited
in support of that contentionat page 305of the same Annex OC1that the
border "has been brought back to the river Tipsan, 3 kilomerresfini
Kontcha" . (3) the boundary asprescribedby the Thomson-Muchand Declaralion runs along
the River Tipsan (as explainedin paragraph 19.74 above);
(4) that boundaty river runs between Kontcha and the Nigerian Tipsan
Immigration Post of which Cameroon cornplains;
(5) Nigeria's Tipsan Immigration Post is located ;ipproximatelyhalf a kilometre
on the Nigerianside of the boundary.
24.265 In the Note from the Cameroonian Ministry of External Relations tothe Nigerian
Embassy dated 11 April 1994 - quoted at paragraph 6.95 of the Mernorialand
appearing at MC 355 - no mention is made of tlie alleged establishment oa
Nigerian Police Post in Cameroon. There is mei-ely a reference to "Nigerian
nationals" having "occupied" Kontcha, without any suggestion that thesenationals
were anything other than civilians.
24.266 As shown in paragraphs 24.261 and 24.262 above, Camemn's own documentary
evidence shows that Cameroon has known that the riligerian Immigration Post was
constructed at theatest in 1984. During the fifteenjears which have elapsed since
then there has been no protest about its construction. The Carneroonian Note of 11
April 1994(referred to in the preceding paragraph) not only made no pmtest about
the post, but did not even mention it. Givenh'isabsence of protest for at least 15
years, any claim in respect of its establishment is, for the reasons given in
paragraphs 24.52 to 24.54, now barred by lapse of time.
24.267 Not only is any such claim now stale, it is wholly without merit. Nigeria incurs no
international responsibility arising out of theblislment of an Immigration Post
within Nigeria's boundary with Cameroon as laiddoïm in the relevantinternational
instrument. 31. Incident of 29 May 1989 "at Kolofata"
24.268 Paragraphs 6.96 to6.99 of the ~emorial appear under a heading which reads:
"Abductionof a Cameroonian citizenby the Nigerian policemenat Kolofataon
29 May 1989". Paragraph 6.96 refers to an incident which occurred "near the
locality of Kolofat."Paragraph 6.97 statesthat:
l
"A Cameroonian national, Mr Ali AlhadgiAbduraman, wasstopped
by three Nigerian policemenwho have not been identified. Those
foreign officiaisseized the Cameroonian citizen in Cameroonian
temtory and tookhim by forceto the Nigerian police stationof Banki,
on the other side of the border."
i
24.269 In suppon of its allegation, Cameroon refers to a single document, which appears
at Annex MC 290. Paragraph6.98 and the front sheetof the Annex indicatethat
the document is a radio message from the sub-prefect of Kolofata. However,it
appears from the headingof the message that thedocumentwasin factan intemal
Cameroonianmessage uddresse do the sub-prefectof Kolofata,amongstothers,and
that it was sentbythe "SpecialCommissioner ...Amchide". The document,dated
30 May 1989, refersto the entry intoCameroonianterritory "at Amchide-Kolofata"
of three armed Nigerian Police "who could not be identified". It mentions the
arrest, stating thatit concerneda stolencar whichhad ken sold to Mr. Abduraman
by a Nigerian, Ibrahim Adamu. The message then states that the Cameroonian
populationof KanuriarrestedAdamuand broughthim "to this stationn. The author
did not release Adamuuntil the release of the Camerooniancitizebythe Nigerian
WIice. The message finisheswith the phrase "incidentclosed locall".
24.270 It is apparentthat:
(1) the date of the allegedarrest is not indicated inthe document; (2) according to the note, the arrest took place in Amchide (althoughthis place
is not referredto specifically inthe text of the Mernorial);
(3) there is a risk of confusion betweenAmchide, a Nigerian town lying North
of theborder at Banki,and a placecalled "Am Chidé" shownon Cameroon's
IGN maps as lying southwestof Banki, within.Cameroon(seel for example,
the mapextract appearingon page 235 of Canieroon's Observofions);
(4) the original sourceof informationconcerning the arrest of the Cameroonian
is not identified;and
(5) as at the date of the note, thematter was already "closed locally"
24.271 Although this incident is said to have occurred some ten years ago, ithas never
been the subject of any protest by Cameroon. This in itself raises a strong
presumption either that the incident never took plau:, or that Cameroon regarded
it as unimportant oras adequately dealtwith at the IticaIIevel,or that the incident
was not one forwhich Cameroon considered Nigeria bore any responsibility. In
addition, the incident is not referredto in MC 362 or 363 (which purport to list
chronologicallyallegedfrontier violationsbyNigeria),and, as stated, wasregarded
bythe relevantCameroonianauthoritiesat the timeas have been "closedlocally".
These considerations lend credence to the conclusion that Cameroon has already
treated the incident as not worthpursuing further.
24.272 In such circumstances, and in the light of thi: various uncertainties and
contradictions inthe account of the alleged incidentgiven by Camemn, and the
fact that thematter was already resolvedlocallybyMay 1989, the incident hasnot
been adequately established by Cameroon so as to give rise toany present
international responsibilityon the part of Nigeria. 32.Incidentof 6 July 1992
24.273 Paragraphs6.100 and 6.101 ofCameroon'sMernorialarepresentedunder a heading
which refersto "the arrest of four Camerooniancitizens by the Nigerian police at
Mandur Yang". Paragraph 6.100 refers to a message dated12 August 1992 from
the Chiefof the NationalSecurityProvincialServiceof North WestProvincewhich
reads:
"Four compatriotsof the border village of Mandur Yangwere taken
into detention and held at Lip in Nigeria on 6 July 1992, when
cultivatingtheir fields."
24.274 Paragraph 6.101 then states that:
"After the intercessionof the Sub-Prefect ofNwawiththe appropriate
Nigerian authorities, the Cameroonianswere releasedafter six daof
arbitrary detention in Nigeria. The Sub-Prefectconcludes bisreport
thus:
'The persons concemed returned to Cameroonian
territory without incident, buta reaction is feared from
the Cameroonian populations.' "
24.275 In support of this allegation, Cameroon refers to Annex MC 320. This Annex
consistsof three documents. Thefirsttwodocuments are thesamemessage,which
appearsto be the message whichis quotedin the Mernorial.However,althoughthe
Memorialstates that thismessageis dated 12August 1992,the document is in fact
dated 7 September 1992. Additionally,there is no indicationin the document of
who its author
Thedocumcntalsoappearsp.319ofAnnexOC1of the CameroonianbservarinonNigeria'sPreliminaty
Objedom, However.no funherinformationis givenin thatoassisiidentificaiiondmment.24.276 Correspondencewhich was actuallydated 12 August 1992and originatedfrom the
"Chief of the National Security Provincial Serviceof the North-West" isreferred
to in the heading and the first paragraph of the anonymous, undated message;
however,Cameroon has failed to include a copy of this "correspondence" in the
Annex. The message states that the "correspondence" had "made known the
interception and imprisonment of four compatriots by the Nigerian Police at
Mandur-Yang". The next sentencein the messageis the one quoted in paragraph
6.100 of the Mernorial. However,it is apparentthat,once again, that quotation is
not complete. Therelevantsentence reads:
"Onthe basis of thisnote, it appearstharfour compatriotsof tke said
border villagewere taken into detentionand held at Lip in Nigcria on
6 July 1992, when cultivatingtheirfield ut Magob-hg ...(emphasis
added)
24.277 In other words, the sentencerelied upon by Cameroon
(1) is itself merely theopinion of an anonymousauthor as to the conclusionto
be drawn from the contents of some other correspondence, which
correspondencehas not been producedby Cameroon;
(2) indicates that only one field was being cultivateby the Cameroonians, not
several "fields": and
(3) that this single field was locate- and thereforethe arrest apparently took
place -in Magob-Yang,a location which is not referred toby Carneroon at
al1in the Mernorial,and the exactposition of which is not made clear by
Carneroonany~here.~''
420
The IMaiionof MandurYangilszlf ir veryapproxiniateindicaton pp,565'and6ûû oftheMemoriol. 24.278 The messagealso states'that the arrestfolloweda landdispute between"the parties
in question"and one of their relatives, aCameroonianresidentat the Nigeriantown
I
of Lip, who purported to claim lands "on Cameroonian territory" which had
belongedto his grandparents.
24.279 The other document appearingat Annex MC 320 is a note which is dficult to
read. It appears to be dated 2 December 1992, and to have been written by the
I Minister of TerritorialAdministration. Itrefersto an allegedamest of fivemonths
earlier, but noticeably gives noindication whatsoever of wherethe arrest took
place, not evenwhether it tookplace in Cameroonor Nigeria.
24.280 This incidentis said to haveoccurred in July 1992. Cameroonhas not shownthat
it xas ever the subject of any protest at the inter-gmernmental level. The
document at MC 320, however,states that theSub-Prefectof Nwa spoke with the
authorities of the municipalityof Sadauna at Ngembu, and that that intercession
resulted in the resolution of the matter by securing the release of the persons
concerned. From the informationprovided by Cameroon, itisapparent that this
I whole matter arose out of what was essentially a local private dispute between
individuals involvinga claim to land. It was resolved in the appropriatemarmer,
namely by localdiscussion. By not raisingthe matter in anyway withthe Nigerian
Government,Cameroonacknowledgedthat it wasan essentially localdisputewhich
had beendealt with satisfactorily atthe local level.
24.281 This alleged incidentis not referredto in the list of incidents appearing at Annex
MC 362, although in the scheduleof incidents appearing at Annex MC 363 there
isan entry which relatesto an incident whichtook place onthe same date as that
of the incidentnowunder discussion,6 July 1992. Howwer, that entry recordsthe
facts differently, in that it indicates that'the incident took pla'tAyang-fia",
and that four men,onewomn and a babywere detained -andno mention ismade
ofpersons being held at Lip for any period of tirne.24.282 Cameroon'saccount of the factsof this allegedincident is irnprecise, inconsistent,
and unsubstantiatedby reliable evidence. This, together with the absence of any
protest by Cameroon, the apparent local and private mmre of the matter, the
resolution of the affair through local discussions,and the absence of any evidence
of material damage suffered by Cameroon, deprives this alleged incident of any
basis for asserting Nigeria's international responsibility. Quite apart from the
considerations referred to above, particularly in paragraph 24.48, Nigeria denies
that this alleged incident givesrise to any international responsibilityon Nigeria's
part.
33. Incident at"Mbelogo" on 26 January1994
24.283 Paragraphs 6.104 to 6.107 of Cameroon's Mernorialappear under the heading
"Arrest of a Nigerian census taker at Mbelogoon 26 January 1994". Paragraphs
6.104 and 6.105 refer ta messagedated21 Januav 1W in whichthe Sub-Piefect
of Furt-Awareports on:
"the arrestin the border village of Mbelogo of a Nigerian census
taker, Mr Garba Makeri, who was acting with the complicity of a
Cameroonian citizen named Elias Ngong. The Nigenan officialwas
carrying a tax assessment register with the names of Cameroonian
citizenslivingat Mbelogo. ...The Subprefectstatesthat the villageof
Mbelogo is constantlycovetedby Nigeria ..."
24.284 If the arrest is alleged to have taken place on 26 January1994, itis difficultto
understand how it came to be referred to in a documentwhich precedes that date
by five days.
24.285 Paragraph 6.106 refers to a message dated26 January 1994 from the same Sub-
Prefect. which states that: "Thisarrest revealsthe hegemonicambitionof our western neighbour,
which wishes ...to occupy Cameroonian territory andthen make out
that it was a mistake on the part of its forces of law and order.
...,1421
24.286 In support of its allegations, Cameroon refers to two annexes, MC 335 and 336.
MC 335 consists of the message dated21 January 1994 from the Sub-prefectof
Fum-Awa, referred to in paragraph 6.104. That message refers to an arrest,
although the date of the arrest is not clear. Nor is it clear where the arrest took
place. Indeed, there is no reference in the document to the census taker having
even visited "Mbelogo", although thatplace is mentionedin the messagein other
contexts.
24.287 The document at AnnexMC 336 is the one which is quotedat paragraph 6.106 of
die Memorial. However,contrary to the assertion in pamgraph6.106 ancithe front
sheet of the Amex, this documentwasnot writtenby theSub-P&t ufofuni-Awa.
It is in fact a note fromthe Prefect at Wum which refersto a report bythat Sub-
Prefect, which report may be the one appearing in MC335. Once again, the text
of the message hasbeen wrongly quotedin the Memorial:the quoted paragraph
begins "The analysis of this report reveals .."; not (as stated in the Memorial)
"This arrest reveal...".The notedoes refertothe arrest, statingthat itook place
at "Mbelogo", even though the note on which it is apparently based does not
indicatewhere the arrest tookplace. It failsto specifythe dateon which the arrest
took place.
24.288 "Mbelogo" is in fact the Nigerianvillagecalled Mberogowhich is situated to the
northeast of Mount Tosso, in Nigerian territory and near~e Nigerian town of
Tosso. Its position at approximatelylatitude 6" 55' 09" N andlongitude 10" 13'
1 421 îhe last five wordsof the quoteappearinghere are a justifiedvaUiçtCourt'unnsiatinofthe
Memonal.
I 12" E is indicated on Map 75 of the Atlas.42It is apparent thatCameroon is not
at al1sure that "Mbelogo" ispart of Cameroon - the note of the Sub-PrefectStates
that it is a "disputedarea" whichis "considered a'NOMAN'S LAND' (Neutral)".
24.289 Cameroon's confused perception of the boundary in this area is further
demonstratedby the fact that the same note suggeststhat it canbe "clearlybe seen
that Mbelogo and men Tossoare parts of Cameroon" (emphasis added). This
despite the severalmaps relied uponby Cameroon(includingMaps M63 andM66
of the Mernorialand that on page 331 of OC 1) which show Tossoclearly within
Nigeria. The locationof Tossoin Nigeriais alsoevident fromthe discussionof the
boundary in the area of Bissaula-Tossoat paragraph 19.15 et seq. above,and from
the accompanyingmaps(Maps65 and 66 in the Allas). Cameroon's perceptionand
its uncertain basis is mostclearly illustratedby the document appearingin Annex
MC 361, which is a note dated 13 May 1994 from the Frefect of Wum. It States
that:
"...many Nigerian villages in Taraba State .. are on Cameroonian
territory if the declarations of Fum-Awa, who are vestexiwith the
German pillars separatingus are anythingto reckon with. MUBI, a
Nigeriantownon whom Fum-Awarelies economicallyis said to be on
Cameroonian soil. ...
...most sensitive is the case of MBELOGO, a quarter under FUN-
Awa, said to be neutral between the counuies but located on
Cameroonian territory. It is king administered as a quaner under
TOSO [sic]in NGEMBO localGovernmentArea. ...
It is difficultto crosscheck this informationdue to communicationdificulties.
Webelieveit is 90% trueand factual." (emphasis added)
422
Nigtria noilhat ap.331 of AniieOC 1 of the CamemoniaObservaririCameniun ha8verymughly
ilidiraicdpositioof"Mbelogo"bysuperimposinittiamconthemap inanincorrectposition.erroneuusly
sliuwiniiobe lyingwithinCameroon. 24.290 It is thus evidentthat, at least as lateas the dateof the allegedincident,Cameroon's
claim on "Mbelogo" and other villages in the same area were based on the
assertionsof "the FUN-Am", whosecredibilityis expressly doubtedbythe author.
The reference to "German pillars" also calls Cameroon's position into question:
Mberogoand Tossoare adjacentto a sectionof the boundary which isbased upon
the former interna1boundarycreatedbythe British betweenNorthem and Southem
Cameroons, and not theformer Anglo-Germanboundary."
24.291 Cameroon's uncertainty about this alleged incidentas a basis for a clairn that it
involves Nigeria's internationalresponsibility is demonstrated by Cameroon's
omissionof this incident fromits schedulesof Nigeria'salleged frontier violations
given in MC 362 and MC 363.
24.292 There is nobasis in thisincidentfor assertingany internationalresponsibility on the
part of Nigeria. The facts as presented by Cameroon are unclear, and not
established by reliable evidence. Cameroon has failed toshow precisely where
I "Mbelogo"is located, and that it is located in Cameroon. EvenCameroon'sown
!
evidence revealsconfusion and uncertainty onthis point: and in fact, the place
referredto byCameroon as "Mbelogo"is the Nigerianvillageof Mberogo, so that
the presence in that village of a Nigerian census-taker is entirely justified and
cannotgive rise to any internationalresponsibilityon the part of Nigeria.
I
34. Incident of26 September1994at "Mbelogo"
24.293 Paragraph 6.108 of Cameroon'sMernorialrefersto a message from the Governor
of North West Province to the Deputy Prime Minister of Cameroon dated 27
4D FurtheldifficulconcerningCameroon'pserceptioofthe'position of the boundaryinareaareraised
klow atparas.24.297.24.304and24.305. September 1994 which reports on "a very senous incident", described in the
Mernorialas follows:
"TwoCameroonian gendarmeson patrol at Mbelogo had intercepted
two Nigerian military whowere unlawfully present in Cameroonian
territory. After arresting them, therooniangendarmes were set
upon by a mob and handcuffed,while their weapons and amrnunition
were stolen."
24.294 Paragraph6.109 adds that:
"The patrol's weaponry...was not returnedbythe Nigerians."
24.295 In supportof this allegation,Carneroonrefersto Annexes. The first, MC 371,
is the message dated27 September 1994 referred toin paragraph 6.108. The !
information in the message is said to be based on unidentified "sources" in the
Gendarmerie. ContraryIO whatis impliedbythetextof theMernorial, the message
(1) does not indicate the number of Cameroonian gendarmes or Nigerians
~
involved;
(2) refersto the apprehendedNigeriansas "border police", not "military";
does not indicate that theCameroonianswere handcuffedat anytime; and
(3)
(4) does not indicate thatthe gendarmes'weaponsand amrnunitionwere stolen. 1
24.296 The second Annex, MC 372, contains a report dated 2 October 1994 from the 1
Commander of the FUN-AwaGendarmerie Brigade. Pan of the report is quoted l
in paragraph 6.108. However,several parts of the report have been omittedfrom
the quotation; these parts deserve further examination. It is evidentthat although "assignedroutinelyto patrol service"the Camerooniangendarmeshadbeen given
"specialdirectivesandorders" (not,asmisquotedonceagainintheMernorial,mere
"orders"). These were orders and'directives"to halt for awhile in the villageof
Mbelogo witha view totryto surprise anescapedpersonnamedElias NGONG" -
the person referred to in paragraph6.104 of the Mernoriaiin the context of the
previousallegedincident. The report also states that afterestintwo Nigerian
rnigmtionoflcials (not military),theyproceededto attemptto arrestNgongand his
elder brother, which attempt failed. Only then, on thway back to Furu-Awa,
were the gendarmesattackedby "the populationof Tosso".
24.297 The report records that a short time after thegendarmeshadbeen led amy, 'the
villageChief" and theCommanderof the Cameroonian Brigade "went in civilian
clothesto TOSSO (Nigeria) in order to obtain details concerning the precise
positionof the twogendarmes". The report also refersto aMr. JonathanTempe,
describedas "thevillagechief"and "thehighestwditional authorilyinFum-Awa",
the Camerooniandistrictin whichCameroonclaims "Mbelogo" islocated.Certain
actionsof this Cameroonianofficialare describedbytheauthor,includinmeetings
he held with Nigerianofficialsfrom "Mobi"and Tosso. Mr Tempe,however,was
clearly of the opinion that "Mbelogo"was Nigerian, as thereport states that
"nothmgcan convince hm that MBELOGOis not Nigeriantemtory". He also
"organise[d]meetings withthe Chiefof ïOSSO to block anyaction carriedout by
the Gendarmeriein this part of the territory".
24.298 This last phrase quotedfrom the report indicates thatat the time of the incident
alleged,anofficialrepresenting Cameroon-havingrecognisedthat "Mbelogo"was
Nigerian -had in factinvitedNigerian officialto take steps to intemenin the
temtory under his charge,which was apparently thewhole of the Cameroonian
district of Furu-Awa. Thus, even if "Mbelogo" was in Cameroon's Fum-Awa
district, the presenceof Nigerian officiathisdistrictsappd by thelocal
Cameroonianauthority.24.299 Nowhere does the report state that the Cameroonians' weapons and ammunition
were stolenand notretumed to them.
24.300 Another document annexed by Cameroon, not referred to in the text of the
Memorial describing this incident but apparentlyreferring tothe same incident,
appears at MC 370. It is an anonymousnote dated 27 September 1994. However,
the fourth and fifthparagraphs of the note indicatethat the gendarmes were not
attackedby the people of Tosso,but by the people of "Mbelogo".
24.301 Cameroon refers to this incident again at page 331 of Annex OC 1 of its
Observationson Nigeria's PreliminaryObjections. However,no mention is made
there of the alleged arrest of the Nigerian policelmilitaryby Cameroonian
gendarmes. Instead, it describes the incidentas:
"Attacks perpetrated by Nigerian police against Cameroonian
gendarmes, withthe assistanceof farmersfrom the Nigerian villageof
Tosso".
24.302 This descriptionof the allegedincident is diffitolreconcile with the account in
the Memorial, which statesthat thegendarmes were attackedby local inhabitants,
at a time when the Nigerian officials (referred to here as "police") were under
arrest.
24.303 Cameroonexhibitstwo further documents insupport of irsallegation,at pages338
and 339 of Annex OC 1. The first is a Note dated30 November 1994 from the
Cameroonian Ministry of Foreign Affairs tothe Nigerian Embassy in Yaoundé.
This Note refers to the incident, stating that the Nigerian offiweres "Border
Police". This document also suggests -unlike the documents referred to in the
Memorial - that elements of the Nigerian "BordePolic e"sistedthe inhabitants
of Tosso in their attack on the gendarmes. It is not clear if these Police are
supposedto be others than those arrested by the gendarmes;whateveitsrneaning, the Note refersto the Policeassistingthe villagers, and no-as stated on page331
of Annex OC 1 -the reverse. In any-event, this Note gives no indicationof the
sources upon which it is based.
24.304 The seconddocument is a note dated 9 October 1994from the Divisional Officer
of FUN-Awato the Prefectof Menchum. This document notes that as of the date
of its writing, the two gendarmeswere hospitalised in Nigeria. Thenotestates that
the incidentinvolvedthe people of Tossocrossing the River Garnana"whichat the
momentis consideredas the boundary". Thisphrase also shows thatCameroonis
in error as regardsthe positionof the boundary in thisarea. The River Gamanais
not theboundary inthis area. Indeed, eventhe Cameroonianmapextractappearing
on page 331 of OC 1 showsthe River Gamana mnniy through Nigenan territory
inthis area. The rnaps accompany ing paragraph 19.15et seq. abwe (Maps 65 and
66 of the Atlas) show the same. The note of 9 October 1994 also states that "the
people of Tosso" were blamedfor the incident and charged with paying for the
treatment of the gendarmes, suggesting that their attack was not endorsed by
Nigerian authorities. Furthermore, there is no suggestionin this document that
Nigerian BorderPoliceor any Nigerian officials tookpart in the attack. The note
alsodoes not indicatethe source of its "reliable information".
24.305 As has already been explained at paragraph24.288 abwe, the place called
"Mbelogo"by Cameroon is in factthe village calledMberogowhich is near Tosso:
this villageis Nigerian, lying on the Nigenan side ofthe boundary withCameroon.
Significantl- in view of the erroneous referenceto the River na in the Note
dated9 October 1994(see paragraph24.304 above) - Mberogolies to theSouthof
the River Gamana, between the river and the boundary with Cameroon. The
incident thereforeinvolvedCamerooniangendarmesentenngNigerian territory and
arresting Nigerian migrationofficials goingabout their duties in Nigeria on behalf
of Nigeria. Thus it is an incident for which Cameroon, not Nigeria, bears
responsibility. Accordingly, this incident is also the subject of a Nigerian , .
Counterclairn(sec paragraph25.61 below).24.306 As with the preceding incident concerning"Mbelogo"(incident34), Cameroon has
failed clearly to explain the fac6 on which it relies and tosupport them with
adequate, reliable and consistent evidence. Moreover, Cameraon is evidently
confused as to the location of the boundary in the area and in particular as to the
precise whereabouts of "Mbelogo" in relation to the boundary. and has failed to
appreciate that the village of Mberogo is in NigerIn.these circumstancesthere
is no basis in this incident for assertingany international responsibilityon the part
of Nigeria. and Nigeria denies that any such responsibilityexists.
35. "Areaof Nigerian Occupationi "n Faro-et-Deo andMenchum
24.307 On pages565 and 600 of itsMemorial,Cameroonexhibitsa map which,interalia,
purpons to indicateby shadingcertain areas whicharedescribedinthe map legend
as "Area of Nigerian occupation". Two of the areas shown with shading are
substantialparts of what Cameroon indicates to btheFaro-et-Deoand Menchum
Divisions of Cameroon.
24.308 The area of shading in the Menchumdivision represents, according tcthe map's
scale, an area which measures approximately50 kilometres across in someplaces. I
However,nowhere else in Chapter 6 of the Memonal is there any reference to a
"Nigerian occupation" of any part of the Menchum division.
24.309 The shadedarea in Faro-et-Deo Divisionindicatesan area whichin places measures
over 40 kilometres across. However,nowhere else in Chapter 6 of the Memorial
is there any reference to a "Nigerian occupation" of any part of the Faro-et-Deo
Division, apart from theallegation concerningthe "occupation"ofthe singlevillage
of Tipsan; and as eiplained in paragraphs24.263'and 24.264 above, Tipsan is in
fact within Nigeria, not Cameroon. 24.310 These generalised assertions of an alleged Nigerian occupation of parts of
Cameroon are unspecificand unsubstantiatedbyany evidence whatsoever,and are
not developed(or evenreferred to) inother relevantpartsof Cameroon'spleadings.
They are demonstrably insufficientas a basis for any serious claim that Nigeria
bearsinternational responsibility, and Nigeriadenies that they establish any such
responsibility.
M. AUeged Incident. referred to in Anna OC 1 of Cameroonls Obsemntionson
1
! Nigeria's PreliminarvObiections
i
24.311 Nigeria's Sixth Preliminary Objection was that thewas no basis for a judicial
determination that Nigeria bears international responsibility for alleged frontier
incursions. In its Observations on Nigeria's Preliminary Objections, Cameroon
included 16 paragraphs which were said to relate to the Sixth PreIirninary
Objection. One of those paragraphs, paragraph6.05, readas follm:
"At the present stage in the proceedings it sufficeto indicate that
Cameroon has listed a series of incidents al1along the boundary of the
zone from Lake Chad to the sea (see "Catalogueof Incidents"- Annex
OC 1). These incidentsconsisteither of incursionsby the Nigenan armed
forces or police into Camerooniantemtory, or of boundary vioiations
followed by the occupation of parcels of Cameroonian territory by
Nigerian civil populations then supported by the armed forces of their
country. ..."
24.312 Severalof the alleged incidents referredto in Annex OC1 were notmentioned in
any of Cameroon's otherpleadings. They will, nevertheleste dealt with here in
the followingparagraphs. Even at this stage, however,it shoulbe noted that-
contraryto Cameroon'scontentioncited above - severalof these allegationsmake
no referencewhatsoeverto the Nigerian armedforces or police.24.313 The subheadings thatfollow reflectthe localities and dates suppliedmeroon
in relation to each of the allegations contained in Annex OC 1; an English
translationof the allegationfollowseach subheading.
36.Darak - 26.06.1987
24.314 The legendon page 198 of OC 1reads at item1:
"Repeatedincursionsby the political anddministrariveofficialsand
by the Nigerian forces atDARAK.
A strident clairn madby the political authorities in Nigeria on this
LakeChad island situatedin Cameroonianterritory."
24.315 The map extract on page 198 showsa place called "Darack"ata position the co-
ordinates of which are dificult to determineusing the informationavailablein the
extract. It appears to be lying at approximatelatitude 12'N.8'However,the
Darak knownto Nigeriais located at approximatelatitu12" 53' N, and longitude
14" 19'E.
24.316 The legend refers to a radio message from the Prefect ofMora tothe Govemor of
the Far North, dated27 June 1987, whichdocumentisexhibitedon page200. The
source of the information containedin the messageis not reveaied; the message
merely refersto "information comingto Ourattention". The message refersto a
visitof severalNigerianofficialson 26 June 1987to "Darac[sica]nislandin the
Lake ".
24.317 Thus, amongst other considerations, the single documentproduced by Cameroon
in support of its allegations: (1) is an intemal Cameroonian message containhg information from an
unspecifiedsource;
(2) refers to a single visit to Darak by Nigerian officials,and nto"repeated
incursions":and
(3) originates with the Prefecture of Mora, a tom lying approximately 160
kilometresSouthof Lake Chad, in a Departmentwhich is entirely separated
from the Lake by the Departmentof Logone-et-Chan(see, for example,the
Map at page 407 of Cameroon'sMemorial).
24.318 Moreover,for the reasons explainedin Part II above,Darak is a villageoverwhich
Nigeria has sovereignty. Visits by Nigerian officials toDarak do not therefore
involveany questionof Nigeria's internationalresponsibility.
24.319 Accordingly,not only has Cameroonfailed toprovide adequate or reliabIewidence
of wrongfulconduct byNigeria such as togive rise Io internationalresponsibility
on Nigeria'spart, and also failedto include thisallegedincidentin Amex MC 362
(purportingto list alleged Nigerianfrontier violations),but Cameroonis seekingto
attribute international responsibilityto Nigeria for abysNigerian officials in a
location over which Nigeria hassovereignty. In the circumstancesNigeria denies
that the alleged incident involves Nigeria's international responsibility,since
Cameroon has failed to show anybasis on which any such responsibilitycould be
said to exist.
37. Hile Aiifa -1987
24.320 The legendon page 198of OC 1 reads atitem 2:
"Incursionsby Nigerian armed forces who raisedthe Nigerian flag in
place of Cameroon's in the Cameroonian villages in the district of
HILE-ALIFA:TCHIKA,BARGARAMand.NAGA"24.321 (1) Cameroon has not given a specificdate for this alleged incident
(2) Cameroon's account of the circumstances iscursoty.
(3) Cameroon has provided contradictory informationconcerning the locationof
this alleged incident. The map appearing on page 198 suggests that the
incident alleged took place either in or very near the village of Hile Alifa.
However, as indicated in the map at Amex 7 of Camemn's Additional
Application,Bargaramis a locationquite distinct from HileAlifa, lying some
distance to the West of the latter. Additionally, the places in LakeChad
which are knownas Chika'a and Naga'a liebetween seven andtenkilometres
North of Hile Alih (see Map 42 of the Atlas}.
24.322 The legend refers to a radio message from the Prcfectof busseri to the Govemor
of the Far North Province dated 7 July 1987. This appears to be the document
exhibited at page202. The author does not indicate the source of his information
concerning the alleged incident. Although the message referstoMigrrian soldiers
having set up their flag at the three places indicateby Cameroon, there is no
reference in the message whatsoeverto Cameroonian flagshavingbeen replacedby
the Nigerian flags.
24.323 In so far as the incident may have taken place within Lake Chad, Nigeria refersto
what is said in Part II above as regards Nigeria's swereignty over locations within
Lake Chad.
24.324 This incident allegedly occurred some 12 years ago. Even taken at face value,
Cameroon has shown no evidence of substantial damage to matenal Cameroonian
interests. Not only is Cameroon's account of the alleged incident cursory and
confused; without any clear and precise indication of the date, surrounding
circumstances and location of this alleged incident, but Cameroon has not shown
itto have been the subject of any protest to Nigeria.24.325 In al1the circumstancesCameroon has failedto discharge the burden which rests
upon it in suchmatters, and Nigeriadeniesthat Cameroonhasestablishedanybasis
for holding Nigeriaintemationally responsible for the conduct said to have taken
place.
38. Faransa- 19.12.1984
24.326
The legendon page198of OC 1 reads at it3:
"RepeatedincursionsbyNigeriansoldiersont0the Cameroonianiçland
in Lake Chad named FARANSA,where they several times replaced
the Carneroonianflagwith the Nigerianone."
24.327 Nigeria is not awareof a place called "Faransa". AlthoughCameroon indicatesits
position by superimposingthe word "Faransa" on the map extract at page 198, it
isnot possible to identify its precise location fromthe extract shown.
24.328 The Legend refersto "VerbalNote N1628/DIPL/l/ of2"3Febniary1985 .
Note matching this description, written by the Cameroonian Ministry of Foreign
Afïairs and addressed to the Nigerian Embassy in Yaoundéappears at page 204.
The Note Statesthat "for the second consecutivtwoNigerian soldiers took
down and carried away,o19 December 1984,the Cameroonian flag" which had
been raised in "Faransa".
24.329 Thissingle documentadvancedin support of Cameroon's allegation,written over
two months after the date of the alleged incident
(1) does not state the source of the information contained withinit;
(2) does not explain the circurnstancessurroundingthe alleged incident; and (3) makes no reference to replacing a Cameroonian fiag with a Nigenan one
24.330 In so far as the incident may have taken place within Lake Chad, Nigeria refers to
what is said in Part II above as regards Nigeria's swereignty over locations within
Lake Chad.
24.331 This alleged incident is now some 15 years old. Although ir was the subject of a
diplomatic Note from Cameroon dated 23 Febmry 1985, that Note was not in
terms a "protest" against the act which hadallegedly occurred but rather a request
to the Nigerian authorities to put an end to such acts in future. The term
"protest" is not used, nor does the Note even "reserve Came~oon'srights" in the
matter. There is no evidencethat the Notewas ever followadup byCameroon: and
the incident is not referred to in MC 362 and MC 363, which purpon 10 list
Nigerian frontier violations. Even if the Note wereui be regarded as constituting
a protest, events have shown that it would havebeen a mere "paper prutest", and
as such not sufficient tokeep alive indefinitelya claim in relation to the matter to
which it relates. In short, after the passage of over14 years since the note was
sent, any claim in respect of the maners referred to in it is, for the reasons given
in paragraphs24.52 to24.54, now barred by lapse of the, an outcome reinforced
bythe non-inclusion of the incident in MC 362 and MC 363.
24.332 Given the foregoing considerations, and in particular the uncertainty over the
identification of the location where the incident is alletohave taken place, the
absence of any effective protest on the part of Cameroon, the passage of some 15
years since the incident took place, and (in so far as the incident might have taken
place within Lake Chad) the considerations set out in Part II above, Cameroon has
failed to establish any basis on which Nigeria is to be held intemationally
responsible for the alleged incident, and Nigeria denies any such responsibility. 39. Kofia- 19.05.1989
24.333 The legendon page 205 of OC 1 reads atitem4:
"Repeated incursionsby the Nigerian Police forces, fishermen and
agriculturalists into the Cameroonian villages in the areaLake
Chad, in particular:
KOFIA
KUMBELO
BULARAM
KINSAYAKU
WAKEME
Public claim to these villages madeby the authorities of the Nigerian
Government."
24.334 (1) The Cameroonianmap extractappearing onpage 205 of theObseniarioniss
intendedto showthe locationsrelevant tothe incident. Howeveriappears
that Cameroon has only identified the location one of the five villages
referredto in the legend on page 205, namely Kofia.
(2) The same map extract shows the boundary between Cameroon and Chad
along the RiverChari. The boundary is indicated by a series of crosses
appearingat intervalsalong the river. It is clear fmm this map that Kofiais
in Chad, not Cameroon (see Fig. 24.6).
24.335 In support of this allegation, Cameroon refersto two documents. The first
I document is a Note dated 8 March 1990, appearing on page 707, which was
addressed to the Nigerian Embassy in ~aoundéby the Cameroonian Ministry of
External Relations. The Note states that on 19 Novernb1989, ~i~erhn Police
carried out an incursi"offthe Islandof Kofta[sic]".24.336 It is evident that:
(1) even assuming that "Kofta"is meant to read "Kofia",this documentmakes
no referencewhatsoeverto the other four locations specified onpage 205;
(2) the document specifiesa single incursion,not "repeatedincursions";
(3) the document does not refer to any incident which took place on 19 May
1989 (whichis the date givenfor this incidentin the tableat page 205of OC
1); and
(4) the documentdoes not refer to incursionby fishermenand agriculturalists.
24.337
Furthemore the note was written nearly four months after the date of the alleged
incidentreferredto, and does not indicatethe source of its information.
24.338 The seconddocumentrelied upon by Cameroon isdescribcd as a messagefrom the
Govemor of the Far North dated 29 October 1987. This is presumably the
document exhibited on page 208. However, there is no indication that this
document was written by the Governorof the Far North. Indeed, althoughbarely
legible, the stamp appearing by the signature on the document seems to refer to
"interna1security". The message refersto an "anached extract" of a Nigerian
newspaper relating to "the Nigerian claim to the Cameroonian villages of Kofia,
Kumbelo, Bularam, Kinsayaku and Wakeme". However, Cameroon has not
exhibited this newspaper extract. The message then Statesthat the five villages
mentioned "have just been officially recognised by the authorities of the
Govement of the StateofBorno [inNigeria] asking Cameroonianentities". The
message then states that according to the Nigerian newspaper, "the Nigerian
occupiers, who in large measure are agriculturalist~and fishermen, have followed
'the falling waters of LakeChad into Cameroonianterrifory". The message adds Figure 24.6
Extracted from page 205 of Cameroon's Observations that the police chief for theNigerian Stateof Borno had "deniedthe claim that five
Nigerian border villages havebeen occupiedby Cameroonian gendarmes".
24.339 The document exhibited by Cameroon does not refer to any incident which took
place on 19 May 1989; in fact, it pre-dates thatdate by more than twoyears.
24.340 Additionally,the messagedated 29 October 1987:
I
(1) makes no referenceto Nigerian police making an incursion into Cameroon;
l
(2) relies upon a Nigerian newspaper as the source of some of its information,
and fails to exhibitthe relevantextract of the newspaper;
(3) describes the "Nigerian occupiers" allegedly referred to in the Nigerian
newspaperas "agriculturalistsand fishermen"; and
statesthat, far fromclaimingthem, the NigerianauthoritiesinBorno are said
(4)
to have expressly recognisedthe five villages referred tby Cameroon on
page 205 as being Cameroonian.
24.341 In so far as the incidentsmay havetaken place withinLake Chad, Nigeria refers
to what is said in Part IIabove as regards Nigeria's sovereigntyover locations
within Lake Chad.
24.342 In support of its allegations, Cameroon relies to a largeent upon extractsfrom
a Nigerian newspaper. This calls for two comments. First, Cameroon has failed
to produce a copy of, or to identify, the newspaperextracts on which it relies;
second, for the reasons explained in paragraph24.46 above,particular caution has
to be exercisedin relying on material appearing in press reports24.343 In part the allegationsmade by Cameroon concern theactivitiesof "agriculturalists
and fishermen". Cameroon has failed toshow any basis on which the conduct of
such persons is to be attributedto Nigeria(as to whichsee above,paragraph24.55
et seq.).
24.344 Although the incidentwas the subject of a diplomatic Notefrom Cameroondated
8 March 1990, that Note, like the Note relied upon by Cameroon in the last-
mentioned incident,wasnot in terms a "protest"againstthe act whichhad allegedly
occurred. The term "protest" is not used, nor does the Note even "reserve
Cameroon's rights" in the matter. There is no evidence that the Note was ever
followedup by Cameroon: it constitutes at most a mere "paper pmtest", and as
such is not sumcient to keepalive indefinitclya claim in relatiotothe maner to
which it relates.
24.345 Given the foregoingconsiderations, and in particular thedoubts about the locations
and dates where the incidentsare alleged tohavetaken place, the inadequacyof the
evidence relied uponby Cameroonto substantiate itsallegationsthe absenceof any
grounds for attributingto Nigeriaa substantial partof the acts complainedof, the
absence of any effective protest on the part of Carneroon, and (in so far as the
incident mighthavetakenplace withinLakeChad) the considerationssetout in Part
II above,Cameroon has failed to establishany basis on which Nigeriamaybe held
internationally responsible for the alleged incident, and Nigeria denies any such
responsibility.
40. Blangoua - 13.05.1989
24.346 The legendon page 209 of OC 1 reads at item 5:
"Incursionby the Nigerian policeinto the fishermen'sencampment at
BLARAMin Cameroonianterritoiy and illcgal and irregu leirire
of a Cameroonianfishingvesse1at BLANGOUA". 24.347 This allegationhas already beenexaminedin relation to the allegationcontainedin
paragraph 6.88 of the Memorial(see above, paragraph24.247 et seq.).
41. Dambore - 04.03.1995
24.348 The legend on page 212 of OC 1 reads at item 6:
l
"Launching by the Nigerian forces of expeditions against the
fishermen, in relation to small barrages put up in Carneroonian
territory in the Doumbas (ElBeid)"
24.349 The "Nigerian forces"referred to by Cameroon have not been identified
24.350 The map extract appearing on page 212 indicates twa places with the name
"Dambore", both of which are identifiedby additions to the printed niap. One
. . addition is in manuscript by the large "6".and the otherone uses suyierimposcd
prinr near the bottom of the extract, approxirriatelythree centimetresto the right of
"Fotokol".
24.351 In support of its allegation, Cameroonrefers in the legendtwo documents. The
first is a report dated 22 March 1995. This appearsto be the dmument exhibited
on pages 214 to 217, which is a report by the Commandantof the Gendarmerie
Brigade at Fotokol, identified as a report "on the incident which occurred on 4
March 1995, between the Cameroonianand Nigerian fishermen". The opening
paragraph of the report refers to the "ethnic clash" which occurred "between the
Cameroonian Arab fishermenand the Bomoese fishermenfrom Nigeria". The
report then details the background to the clash, which relatesto certain illegal
fishing practices along the El-Beit (Ebeji) River,which practices involved the
constructionof barrages. The reportStatesthat on 3 March 1994, the "fisherchief
ofWulgo"learned that certain fishermenhad installcdsuch barrages at an area in Nigeria called Lelenowa. He and "a number of fishermen decided to go and
destroy them". They informed the Nigerian Policedetachmentat Mklgo, "which
accompaniedthem" .
24.352 On 4 March 1995, the Chief of the Nigerian Fishermen "and his aides" arrived at
Lelenowa. There was an argument, after which the son of the village Chiefof
Damboré hit a Nigerian fisherman with a stick, which led to a "pitched battle" in
which Camerooniansand Nigerians were wounded.The Nigerianpolice intervened
and the fishermen dispersed, but the "Arab fishermen" (presumablythe
Cameroonian Arabs referred to at the beginningof the report) 'Xecidedto go to
Lelenowa". On the waythey met a Cameroonian fisherman,and beat him.
24.353 The rcpott continues to state that infonnation which had been gathcred "did not
enableone to establish thatBornoeseCameroonianshad taken part on the Nigerian
side" and thatthe (presumablyCaiiieroonian)Arabs "claimedthat theyhad çlashed
with theCamcrooniansand not theNigcrians". Despite these cclims, thc author of
the report insistson referring to the incidcritas a "borderincident", but docs go on
to note that the incident would not have taken place if the Fishery Authorities at
Damboréhad properly dealt with the illegalfishingactivities.
24.354 Thus, the report suggeststhat:
the alleged incident took place at Lelenowa, a place which the report
(1
confirmsto be in Nigeria;
(2) the argument oniy escalated to physical violence once the son of an
(apparentlyCameroonian)village Chief hita Nigerianfisherman,on Nigerian
territor;
(3) the only involvement of "Nigerian forces" other than civilians was the
presrnce of Nigerian police "on the scene", i.e.on Nigerian 'territor-it is evident that they did not participate in the violence and did not enter
Carneroon; and
(4) the author of the report was unable to gather the information necessary to
categorisethe incidentas a "border incident",which appearsto havebeen his
1 objective, despite his lackof supportingevidence.
24.355 The seconddocument relied upon by Cameroon is described in the legend onpage
212 as "1034/SPSN/EN/DARG/Bl du 12.10.92". This seems to be a referenceto
the document exhibitedon page 218 which bears this referencenumber. However
this documentis dated 12November1992(althoughthe textis barely legible). This
document refers to another letter, which is said to have concerned "exactionhy
Nigerian soldiers from Carneroonians".
1 24.356 The documentis irrelevantto the incident forwhichitis cited.Itis dated overtwo
1
years beforethe date of the alleged incident.
24.357 In any event:
it makes no mention of Dambore or ~elenowa;and
(1)
(2) it makes no referenceto "expeditions"against fishermen or,for that matter,
to any fishermen.
24.358 Although not referred to by Cameroon in the legend on page 212, Cameroon has
pmduced fiveother documentsin the sectionof OC 1relating to "Dambore". Only
two of those documents make any reference to the alleged incident. The first
appears on pages 220 and 221, and is a radio message dated18 December 1995
together withitsfront sheet. Thismessage,writtentwo and a half rnonthsafter the
date of the alleged incident,difficultto comprehend. Howwer, the document is
primarily concerned withthe visit to the Dambore region of a mixai Cameroon- Nigeria commission to gather information from Nigerian sources about various
essentially private disputes among fishermen. It rnakes only a reference to
the "border incident of 4/3/95 Dambore".
24.359 The other relevant document appears on pages 225 to 228 and is a report by the
Commandant of the Gendarmerie Brigade at Fotokolthat bears three differentdates:
15, 17 and 20 March 1995. This seems to relate to the same incident of 4 March
1995 mentioned in the legend. The first paragraph of the preamble indicates that
there was uncertainty conceming the location of "the incident", and that it was not
clear to the author whether it took place on Nigerian territory or Cameroonian
territory. The report states that an inspection at the relevant locations was
undertaken by representatives from the Nigcrian and Carncroonian authorities on
14 March 1995.
24.360 The conclusions of the report, labelled "Constatatioiis", are very reuealing. The
author appears to endorse the Nigerian report thar the "incident" took place on
Nigeria11territory. Hc goes on to suggestthat another comniission be appuinted to
"determine the exact site of the incident", and at the same time inform the
Cameroonian fishermen of Dambore of their territorial lirnit. These "observations"
suggest that the author of the report did not feel that there was any evidence worth
mentioning which placed the "incident" in Cameroon, and indeed seems to
acknowledgethat it was the Cameroonians who had not stayedwithin their border.
Significantly, this report was written before the report appearing on page 214,
which was dated 22 March 1994. By the time the latter report was written - by the
same author - the author is able to state that the incident took place in Lelenowa,
in Nigeria. 24.361 Of great interest is the sketch map on page 228, which relares to the report on
pages 225 to 227. This sketch map indicates that Damhre itçelf is in fact in
Nigeria.424
24.362 It is impossibleto see in Cameroon'saccount of this incident. and its supporting
documentation, any circumstance which could give rise to international
I responsibilityon Nigeria's part,and Nigeria denies that the incident girresrise to
I
any such responsibility. Apart from problernsarising from Cameroon's failure
properlyto identifythe locationto which Cameroon is referringand the irrelevance
of one of the principal documents reliedon by Cameroon, it is apparent that the
incident involves no wrongful acts by persons whose conduct is attributable to
Nigeria. The incidentinvolvedessentiallya disputenionglocalfishermen,and did
not take place inCameroonbut in Nigeria. Rather than showingany incursionby
Nigeria into Cameroon territory, the incident relates to evenk iaking place on
Nigerian territory, over the enquiries into which the local Nigerian and
Cameroonian authorities co-operated.
!
42. WazaPark -09.04.1980
24.363 The legendon page 229 of OC 1 reads at item 7:
"Murder of Mr. Mahamat ABAKOURA,Park Ranger, by Nigerian
poachers - MessrsBOUKARMAIBOUNDOUGA,MADUDAWA and
ALBEYINE NDJIDA"
24.364 The allegationmerely refersto "Nigerian poachers". In support ofthis allegation,
Cameroonrefersto a Note dated 21 August 1980. This appears to be the Note on
pages 231 and 232, from the Cameroonian Minister of Foreign Affairs to the
424
Thc map alsu indiçaes a subvidiarylocation wilhin Car"POINnlTe péch(Villa~arnboie)". Nigerian Embassy in Yaoundé.This Note suggesisthat the murder was perpetrated
byone person, who is described as a "citizen" ("resortissant").
24.365 Cameroon has failed to show any basis on which the conduct of "Nigerian
poachers" or a "citizen", by which is presumably meant private individuals, is to
be attributed to Nigeria (as to which see above,paragraph 24et seq.)Nigeria
accordinglydenies any internationalresponsibilityarisingout of the incident alleged
by Cameroon.
43. Djibrili,Zanga & Assigassia-05.12.1980 & 07.12.1980
24.366 The legend on page 235 of OC 1 reads at iteni 8:
"5.12.1980 Expedition againsi Carneroonianherdsmen led hy M.J.
GAZUM (Divisional Police officer of Gwom in
Nigeria), which seized300 cattle.
7.12.1980 Repetition of the same operation at DJIBRILI by an
expedition led by ALI DAPSHiMA (hlice officer of
BAMA)."
24.367 One of the places referred to, Assigassia, isin factpartly within Nigeria.
24.368 In support of the allegation, Cameroon refers to a note from the Governor of the
North dated 22 May 1981. This note refers to the incidents, stating that the
incursions had been carried out by the Nigerian police under the "pretext" that
cattle which bad been stolen in Nigeria wereto be found in those villages. The
note also mentions that the Sub-Prefectof Koza lodged protests with the Nigerian
Police, "who recognisedtheir error and apologised". 24.369 (1) This document, which is dated overfivemonths after the dateof the alleged
incident, does not specify the source of the information concerning the
incident contained withinit.
(2) No explanationis given as to why the author of this noteconsidered that the
search for stolen canle was a "pretext".
(3) According to the note, the matter was taken up locally, and the local
Nigerian policeofficer issaid to haveapologised for the incident.
24.370 Taking the Cameroonian allegations at face value, these incidents involved
essentially localised cattle-theftproblems. The matter was- appmpriately - dealt
with locally, andsettled. Cameroonhas providedno evidence ofany protest about
the incidentshavingbeen madeby Cameroon to the Nigerian Government, andthe
incidents are not included in MC 362 or MC 363 (which listed alleged Nigerian
frontier violations), thus reinforcing the view that the incidents are secn by
Carneroonas involvinglocal problemssatisfactorilydeait with at thc local level.
I 24.371 Moreover,the incidentsare alleged to have occurred in 1980, i.e. nearly 20 years
ago. Giventhis passage of time, and the failureof Cameroon to lodge any protest
with the Nigerian Government, any claim inrespect of these incidentsis, forthe
reasons given in paragraphs 24.52 to 24.54, now barred by lapse of time.
24.372 In these circumstances,Cameroonhas failedtoestablishany basis on whichNigeria
I
maybe held internationallyresponsible for thealleged incidents,and Nigeriadenies
any such responsibility. 44. Dawaza -04.05.1981
24.373 The legend on page 240 of OC 1 reads at item 9:
"Armed band coming from Nigeria carries off 84 cattle and is
intercepted at ZINA (MAZERA Canton at KOUSSEIU). Following
the battle, we count:three (03) dead and five (05) arresrs on the
Nigerian side, and one (01) dead on the Cameroonianside."
24.374 The allegationmerely refers to an "armed band coming from Nigeria". There is
l nothing to indicate thatthe membersof this group were anythingother thanprivate
. . individuals. Furthemore, there is no indication that they were citizens of any
particular country, including Nigeria.
i
24.375 Furtherniore, it is evident froni the sketmap on page 240 that hoth Dawaza
(actually labelled "Dawaya")and Zina are located very near Cameroon's border
with Chad, and nowhere near Cameroon's border with Nigeria. In the
circumstances, it is not clear how Cameroon are able determine that the armed
band originated in Nigeria. 1
24.376 In support of its allegation, Cameroonreferred to a note from the Governorof the !
North dated 22 May 1981. This appears tu be the document at pages 242 to 244
which is the same document as that appearing at page 237 in relation to the
previous incident. The seven-linedescription of the present incident also fails to
indicate the nationality of the members of the amed band. Furthermore, no
indicationis given of the source of the informationconceming the incident.
24.377 Cameroon has failedto showanybasis on whichthe conductof this "armedband",
apparentlya group of privateindividuals, isto be attrihtoeNigeria (asto which
see above, paragraph 24.55 et seq.). Nigeria accorrlingIydenies any international
responsibi~it~arising out of the incident allbyeCarneroon.24.378 Moreover, the incidentsare alleged to have occurred in 1981, i.e. some 18 years
ago. Given this passageof time, and the failure of Carneroonto lodge any protest
with the Nigerian Govemment, any claim in respect of these incidents isl for the
reasons given in paragraphs 24.52 to 24.54, now barred by lapse of time.
Cameroon, it is to be noted, has not includedthese incidentsin MC 362 and MC
363 (whichpurport to list Nigerian frontier violations).
24.379 In the circumstances asthey appear from the allegationsmade by Cameroon, and
in particular sincethe actsin questionare not attributableto Nigeria, andany claim
in respect of them is in any event barred by lapse of time, Nigeria accordingly
denies any international responsibility arising out of the incident alleged by
Cameroon.
45. Karailchi - 07.02.1990
24.380 The legendon page 245 at OC 1 reads, at item 10:
"Arrest of two (02) Cameroonian gendarmeswho were then taken to
MADAGALI(NIGERIA)before successfullyescapingto Cameroon. "
24.381 This allegation does not specify who is supposedto have actually arrested the
gendarmes, or give any details as tothe circumstancesof their alleged arrest.
24.382 In support of its allegation, Cameroon refers to a note from the Head of the
"CENER Centre" dated 25 February 1993. It would appear that the document
being referred to is that exhibitedon page 247, although the dateon the document
is not clear. That document refers to the alleged incident, stating that the
gendarmeswere apprehendedby the "populationof the village of ~aranchi-~uba",
a village within the Prefectureof Madagali -i.e. within Nigeria. The note states
that the gendarmes "had been pursuing a Nigerian cyclist as.fa. as the border village of Karanchi", and that "in retaliation the villagers intercepted them".
However, the gendarmes, "profiting from the complicity. of the Chief of the
village", were able to escape.
24.383 Thus the note:
(1) indicates thatthe gendarmes were apprehendedby private citizens, and thus
there appears to be no basis upon which Nigeriacould be held responsible
for this alleged incident;
(2) does not saywhere the gendarmeswere intercepted, andin any casedoes not
state that they were interceptedin Karanchi;
(3) in so far as the statement that they were app~hended by rhe villagers of
Karanchi-Wvba implies that that was where they were intercepted, that
village is in Nigeria and no violation of Cameroon territory was involved;
and
(4) appears to indicate that the Chiefof the Nigerian villagewas instnimental in
ensuring that the gendarmes were able to retum toCameroon.
24.384 The section of Annex OC 1 relating to "Karanchi"contains tw further documents
which Cameroon has not referred to in the legend. One of them, at page 249, is
a note ofa telephone message dated8 February 1990 addressed to "the Director
General". This messagestatesthat the gendarmes had been apprehendedonly after
they had "strayedacross the frontier". Thus, the entire incident took place within
Nigeria, and the Cameroonian gendarmes had in fact committed an incursioninto
Nigeria. Although the message statesthat "Nigerian soldiers" were involved,the
message is superseded by the note of 28 Febniary 1990, by which date it was
evident that onlyprivate citizens were involved. 24.385 The other document, exhibited atpage 248, is a message fmm the "Director
General CENER" to the "Headof CER, Maroua". The date içnot Iegible.and
aithoughno source is mentioned, its contents appearto be based onthe message
dated8 February 1990appearingat page249.
24.386 Again, Cameroon hasproduced noevidencethat it everprotestedto the Nigerian
Govemment about this incident,nor is it included in MC 362 or MC 363
(purprting to list Nigerian frontier violations). In,n the factças presented
by Cameroon, itis clear that therewasno violationof the frontierby Nigeria,but
rather a violationof Nigerian territoryby Cameroon.
24.387 In any event,the actscomplainedof wereallegedlytheacts of villagersand not of
the Nigerian authorities.Cameroonhas failed to show any basis on which the
conduct of private villageis to be attributedto Nigeria (as towhich see above,
paragraph24.55 et seq.).
1 24.388 For the foregoing reasons, Nigeria accordingly denies any international
responsibilityarisingout of the incidentallegedby Cameroon.
24.389 The only border incident which hasbeen provedby Cameroon'spresentationof
evidenceis an incursionby Cameroonian gendarmesintoNigeria. The incidentis
accordinglythe subjectof a NigerianCounterclaim:seeparagraph25.75 below.
46. Bourrha - March1980
I
24.390 The Iegendon page250 of OC 1 readsat item 11:
"Clashes between Cameroonianand Nigerian border villages as a
result of the creation by Nigeriancitizens,on Cameroonianterritory,
of agriculturalplantations. Traders held ransomty the Nigerian
security forceswhen theywentto the marketat MUBI."24.391 The allegationsuggeststhat the clashes betweenborder villagesand the creationof
plantationswerethe responsibilityof privatecitizens. In these circumstances,there
wouldappear to be no basis upon which Nigeria could be held responsiblefor the
alleged incident.
24.392 Furthemore
(1 Cameroon has not supplieda precise date for this incident;
(2) no explanationis given concerningthe nature of the "clashes";and
(3) Mubi is inNigeria, not Cameroon (see, for example, map extract on page
250).
24.393 In support ofits allegation, Cameroonrefers totwodocuments. The rirsis a Note
dated 10 March 1980. This is the document appcaring on page 252, which is a
Note from the CarneroonianErnbassyto the Nigcrian Ministryof External Afhirs.
The note Statesthat it is written inresponseto a Note dated 4 March 1980from the
Nigerian Ministry of External Affairs, conceming a "Land dispute" between
Nigerians in the Mubi Local Governement area and the Traditional chief of
"Baurha".
1 the matter at hand is referred to as a "Land dispute": thereis no indication
of "clashes";
(2) the matter was apparently raised in the first instance by Nigeria, not
Canicroon; and (3) the Cameroonian Note contains no referenceto the creation of agncultural
plantations in Cameroon by ~i~erians, or traders king held to ransom.
24.395 The seconddocumentreferredto is an "InformationNote" dated 25 February 1980.
This is apparently the document exhibitedon page 253. There is no indicationas
to the author of the document. The note states that aacording to a "reliable
informer" certain Nigerianshad complained about taxes that they hadto pay to a
Cameroonianofficial,the Lamidoof Bourha, and in doingso had told theGovernor
of Yola in Nigeria that the land where they cultivated their food was Nigerian
territory. This apparently led to a visit to the spot by a Nigerian local government
representativeand others. They investigatedthe position of the boundary, which
accordingto the peoplc of Bourha was representedby "a stone basin".
24.396 This document is irrelevant to the incident in relationro which it iscited since it
does not refer toany incident whatsoeveras having occurred in March 1980 - the
nore actuallypredates that month.
24.397 Moreover:
(1) itdoes not referto any clashes between Nigeriansand Cameroonians;
(2) there is also no reference init to traders being held to ransom at Mubi.
!
24.398 Yet again, Cameroon has produced no evidence that it ever protested to the
Nigerian Govenunent about this incident,nor is it includedin MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.399 Moreover, the incidents are alleged to have occurred in 1980, Le. some'19years
ago. Given this passagc of time, and thefailure of ~ameroon to llodgcans protest
withthe Nigerian Government, any claim in respect of these incidents is, for the
reasons given inparagraphs 24.52 - 24.54, now barred by lapse of time.24.400 In the circumsiancesas they appear from the allegations made by Cameroon, and
in particular sinceclashesbetween villagesare not attributable to Nigeria,sincethe
evidence iseither inadequateor u~eliabie (or both), sincethe only conduct alleged
on the part of Nigerian authorities is conduct taking place within Nigeria (in the
Nigerian villageof Mubi), and any claim in respectof them is in any eventbarred
by lapse of time, Nigeria accordinglydenies any internationalresponsibilityarising
out of the incident allegedby Cameroon.
47. Dourbeye - 06.05.1985
24.401 The legendon page 250 of OC 1 reads at item 12:
"Overfiightover Cameroonianterritory by a Nigerian bomber."
24.402 In support of itsallegation, Carneroon refers ta Note dated 22 May 1985. This
Note, from the Cameroonian Ministryof Foreign Atiairs tothe Nigaian Embassy
in Yaoundé,appears on page 257. Although itcontains a brief mention of the
alleged incident, it provides insufficient evidence tofound a claim of State
responsibility. It barely containsanymore informationconcerningthe incidentthan
that which is supplied by Cameroon onpage 250. Thus, for example, the source
of the informationis not provided,nor are the reasonswhy the aircraft wasthought
to be Nigerian, nor are any details about the aircrafitsRightpath, altitude,etc.
24.403 Cameroon did not regard this incidentas sufficiently important to be worth
includingin MC 362 or MC 363, listing alleged Nigerianfrontier violations. This
is consistent with the tenorof the Note of 22 'May 1985 from the Cameroonian
Ministry of Foreign Affairs, whichdoes not in terms "protest" igainst the alleged
overflight,and thefact that Cameroonhas providedno evidcncethat that Notewas
cver followedup by later diplornaticaction. The Note, in effect, was againa mere
papet protest. As suçh it is not sufficient to kccpalive indefinitclya claim in relation to the matter to which it relates. Given thatthe incident is alIegedto have
occurred in 1985, i.e. 14 years ago, it has, for the reasons given in paragraphs
24.52-24.54, now become barred by lapse of time.
24.404 For the foregoingreasons, Nigeriadenies anyinternationalresponsibilityarisingout
of the incident allegedby Cameroon.
24.405 The legend on page 250 of OC 1 reads at item 13:
"Incursionsby three (03) Nigerian hunters."
24.406 There is no indication that these "Nigerian hunters" wcre anything other than
private citizens.In these circumstanccs, there would appear to hc rio bais upon
which Nigeriacould be held responsible forthis allegedincident.
24.407 In support of its allegation, Cameroon refers to a document dexribed as a note of
protest from the Prefect of Benouéto the Secretary of the Governrnentof Mubi.
It appears that the document appearing on page 259 and 260 is being referred to,
although it is not at al1clear on the face of the document who precisely is the
author of that document. Although the note refers to the incident,alleged by
Carneroon, no source is given for the informationconceming that incident. It is
clear from the body of the documentthat it is not a "protestnote" at all. The final
paragraph indicates that the purpose of the note was to request the ~i~erian
authorities to apprehend the "guilty parties", and hand them over to Cameroon.
Indeed, this indicatesthat Cameroon did not consider Nigeria to be responsiblefor
the incident.24.408 A further document, not referred to by Cameroon, appears in the section of OC 1
relating to Doumo. This is an anonymous "InformationBulletin" dated 3 Febmary
1982, appearing on page 261. Although thisdocument also refers to the incident,
it serves only toonfirm that the hunters involveciwere private citizens, the actions
of whom cannot be attributed to Nigeria (as to which see above, paragraph 24.55
etseq.).
24.409 Once more, Cameroon has produced no evidence that it ever protested to the
Nigerian Governmentabout this incident, nor is it included in MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.410 Moreover, theinciderltis alleged to haveoccurred in 1982, i.e. some 17years aga.
Given this passage of time, and the failure of Cameroon to lodge any pmtest with
the Nigerian Governinent, any claim in respect of theçe incidents is, for the reasons
given in paragraphs 24.52 - 24.54, now barred by Lapseof time.
24141 1 In the circumstances as they appear from the allegations made by Cameroon, and
in particularince the acts in question are not attributable to Nigeria, and any claim
in respect of them is in any event barred by lapse of time, Nigeria accordingly
denies any international responsibility arising out of the incident alleged by
Cameroon.
M. Mbillassi - 16.10.1962
24.412 The legend on page 262 of OC 1 reads at item 14:
"Intimidation of Cameroonian peasants by a Nigerian policeman and
eight (08) Dogaris froin the T~midateof MALABOU(Nyeria) over
a territorial dispute (pasture and fields of millet in the Cameroonian
irrigated areas". 24.413 Before even examiningCameroon's evidence, it must be noted that Cameroon's
allegationconcems an incidentsaid to havetakenplace over36 yeais ago, only two
years after Nigeria's independence. There is no evidence that Cameroon has
protestedconceming this incidentat any time. In these circumstances,and for the
reasons given in paragraphs 24.52-24.54, any claim in respect of this alleged
incident is now barred by lapse of time.
24.414 In any event, Cameroon's evidence is entirely unsatisfactory. In support of its
allegation, Cameroon relieson two intemal documents. Thefirst is a letter dated
20 April 1962 from the Prefectof Benoué. This appears to be a referenceto the
document which appears on pages 264 and 265. However,the date on the face of
the document is incomplete. That note acknowledgçs that unspecified
"intimidations", occurred against the background of a "permanent boundary
dispute". The seconddocument referred to, dated 8 May 1977, appars on pages
266 t 273. This documentcontains no referenceto the allegwlincident of 1962.
I
I
I 24.415 Cameroonhas failedto substantiateanybasis for international responsibilityon the
i
pan of Nigeria in respect of what is a manifestlystale claim. concerning.what is
essentially alleged to have been a local land dispute, and supponed by wholly
unsatisfactoryevidence. Nigeria denies any such responsibility ansing outofthis
alleged incident.
50. Ouro Dalam - 16.05.1981
24.416 The legend on page 262 of OC 1 reads at item 15:
"Attack on the village by Nigerian bandits. ~urder of Mr. SANOU
BOUDJI. " 14.417 The fact that Cameroon refers to the attackers as"bandits" suggeststhat they were
in fact'private citizens, acting independently of any authority.dingly, there
appear to be no grounds upon which to attribute the incident to Nigeria.
24.418 In support of its allegation, Cameroon refers to two documents. The fialetter
dated 10 July 1982 from the Prefect of Benoué. This appears to be the document
found on pages 275 and 276. However, the letter, which was written 14 months
after the alleged incident, only refers to the incidentin passing, and gives no source
for the information conceming the incident.
i
24.419 The second document referred to by Cameroon in the Legend is a lener from the
!
same Prefect dated 2 Deceniber 1981. Cameroon has failed tu include a copy of
this lett-rwhich wasdated sevenmonths after the alleged incide-tinthis section
l
1 of Annex OC 1. However, it appears that the document exhibited on page 283 is
! being referred to. Paragraph 2 of the letter refers to the alleged incident, but only
in passing. It gives the date of the incidcnt as 15 May 1981, and Statesthat the
! attackers onlyprobably came from Nigeria.
i
24.420 There are two further documentscontained in the sectionrelating to "Ouro-Dalam"
which were not referred toby Cameroon in the legend.They appear on pages 277
and 278.
However, neither of these intemal documents make any reference to
"Ouro-Dalam", nor to any events said to have taken place in 1981.
24.421 Cameroon has produced no evidence that it ever protested to the Nigerian
Govemment about this incident, nor is it included in MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.422 In any event, Cameroon has failed to show any basis on which the conduct of
"bandits" is to be attributed to Nigeria (as to whichsee abme, paragiriph24et5
seq.).24.423 Moreover,the incident is allegedto haveoccurred in 1981, i.e. some 18 years ago.
Given this passage of the, and the failure of Cameroon to lodge any protest with
the Nigerian Government,any claim in respect of this incident is, for the reasons
given in paragraphs 24.52 to 24.54, now barred by lapçe of time.
24.424 In the circumstancesas they appear from the allegations made by Carneroon, and
in particular sincethe evidencecited in supportof the allegatisinadequate,since
the acts in question are not attributableto Nigeria, and anyclaim inrespect of them
is in anyeventbarred by lapse of time, Nigeria accordinglydenies any international
responsibilityarising out of the incident allegedby Cameroon.
51.Ouro-Garga -16.11.1984
24.425 The legendon page 279 of OC 1 reads at item 16:
"Arrest of three (03) customs officers who had crossed the border at
OUROGARGA,in pursuit of a smuggler."
24.426 In support of its allegation, Cameroon refers to a Note dated 27 Apnl 1985. This
Note, from the CameroonianMinistry of Foreign Affairs to the Nigerian Embassy
inYaoundé,appears on page 281. The Note refersto the incident, which is said
to have occurred at "Houro Garba". Contrary Io the allegationon page 279, the
Note states that only one of the customs officers was arrested; no explanation is
given as to why only one of the three officerswas arrested. The Note, dated over
fivemonths after the alleged incident, gives onlya cursory accountof me incident,
and does not refer to any direct evidence forthe informationcontained in it.
24.427 Nigeria drawsattention to the fact that as indicatedon tmap extracton page 279
of OC 1, Ouro Garga is on the eastern edge of an area which, in the rainy season,
is subject to inundation on eithcr side of the River Mao Tiel, which riveris the border in that area. Consequently thereare tirnes when the precise line of the
boundary is obscuredby rising water levels.
24.428 Cameroon did not regard this incident as sufficiently important to be worth
including in MC362 or MC 363, listing alleged Nigerianfrontier violations. This
is consistentwith the tenor of the Noteof 27 April 19(fivmonths after the date
of the alleged incident)from the CameroonianMinistry of Foreign Affairs,and the
fact that Cameroon has provided noevidence that thatNote was ever followedup
by later diplomatic action. The Note, in effect, was once again a mere paper
protest, and as such is not sufficientto keep aliveindefinitelya claim in relationto
the matter to which it relates. Given thatthe incident is alleged to have occurred
in 1984, i.e. 15 yearsago, it has, forthe reasonsgiven in paragraphs24.52-24.54,
nowbecome barred by lapse of tirne.
24.429 For the foregoingreasons Nigeriadeniesany internationalresponsibilityarisingout
of thc incident allegedby Cameroon.
52. WouroDjaoumOumarou-27.04.1981
24.430 The legend on page 279 of OC 1 reads at item17:
"Abductionby the (03) Nigerian policemenof Mr. Alhadji BOUBA
GOL (Cameroonian) who was then taken to GURlN (Nigeria) and
imprisoned there. Following vehement protestsby the Cameroonian
authorities, the Nigerian authorities recognisedthe facts, released the
victim, and gavehim backthe 340 nairas that hadbeen extortedfrom
hm, this by letter No. FLG/S:69/Vol 1/54 of 28.05.1981. "
24.431 The name "WouroDjaouro Oumarou" does not appear on the map,extract shown
on page 279, and Nigeria is not awareof its location. It would appear that the
large "17" superimposed on the map merely indicates the lccation of Touroua (which is also the name of the district in which, accordingto Cameroon, thetown
is located).
24.432 In support of its allegation, Cameroon refers to a note by the Prefect of Benoué
dated 2 December 1981. This document appearson pages 283 to 285, and refers
to the incident at page283. However,the document is dated seven months after
the incident, and contains no details concerning the source of the information
contained within it. Furthermore, this note indicates thatthe background to the
alleged incident concemed the domestic affairs of the arrested man. whose two
wiveshad hadan argument. The note also claims thaton 28 May 1981,a Nigerian
officialhad written to Cameroonian officials, denouncingthe arrest and promising
to take disciplinary stepsagainst the policeman involved.This suggeststhat evcn
if the arrest did take place, it was not sanctionedby the Nigerian authorities.
24.433 Once again, Cameroon did not regard this incident as sufficientlyimportanttobe
worthincluding inMC 362 or MC 363, listing allegcdNigcrian frontier violalions.
Nor has Cameroon produced any evidence that it ever protested to the Nigerian
Gwernrnent about this incident.
24.434 The incident itself clearly involvedthe domestic affairs ofa local individual. The
detaiied circumstances surrounding the incidentare not at al1 clear from the
evidence made available by Cameroon, and while it appears that it may have
involved one or more Nigerian officials, the precise circumstances of their
involvementhave not been made clear by Cameroon. There is, in any event, a
strong suggestion that the acts in question were not authorised by the Nigerian
authorities. Overall, this once more appearsto havebeen an essentialiyIocalaffair
with its origins in a private dispute, which was satisfactonly settled at the time
betweenthe local Nigerianand Cameroonian authorities.
24.435
Moreover,the incident is allegedto have occurred in 1981,i.e. some 18 years ago.
Given this passage of time, and the failure of Cameroon to lodge anyprotest with the NigerianGovenunent, any claim in respect of this incident is, for the reasons
given in paragraphs 24.52 to 24.54, nowbarred by lapse of time.
24.436 For the foregoingreasons, particularlythe essentiallyprivateand local characterof
the incident; and the fact that any claim in respect oitis now barred by lapse of
time, Nigeria denies that the incident alleged by Camerooo gives rise to any
international responsibilityon the part of Nigeria.
Beka -08.09.1981
The lcgendon page 279 of OC 1 reads at item 18:
"Nigerian citizcns notrecognisingthe authorityof the Lamido who is
trying to settle a dispute withititheir comrnunitinCameroon."
This allegation concernsthe activities ofprivatc citizens. 'ïhereisno basis upon
which their failureto "recognise authority"can be attributed to Nigeria.
In support of ifs allegation, Cameroonrefers to a note from the Prefect of Benoué
dated 2 December 1981. Thisis a documentappearingon pages 287 to 289. It is
the same document as thatwhich appeared on page 283, in relation to the previous
incident. Thepresent incidentis referredto on page288 of the note. Although the
relevantNigerian citizenswere resident in Beka, there is no indicationas to where
the "incident" actually took place. Beka is referredto as a "Nigeriancolony".
No source is given for the informationcontained in this document, which is dated
three months after the "incident".24.441 Cameroon has produced .no evidence that it ever protested to the Nigerian
Government about this incident, nor is it included in MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.442 In any event, Cameroon has failedto show anybasis on which the conducrof the
Nigerian citizens in question is to be attributed to Nigeria (as to which see above,
paragraph 24.55 et seq.).
24.443 Moreover,the incidentis allegedto haveoccurred in 1981,i.e. some 18 years ago.
Given this passage of time, and the failure of Cameroon to lodgeans protest with
the Nigerian Government, any claim in respectof this incident is, for the rasons
given in paragraphs 24.52 to 24.54, now barred by lapse of tirne.
24.444 In the circumstances as they appear from the allegationçmade by Cameroon, and
in particular sincethe acts in questionare not attributableto Nigeritianydclaim
in respectof them is in any event barred by lapse of time, Nigeria denies any
international responsibilityarising out of the incident allegedbyCameroon.
24.445 The legend on page 290 of OC 1 reads at item 19:
"Exploitationof ["roniers"] palm forestry in Cameroonianterritory by
Nigerian Citizens."
24.446 AIthoughthe nature of the "exploitation" is not specified, Carneroonstates that it
was carried out by Nigerian citizens, i.e. Nigerians actingas private individuals.
In these circumstances, there is no basis for any claim that Nigeria is responsible
for the alleged incident.24.447 In support of its allegation Cameroon refers to a number of documents It is not
necessary to examinethese in detail or to point out numerous inadequacies in them
as evidence of the allegation made by Cameroon, since none of the documents
providesevidence of activity by other than private individuals,or gives reasonswhy
their conduct should be attributable to Nigeria (as to which seebove, paragraph
24.55 et seq.).
24.448 Furthemore, Cameroon has produced no evidence that it ever pmtested to the
Nigerian Govermnentabout this incident, nor is it included in MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.449 Finally, the incident is alleged to have occurred in 1979, ie.yearsago. Given
this passage oftime, and the failure of Cameroon to lodge any protest with thc
Nigerian Government, any claini in respect of this incidentis, for thereasons given
paragraphs 24.52 and 24.54, nowbarred by lapse of tiine.
in
24.450 In the circurnstances as they appcar from the allegations made by Carneroon, and
in particularince the acts in question are not attributable to Nigeria, and any clairn
in respect of them is in any event barred by lapse of tirne, Nigeria denies any
international responsibilityising out of the incident allegby Cameroon.
55. Kontcha (Zone of Lake Typsan), Bondjokoura - 28.03.1993, 17.03.1987 &
04.05.1988
24.451 The legend on page 290 of OC 1 reads at item 20:
"Creation of a Nigerian village and an emi-immigration post by the
Nigerian authorities on the bank of the river TYPSAN, about sixand
a half (6.5) kilornetres from the Cameroon-Nigcria border, in
Cameroonian territory, and aboutone (1) kilometre from the town of
KONTCHA. This erni-iiiirnigrationpost, witha Nigerian customspost attached, still exists in Cameroonianterritory. Repeatedwerflights of
Cameroonian territory (Kontcha area) by combat aircraft of the
'Nigerian AirForce'."
24.452 Although the Legendpresents this as a single paragraph,the factthatthre deates
are indicated on page 290 in relation to this location suggeststhat there are three
separate incidentsbeing referredto.
24.453 Conceming the creation of the emi-immigration post, Cameroonhas, for the
reasons explained above in paragraph 24.260 et seq. (and in paqraphs 19.73-
19.76), misunderstood and misapplied the tems of the Thomson-Marchand
Declaration 1929-1931 which delimit the boundary in the area of Tipsan and
Kontcha. Asexplainedin thoseearlier paragraphs,the Nigeria-Cameroonboundary
in this area followsthe course of the River Tipsan whiruns bewen ïlpsan and
Kontcha, and the Nigerian irnmigration/emigrationcontrolpost at Tipsan on the
Nigerian side of that boundary. , The crcation by Nigeria of an
immigration/emigration.post on its territory at Tipsan can in no way afford
Cameroon any basis for claiming that Nigeria's international responsibility is
therebyengaged.
24.454 As regards the separate incidents said by Cameroon to have occurred in this area
I on 17 March 1987 and 4 May 1988, they both concem alleged overflightsby
Nigerian aircraft. In connection with these overllights Cameroon refersin its
legend to two Notes from the Cameroonian Minister of Foreign Affairs to the
Nigerian Embassyin Yaoundé.The first, appearingon page 306, is dated10 April
1987, and refers to an overflight of Kontcha which alIegedly took place on 17
March 1987. The Note does not give significantdetails as to the circumstancesof
the alleged overflight. Furthemore, the precise locationof the "werllight" has not
been identified. Although the village of Kontcha is referred to,has ken seen
elsewhere that Cameroon's conception of the location of the boundaty anof the
geographicalextentof Kontchais confused, evengoing so far astoconsider Epsan to be part of Kontcha. Accordingly,in the absence of specificflight details, itis
unsafe to assume that an alleged overliight of Kontcha involved flight over
Cameroonian territory.
24.455 The second Note, dated 1 June 1988 (appearing on page 308), refers to another
overîlightby "unidentified"aircraft of the Nigerian armed forces on the night of
314May 1988 "in the area of Kontcha". This, on its face, is even more vagueas
to the location of the alleged overîlight,and even greater caution is called for in
assumingthere to havebeen any overîlightof Cameroonterritory.
24.456 Neither Note identifiesthe source of the information containedin itor otherwise
provides significant or direct evidence in support of Cameroon's allegations.
Cameroon has submitted noevidenceto showthat either Note wasfollowedup later
by further diplornaticaction: they remain 'paper protests'.
24.457 For the reasons given, Cameroon'sallegationconcemitg the establishmentof the
Nigerian Immigration/EmigrationPost at Tipsanis manifestlyunfounded,based as
it is on a serious misunderstandingas to where the boundary in that area mns.
Tipsan is in Nigeria, and thecreation there of a Post by Nigeria is an exercise of
Nigerian sovereignty in that location, and can& give rise to any international
responsibilityon the part of Nigeria.
24.458 Asregards the allegedoverflyingincidentsof 1987and 1988, it is notable thatthey
are not included in MC 362 or MC 363 (purporting to list Nigerian frontier
violations). Given Cameroon'sconfusion as to the locationof the boundary in the
area of Kontcha, the proximity of Kontcha to theboundary, and the evidence of
Cameroon's sometimes expansive notion.of the extent of Kontcha village (see
above, paragraph 24.264(2)), allegations, now over 10 years old, of overflightsof
Cameroon territory in the neighbourhoodof Kontchahaveto bc treated with great
caution. In short, Cameroon has failed to adduce adequate evidenceto establish any internationalresponsibilityon the part of Nigeria in respect of the alleged
incidents.
I
24.459 For the foregoing reasons Nigeriadenies that any of the incidents alleged by
Cameroongive rise to international responsibility onthe part of Nigeria.
56. hrofi, Kanyaka, Hore Taram Foulbe - Multiple Occurrences
24.460 The legendon page 309 of OC 1 reads at item21:
"Effectivecreationof a Nigerianvillageon Cameroonianrerritory, by
the Nigerian authorities. Illegal constructionof Nigcrian schools in
1993,in theCameroonianvillagesof KANYAKA andHORETARAM
FOULBE. "
24.461 (1) No indicationis givenof when the "Nigerianvillage" was supposcdto have
been "created".
(2) Cameroonrefers to three separatevillagesas the "locality"of the incident,
but in the legend it refers to the "effectivecreation" ofnly one viHage,
withoutidentifyingwhichof those three (if any)is king referredto.
(3) The map extracton page309 showsKanyakato be inNigeria.
(4) The word"effective"used in the legend is rather vagueand suggests that
Cameroon does not consider that Nigeria was directly responsible forthe
creationof the village.
. .
. .
24.462 In supportof its allegation, Cameroonrefersto a singledocument,which is a note
dated 7 June 1995 from the Chief of the village of Dorofito the Chief of the
Districtof MayoDarle. Thiswouldappear tobe the document exhibited on page 311. However,it is not clear from theface of thardocument whaioffice theauthor
held, if any. The note is difficultto understandin placesHmvever,it is clear that
there is no referencein the note to the three places referrto in the allegationon
page 309 (although the word "Dorofi" has been added in manuscript at the top of
the document). Althoughthe note seems to refer to constructionwhich took place
on Cameroonian territory, thereis no referenceto a villagehavingbeen "effectively
created" by the Nigerian authorities. There is also no referencewhatsoeverto the
construction of any schools.
24.463 The evidence in support of Cameroon's allegation is wholly inadequate to
substantiate it. It comes nowhere near the standardof proof needed to establish
international responsibility on the pan of Nigeria, and Nigeria denies that
Cameroon'sallegationgives rise to any such responsibility.
57. Atta - 07.07.1985
24.464 The legend on page 312 of OC 1 reads at item 22:
"Arrest of two (2) Nigerian policemen (Messrs EmmanuelATEB and
SUNDEY MAME), who had in their possessiontwo handgunsof the
'SAVAGEt'rademark, model 69, and no. 299045."
24.465
In support of its allegation, Cameroonrefers toa Note dated 14 September 1985,
from the Cameroonian Ministry of Foreign Affairs to the Nigerian Embassyin
Yaoundé,which appears on page 314. The note refers tothe arrest. However,it
merely states thatit tookplace in the "areaof Atta". There isno indicationof the
precise location of the arrest, other than the claim that it took place in
"Cameroonian territory". However,as is evident from the map extract on page
312, Atta is near theborder. Therefore,several places in Nigeria are "inthe area
of Atta". 24.466 Additionally,this single document producedby Cameroon, which is dated over two
months after the alleged incident, gives nodetailsof the sources of irsinformation,
and gives no information as to the circumstances surrounding thearrest.
24.467 Cameroon did not regard this incident as sufficiently important to be worth
includingin MC 362 or MC 363, listing allegedNigerian frontier violations. This
is consistent with the tenor of the Note of 14 September 1985 from the
Carneroonian Ministryof Foreign Affairs,and the factthatCameroon has provided
no evidencethat that Note was ever followed upby later diplomatic action. The
Note was in no sense a protest. It did not use that term, it did not "reserve
Cameroon's rights", and in.substance it was merely a notificationto Nigeria that
an arrest had takenplace. It is not sufficiint to keep alivcinrclatinto the
matter to which it rcfers. Given thatthe incident is allegai to have oxurred in
1985, i.e. 14 years ago, it has, for the reasons given in paragraphs 24.52-24.54,
nowbecome barred by lapse of time.
24.468 For the foregoing reasons Nigedenies any international responsibilityarising out
of the incidentallegedby Cameroon.
58. Sam FaamNtim - January1988
!
24.469 The legend on page 312 of OC 1 reads at item 23:
"Some Nigerian citizens (Messrs. Abel BADU; Phiup FUNYIN;
Nicodemus LUNCHI; Jonathan NENWEL; Abdulai BADU;Georges
BADU;JonathanFENYA;SimnwiBAVEN;JosephJUMBU)illegally
create plantations in Cameroonian territoryand destroy Cameroonian
plantations along the riverMANTUNG."24.470 The allegation specifically refers to Nigerian citizens, i.e. Nigerians acting as
private individuals. In these circumstances, there is no basis for attributing their
actions to Nigeria so as to make Nigeria responsible for the incident.
24.471 In support of its allegation Cameroon refers to a number of documents. It is not
necessary to examinethese in detail or to point out numerous inadequaciesin them
as evidence of the allegation made by Cameroon, since none of the documents
providesevidenceof activityby other than private individuals,or gives reasons why
their conduct should be attributable to Niger(as to which see above,paragraph
24.55 etseq.).
24.472 Furthemore, Cameroon has produced no evidence that it ever protested tnthe
Nigerian Governmentabout this incident, nor isit includçd in MC 362 or MC 363
(purporting to list Nigerian frontier violations).
24.473 The circumstances as they appear from the allegatiom made by Cameroon do nut
give rise to any international rcsponsibility on tpart of Nigeria, in particular
since the acts in questionare not attributableto Nigeria. Nigeria accordinglydenies
any international responsibilityarising out of the incident allegedby Cameroon.
59. Mandur-Yang -06.07.1992
24.474 The legend on page 312 of OC 1 reads at item 24:
"Illegal arrests of four (04) Cameroonian peasants at MANDUR-
YANGby Nigerian policemen."
24.475 This allcgation is related to the allegation advancedin paragraphs 6.100 and 6.101
of the Memorial,and the document referredto also appcarsatMemoriaA lnnexMC
320. These allegationsare analyseciat paragraph 24.273 etseq. above. 24.476 For the reasons there set out, Nigeria denies that this allegationgives rise to any
international responsibilityon the part of Nigeria.
60. BituiLus -03.04.1995
24.477 The legendon page 312 of OC 1 reads at item 25:
"Exploitation of agricultural plantations in Carneroonian territory
(villages ofBITUI and LUS in the District of NWA) by Nigerian
farmers fromthe villageof ANTERE, along the border river DONGA
MANTUM."
24.478 The "exploitation" is alleged to have been carried out by Nigerian farmers.
Accordingly,there is no basis upon which Nigeriacanbe held responsible for this
allegedincident,
24.479 Once more, although Cameroonrefers to a document in support of itsallegation,
it is not necessary to examineit in detail or to point out numerousinadequaciesin
it as evidence of the allegationmade by Cameroon, since it provides no evidence
of activity by other than private individuals, or gives reasons why their conduct
should be attributableto Nigeria (asto which seeabove,paragraph24.55 etseq.).
24.480 Furthemore, Cameroon has produced no evidencethat itprotestedtothe Nigerian
I
! Gwernment about this incident.
24.481 The circumstances as they appear from the allegationsmade byCarneroon do not
give rise to any international responsibilityon the part of Nigeria, in particular
sjnce the acts in questionare not attributableto Nigeria. Nigeriaaccordinglydenies
any international responsibility arisingout of the incidentallegedby Carneroon.I
61. Ntong -26.02.1979 & 02.03.1979
24.482 The legendon page 324 of OC 1 reads at item 26:
. .
"Incursionsof armed groups of Nigerians from the border Villageof
WAN-SAHagainstthe fanners of the villageof NTONG (Cameroon),
in the course of which the wifeof the Chief of the village of NTONG
and two Cameroonianswere molested."
24.483 In its allegation, Cameroon refers to the perpetrators of the incident merely as
"armed groups". There is nothing to suggestthat they were anythingother than
private citizens coming from a particular border village. There is no basis upon
which Nigeriacan be held responsible for their conduct.
24.484 In support of this allegation, Cameroon refers toa Note from the Ministry of
Foreign Affairs to the Nigerian Embassy in Yaoundédated 21 July 1979, which
l appears on page 326. This Note confirms that the incident only concerned the
inhabitantsof a Nigerian village. The Note, incidentally,makes no reference to
these inhabitantsbeing armed.
24.485 Thus both the principal Cameroon allegation and the Note from the Cameroon
Ministry of Foreign Affairsagree in treating this incident as one involvingonly
private individuals. Cameroon gives no reason why their conduct should be
attributableto Nigeria (as to which see above,paragraph24.55 et seq.).
24.486 Cameroon did not regard this incident as sufficiently important to be worth
includingin MC 362 or MC 363, listing alleged Nigerianfrontier violations. This
is consistent with the tenor of the Note of 21 July 1979 from the Cqeroonian
Ministry of Foreign Affairs, and the fact that Cameroon hasprovided noevidence
that that Note was ever followedup by later diplornaticaction. The ~otc kas not
a protest: it did nouse that term, it did not "reserveCameroon's rights", and in
substanceit was merely a notificationto Nigeria that the incident hadtaken place and a request thatthese privateactivities should be broughtto an end. It is at best
no more than a mere "paper protest", which is not sufficient to keep alive
indefinitely a claim in relation to the matter to which it refers. Given that the
incident is alleged to have occurred in 1979, i.e. 20 years ago,it has, for the
reasons given in paragraphs 24.52-24.54, nowbecome barred by lapse of time.
24.487 For the foregoing reasons, in particular since the actç in question are not
attributableto Nigeria and anyclaim is in anyeventtime-barred, Nigeriadeniesany
international responsibilityarising out of the incident allegedby Carnermn.
62. Abooshie -07.05.1993
I 24.488 The legend on page328 of OC 1 reads at item 27:
i
"AtIack on two Carneroonian citizens (Messrs DESCO EYEBO and
EKKOKA CiWANDAb )y four (04) bandits corningfrorn Nigeria."
24.489 The allegation refers to the perpetrators as "bandits", indicating that they were
individualsacting without authority. Additionally, althoughthe bandits areid to
have come from Nigeria, Cameroon does not allege that the bandits were actually
Nigerian. There is no basis upon which Nigeria can be held responsible for their
conduct.
24.490 In any event, the documentrelied on by Cameroon, in supportof this allegation(a
note from the Governor of the North West dated 27 July 1993, which appears on
page 330) is cursory- only five lines long-and contains hardly any information
concerning the incident. 24.491 As with many of the previous alleged incidents, Cameroon did not regard this
incident as sufficientlyimportant to be worth including in MC 362 or MC 363,
listing allegedNigerian frontier violations.
24.492 Sincethis incidentinvolvedonly privateindividuals,andCameroongives no reason
why their conduct should be attributableto Nigeria (as to which see above,
paragraph 24.55 et seq.), Nigeria denies that this incident gives rise to any
internationalresponsibilityon the part of Nigeria.
63. Lebo - 12.07.1984
24.493 The legend on page331 of OC 1 reads at item 28:
"Arrest in Cameroonianterritory of the Chief of the Villageof T.EBO,
Mr. AGWASIMON, by Nigerian security Agents."
1 24.494 Althoughthis allegationis presentedin the legend(and thecover-sheeton page332)
in respectof a place called "Lebo", the descriptionof the incidentdoes not suggest
that the incident actually took place there, but rather that the arrested person was
the Chief of that village. In this case, Cameroon has not identified where the
incident is alleged to havetaken place.
24.495
In support of its allegation, Cameroon refers to a Note dated 8 March1985 from
theMinistry of ForeignAffairsto the NigerianEmbassyin Yaoundé, hich appears
on page 333.
(1) This Note refers to the arrest of the villagechief. However,it does not Say
whcrc the arrest is said to have taken place, it merely alleges that it took
place on Cameroonian territory. (2) Furthemore, this Note was written eight months after thedateof the alleged
incident, and does not indicatethe sourceofthe information contained within
it or provide direct evidence of the allegation, or explain the sunounding
circumstances.
24.496 In the section of Annex OC 1 relating to Lebo, Cameroon has exhibited a further
document, which is not referredto in the legend. This is the document appearing
on pages 334 to 336, which is a communicationdated 21 January 1994 from the
Sub-Prefect of Furu-Awato the Prefect at Menchum. The document, which is
dated nearlyten years after the alleged incident,containsno referenceto the alleged
arrest of Mr. Agwa.
24.497 Carneroon did not regard this incident as sufficiently important to be worth
including in MC 362, listing alleged Nigerian frontier v~olations, Although
Cameroon raised the mattcr of the alleged seizure of Mr. Agm in a Note of 8
March 1985 from the Cameroonian Ministry of Foreign Affairs,Cameroon has
provided no evidence that that Note was ever followed up by later diplornatic
action. In the absence of any follow-upaction, Cameroon's Note can be seen to
have been no more than a "paper protest", which is not suficient to keep alive
indefinitelya claim in relation to the rnatter to which irefers. Given that the
incident is alleged to have occurred in 1984, i.e. 15 years ago, it has, for the
reasons given in paragraphs 24.52-24.54, now becomebarred by lapse of time.
24.498 Moreover, the evidence submitted by Cameroon is inadequate to establish the
circumstancesof the alleged incident. That fact,coupled withthe time which has
passed since the incident is said to haveoccurred and sincethe Cameroon Ministry
of Foreign Affairs' Note of 8 March 1985, with no evidenceof any further action
on the part of Cameroon since then, involves the failure on Cameroon's part
adequatelyto establishitsclaim that internationalresponsibiIityfor the incidentrests
with Nigeria. Nigeria accordinglydenies any such internationalresponsibility. 64. Mbelego -26.09.1994
24.499 The legend on page 331 of OC 1 reads at item29:
"Attacks perpetrated by Nigerian police against Cameroonian
gendarmes, with the assistanceof the farmers of the Nigerian village
of TOSSO. Confiscationof two Cameroonianweapons (one FALrifle,
and an automaticpistol)."
24.500 This alleged incidentappears to be thesame as that referredto in paragraphs6.108
and 6.109 of the Mernorial. The incidentis dealt within paragraph24.293 et seq.
above.
65. Akwaya - 23.03.1993
24.501 The legend on page 342 of OC 1 reads at item 30:
"Overiiightof AKWAYA by an aircraft of the Nigerian army charged
with drawing up the geographical map of the MATENE LOCAL
GOVERNMENT and thearea of OBUDUCATTLERANCH."
24.502' In supportof its allegation, Cameroonrefers totwodocuments. The firstis a Telex
dated 5 May 1993. This wouldappear to be the document exhibitedon pages 343
and 344, although the date on that documenthas been addedin manuscript. The
document, sent by "DIPLOCAM" to "MINDEF", consists alrnost entirely of a
quotation from a message of 23 March 1993 sent by the Governor of the South
WestProvince. The quotation, whichis illegiblein places, appearsto statethat the
populationof the "District of Akwaya"had been "wondering"about a small plane
of unknownorigin overflying"severaltimes a day". Itcontinuesby statingthat "it
seems from a human source that this plane comes from the neighbouringcountry
(Nigeria) on a topogrdphicaimission..".This message quod in the Telex: (1) does not state thedate upon whichthe incidenttook place;
(2) suggests that the overfiight took place in the "Disrnct of Akawaya" -
however,the precise locationof the overflightis not identified;
(3) states that the plane was said to be of unknown origin - itwas only an
unspecified "human source" which had indicated (or, more precisely, had
"seemed" to indicate) that the plane had come from Nigeria;
(4) gives no information about the type of plane, or iü flight patterns, even
though it was said to have been overflying "several times a day", thus
affordingample opportunity for observation;
i
(5) in any event, makes no reference whatsoeverto the plane having belonged
to the Nigerian Amy;
(6) makes no refcrenceto the place called "Obudu"; and
(7) gives no indicationof the source of any of the information containedwithin
I
it.
24.503 The second document referred to is a Note dated 18 May 1993 from the
Cameroonian Ministry of Extemal Relations to the Nigerian Embassy, appearing
on page 345. The Note refersto an overflightof the AkwayaSub-Divisionwhich
tcak place in the last weekofApril 1993, and states that "afterverificationn,it was
pmven that the aircraft was from Nigeria, and was canying out a topographical
survey. The last paragraph of the Note suggeststhat the overfiightwas the result
of somemisunderstanding concerning the"geographicalrealities" of the region.24.504 This document
states that the incidenttook place in April 1993 -if this were the case, it
1
wouldhaveoccurred afrerthe date of the messagefrom the Govemorof the
South Westdated 23 March 1993which was referredto in the Telexat page
343;
(2) states that it had been "verified"that the aircraft was Nigeria-however, it
is not clear whether that verification went beyond theassertions of the
unidentified "human source" referredto in the Telexat page 343;
(3) does not state anywhere that the plane belongedto theNigerian Amy, but
merely states that it was "from Nigeria";
(4) does not Say on what basis itwas thought to have been conducting a
topographical survey; and
(5) suggeststhat the overilightwas the result of a misunderstanding,which was
related to the geographyof the area.
24.505 Cameroon did not regard this incident as suficiently important to be worth
includingin MC 362 or MC 363, listingallegedNigerian frontier violations. Itwas
clearly a minor "incident", involving nomilitaryor other threat (stillless, material
damage)to Cameroon.
24.506 Moreover, Cameroon has failed to produce any evidenceto show that the aircraft
involvedwasanythingto do with the NigerianAimy (or other am of Government).
There could be manyexplanations for a flight of the kind described by a "small
plane" of admittedly"unknownorigin", evenif it did originatefromNigeria (which
itsklfis not establishedby reliable evidence). 24.507 In these circumstances Carneroon hasfailed adequately to establish its claim that
international responsibility for the incidentrestswith Nigeria. Nigeria accordingly
denies any such international responsibility.
66. Nsanakang -Multiple Occurrences
24.508 The legend on page 340 of OC 1reads at item 31:
l
"Nigerian forestry exploitationin Cameroonian territory."
24.509 There is no indication that this "exploitation"was carrout byanyoneother than
private individuals; îhere is no basis upon which Nigeriais ko held responsible 1
for their conduct.
24.510 Additionally,
(1) Cameroon has not providedspecific dates upon which this "exploitation"is
said to have occurred; and
(2) Cameroon has not indicated precisely where this "exploitation"is said to
have occurred: the forestry "exploited"was presurnably in the vicinity -f
rather than in-the villageof Nsanakang.
The evidence adduced by Cameroon in supportof this allegation is self-evidently
24.511
inadequate as a basison which to establish Nigeria's internationalresponsibility.
24.512 Moreover, by making it clear that the conduct complainedof was that of private
individuals, and without providing any reason why their wnduct should be
attrihuted to Nigeria, Cameroon has failed to show that die matter raised in Cameroon's allegation is a matter for which Nigeria bears international
responsibility. Nigeriaccordinglydenies any such internationalrksponsibility.
67. Matene - 27.10.1986
24.513 The legendon page 340 of OC 1 reads at item 32:
"Nigeriancitizens are crossing the river MAGWIand are invadingthe
village of MATENE (48 km. inside Cameroon), destroying
Cameroonian habitations and taking hostages to Nigeria, including
ANYAEmmanuel;AIE Martin, his wifeand his &wo children; Martin
KOVELI;Michel ASOA; ABU M; Mrs Brigitt AMU hKWO The
Nigerian attackers,led by the Chiefof the villageofARIA OGBASBI,
came from the villageof OKWA(Nigeria)."
24.514 Since this attack is alleged to have been carrout by "Nigerian citizens", there
is no basis upon which Nigeriais to be held responsible fortheir conduct.
24.515 On the map extract appearing on page 340, Cameroon has indicated with a large
"32" the locationof the Cameroonianvillageof Matene(as opposed to theNigerian
village of Matene, which is located nearby). It is evident that Matene is in fact
approximately5 kilometresfrom the boundary, not 48 kilometres.
24.516 Although Cameroon refers to two documents insupport of its allegation, it is not
necessaryto examinethem in detail or to point out numemus inadequaciesin them
as evidence of the allegation made by Cameroon, since they provide no evidence
of activityby other than private individuals,and give no reasons whytheir conduct
should be attributableto Nigeria (as to which see above, paragraph24.55 et seq.).
NeverthelessNigeria observes that the secondof thesedocuments (a Note from the
Nigerian Ernbassy in Yaoundéto the Cameroonian Ministry of Foreign Affairs
dated 26 June 1987, appearing on page 353) Statesthat as at its date, the villages
of Matene and Okwa had'%adtheir differencesresolvcd". It goes on to out that some difficultiesarose out of the attemptsby the CameroonianChief of Matene
to impose a levy on villagers from Okwa (a Nigerian village). The Note also
suggeststhat the attack by Okwa villagers in Octob1986 was merely a reaction
to an earlier attack on Okwaby the Cameroonians.of Matene on 29 July 198- in
other words, the alleged incidentwas a consequenceof an attackCameroonians
on a Nigerian village.
24.517 As with many of the previous alleged incidents, Cameroon didnot regard this
incident as sufficientlyimportant to be worth includingin MC362 or MC 363,
listing alleged Nigerianfrontier violations. It was evidentlythe result of an inter-
village squabble.
24.518 Sincethis incidentinvolvedonly private individuals,and Cameroon givno Kason
whytlieirconductshouldbe attributableto Nigeria, Nigeriadeniesthat this incident
gives rise to any internationalresponsibility on the part of Nigeria.
68. Dadi & Badje - Multiple Occurrences
24.519 The legend on page 341 of OC 1 reads at item 33:
l
"Occupationof cultivatedareas in Cameroonian temtory by Nigerian
farmers, the Cameroonian farmershavingbeen chased away."
24.520 The occupation is said to have been carried out by "Nigerian farmers". There is
no basis upon which Nigeria can be held responsiblefor their conduct.
24.521 There is thereforeno need toexamine indetail the defectsin Cameroon'sallegation
or the document submitted by Cameroon in support of it. It is sufficientto note
thatitconfirms thatthose concerned were Nigerian famers.24.522 Since this incident involvedonly private individuals, andCameroon givesno reason
why their conduct should be attributable to Nigeria (as to which see above,
paragraph 24.55 et seq.), Nigeria denies that this incident gives rise to any
international responsibility on the part of Nigeria.
69. Archibong -27.11.1980
24.523 The legend on page 359 of OC 1 reads at item 34:
"Attack by eight (08) armed Nigerian soldiers who molested the
population and attemptedto arrest a Cameroonian game keeper."
24.524 It is apparent that this alleged incident is the same one as that referred to in
paragraph 6.76 of rheMenlorial. The Notc appearing on page 361 also appears at
Annex MC 256. The incident and document are dealt with in paragmph 24.230 et
seq. above.
70. Akwa - 19.02.1994
24.525 The legend on page 359 of OC 1 reads at item 35:
"Attack on a Cameroonian patrol by a Nigerian patrol. Outcorne: 1
dead and 1 wounded on the Cameroonian side"
24.526 This allegation andthe document referred to (a message dated 21 February 1994)
are dealt with above, in the context of the incidents of February 1994 referred to
in the Mernorial(see paragraph 24.86 et seq. above). 71. Ine-Ikoi-21.01.1981
24.527 The Iegendon page 359 of OC 1 reads at item 36:
"Abduction of Chief ofDABAM District and his suite"
24.528 This allegationis related to that contained in paragraphs 6.66 to 6.70 of the
Memorial. Accordingly, the allegation and the document referred to (dated 26
January 1981) are dealt with at paragraph 24.180 et seq. above.
72. Kombo A Redimo - 19.11.1985
24.529 The legcnd on page 359 of OCI reads at item 37:
"Visit to the INNUA-MBhfishery by the Sub Prefect of KOMBO A
BEDIMO,where Cameroonian territory was violated by elements of
the Nigerian maritime police and customs"
24.530 This allegations apparently related to one of the allegationscontainedin paragraph
!
6.52 of the Memorial; accordingly, it is dealt with at paragraph 24.109 et seq.
above.
73. Kombo A Janea -18.02.1994
24.531 The legend on page 369 of OC 1 reads at item 38:
"The Nigerian navy attacks the Cameroonian positions. Outcorne: 1
dead and 1woundedon the Cameroonian side"24.532 In support of this allegation, Cameroon refers to a message dated 19 Febmary
1994, which appears on page 371. However, this is the.sarne dmument as that
appearing atAmex MC339 of the Mernorial,which wa referred to in paragraph
6.34 of theMernorial, in relation to the incidents of Febmary 1994. Accordingly,
this allegation and the document are dealt withve(see paragraph 24.86etseq.).
74. Jabane -02.04.1990
24.533 The first section of the legend on page 372 of O1reads:
"The Nigerian ndvyarrests a Cameroon patrol on an officiaimission
to JABANE: three (03)policemen, oric(01) vessel and the pilofthe
vessel."
24.534 This allegation is related to the allegationcontained in pardgmphs 6.72 to 6.74 of
the Mernorial;accordingly, theallegatiois dealt with in paragraph 24.194 et seq.
above.
75. Jabane - 16.05.1991
24.535 The second section of the legend on page 372 of OC 1 reads:
"Protest following frequent incursionsby the Nigerian police at
JABANE"
24.536 Although the date of the protest is given, Cameroon has not indicated the date or
dates on which the "frequent incursions" areleged to have occurred.
24.537 The document relied upon by Cameroon, a Note datcd 1.6May 1991, from the
Cameroonian Ministry of Foreign Affairs to the Nigcrian Embassy in Yaounde, appears at page 375. The Note refers to "the continuingpresence at Jabane of
Nigerian police frotheFederal StateoAkwa Ibom" (ernphasisadded).Irmakes
no otherreferenceto Nigerian police, or "frequent incurbyothem. The Note
failstospecify the date or period during which the "continuingpresence" occurred.
The allegation is said to be based on "information from the Cameroonian South
WestProvince", without elaboratingon the precisesource.
24.538 Cameroon has failedto identify this'incident with the necessary panicularity, and
the supporting evidence relied on is inadequate to substantiate the allegationwith
suficient certainty. Accordingly,and quite apart from the general considerations
referred to above, particularly in paragraphs 24.48 and 24.62, Nigeria denies that
theygive rise to any international responsibilityon its pan.
76. Jabane - 28.12.1993
24.539 The rhird section of the legend on page 37OCof1 reads:
"Three Nigerian war vessels placed on permanent patrol at JABANE
with more than 1.O00uniformed men aboard."
1 24.540 This allegation is related to allegations contained in paragraph 6.30 of the
I Mernorial. Additionally,the document relied upon by Cameroon (a Note dated31
January 1994 appearing at page 376) is the same as the document appearing in
Amx MC 329 of the Memorial. These allegationsand Armexare dealt with at
l paragraph 24.76 et seq. above. 77. Diamond -28.12.1993
24.541 The legend on page 377 of OC 1 reads at item 40:
"Installation of an observation patrol at DIAMOND".
24.542 Although no document is referred to by Cameroon, Cameroon have exhibited at
page 379 a document which relates to this allegation. That document is the same
one as that appearing on page 376 -as already mentioned, this document was
amexed to the Mernorial as Amex MC 329, and is dealt with above in relation to
the allegation analysed at paragraph 24.76 seq.
78. Idabato -01.09.1984
24.543 The first section of the legendon page 380 of OC 1 reads:
"Illegalpolicing of a Cameroonian pirogue by Nigerian customs men"
24.544 In support of its allegation, Cameroon refers to a "Verbal Protest Note" dated 7
August 1985. This appears to be the note exhibited onpages 382 and 383, which
was sent by the Cameroonian Ministry of ForeignAffairstothe Nigerian Embassy
in Yaoundé. Howevert,hat Note is not a Note of Protestas it merely recounts an
incidentsaid to haveoccurred. The incident which is referred to is the interception
of a Cameroonian vesse1at "Forisane Fishery", which is "siniatedbetweenEkondo-
Titi and Idabato- in other words, not in "Idabato" (Atabong) itself.
24.545 Thus, the single document relied upon by Cameroon makes no reference to any
incidenthaviag taken place at "Idabato"; and Camcroon has failcdto identify the
location of "Forisane Fishery" (althought appearsfrom the map on page 380 of
OC 1 that there is a place whiçh Carneroon calls "Forisane" located over 15 kilometres to the east of "Idabato"). In any event, the Note does not identifythe
source of the information contained withinit.
24.546 Cameroon did not regard this incident as sufficiently important to be worth
including in MC 362 or MC 363, listing alleged Nigerianfrontier violations.
24.547 Although Cameroon raised the alleged incident in the Cameroonian Ministry of
Foreign Affairs' Note Verbale of 7 August 1985, Carnermn has provided no
evidence that that Note was ever followed up by later diplomatic action. In the
absence of any such further action, Cameroon's Note cbe seen to havebeen no
more than a "paper protest", which is not sufficient to keep alive indefinitelya
claim in relation to the rnatter to which it refers. Giventhat the incident is alleged
to have occurred in 1985, i.e. 14 years ago, it has, forthe reasons given in
paragraph 2s4.52-24.54, now become barred bylapse of time.
24.548 Given in particular the factual inadequacy of Cameroon's allegation and the
evidence submittedin support of it, and in view also of the time whichhas passed
since the incident is said to have occurred and since the Cameroon Ministry of
Foreign Affairs'Note of 7 August1985, with no evidenceof any further action on
the part of Cameroon since then, Cameroon has failed adequatelyto establishthat
Nigeria bears international responsibility forthe incident. Nigeria accordingly
denies any such internationalresponsibility.
79. Idabato -30.12.1993
24.549 The secondsection of the legend on page 380 of OC 1 reads:
"The Nigerian army deploys a contingent of 500 soldiers at
IDABATO"24.550 In supportof this allegation,Cameroon refersto a Notedated 4 January 1994from
the CameroonMinistry of ~xternal Relations tothe Nigerian Embassyin Yaoundé.
This Note (at page 384) refers to the deploymenton 30 December 1993 of 500
soldiers in "Ida-Bato Sub-Division" in the South-West Province of Cameroon.
Apart from that general indication asto the region in which the soldien were said
to havebeen deployed, the Notedoes not provideany informationas to the specific
location of the alleged deploymentor any information as to the circumstances
surrounding it (and although the Note adds certain other allegations,these do not
directly relate to the alleged deploymenton 30 December), or refer to any direct
evidence forthe allegationsmade in the Note.
24.551 In fact, the circumstances associated withNigerian troop depluyrnentçin Bakassi
at around thistime are known. Theyare set out above,in paragraph24.91 et seq.
(and in panicular, paragraph 24.94). They show that various Nigerian troop
movementsat that tirne were a lawful excrcise of Nigeria'sterritorial sovcreignty
overBakassi, andin nowaya violation of any Camemnian rightî.
24.552 Accordingly, quite apart from the inadequacies of the Note relied upon by
Cameroon as evidence substantiating the allegation made, and the general
considerations referred to above (particularly in paragraphs 24.48 and 24.62),
Nigeriadenies that this allegedincidentgivesrise toany internationalresponsibility
on the part of Nigeria.
80. Idabato -17-18.02.1994
24.553 The third sectionof the legendon page 380 of OC 1 reads:
"The Nigerian Amy attacks IDARATO"This allegationis related to the one contained in paragraph 6.34 of the Memorial.
Additionally,the document referred to, a message dated20 Febniary 1994which
appears on page 386, also appears at Annex MC 339 of the Memorial. The
allegationand the document are dealt with abovein paragraph 24.86 et seq.
Rio del Rey - 16.05.1981 & 05.07.1985
The first section of the legend on page 387 of OC 1 reads:
"A Nigerian military patrol violates Cameroonian temtory by
penetrating intothe Bakassi Peninsula as far as theRio del Rey. It
attacksa vesse1of the Carnerooniannavy. Our sailors reply and repel
the attacker".
Carneroon has supplied two dates which are four years apart in respect of this
incident. Nigeria assumesthat Cameroon is alleging that an incidenttook place on
each of those dates whichcan be described in thewayset out in thelegend.
The Rio del Rey is a large body of water, and Cameroon has failed to indicate
precisely where within it these alleged incidentstook place.
In support of its allegations,Cameroon refers to two documents. The first, a Note
dated 17May 1981, appears on pages 389 and 390. It is apparent that theincident
referred to, which took place on16 May 1981, is the one referredto byCameroon
in paragraphs 6.13 to 6.27 of the Memorial. This allegationis dealt with abovein
paragraph 24.65 et seq., where it is demonstrated that Cameroon was in fact
responsiblefor that incident.
The seconddocument,exhibitedon pages 391 and 392, is a Notedated 2 December
1985from the Cameroonian Ministry of Foreign Affain addressed tothe Nigerian Embassy in Yaoundé. The Note alleges that a vesse1of the Nigerian fleet had
patrolled the watersof the Rio del Reyon 5 July 1985.
24.560 However:
(1) the Note is dated five months after the alleged incident, and contains no
indicationof the source of the information contained withinit or any direct
evidenceto support the assertions made in it;
(2) makes no reference to any Nigerians "penetrating into the Bakassi
Peninsula";
(3) gives nodetails ofthe circumstanccssurroundingthe alleged incident;
(4) makes no referenceto an attack on a vesscl of the Camerooniannavy; and
(5) makes no referenceto Camerooniansailors repelling the "attackers".
24.561 Cameroon did not regard this incident as sufficiently important to be worth
including in MC 362, listing alleged Nigerian frontier violations. Although
Cameroon raised the alleged incident in the Camermnian Ministry of Foreign
Affairs'Note of 2 December 1985, Cameroon hasprovided noevidence that that
Note was ever followedup by later diplomatic action. In the absence of any such
further action, Cameroon's Note can be seen to have been no more than a "paper
protest", which is not sufficientto keep alive indefinitelya claiin relationto the
matter to which it refers. Given that the incidentis alleged to have occurred in
1985, i.e.14 years ago, any claim in respect of ithas, for the reasons given in
paragraphs 24.52-24.54, now become barred by lapse of time.
24.562 In addition, Cameroon's allegation and the evidence submitted insupport of it is
factuallyinadequateto establishNigeria's internationalresponsibilityfoxthe alleged incident. In view also of the tirne which has passed since the incident is said to
have occurred and since the Cameroon Ministry of Foreign Affairs' Note of 7
August 1985,with no evidence of any further action on the part of Cameroon since
then, Cameroon has failed to make good its claim that Nigeria bears international
responsibility for the incident. Nigeria accordinglydenies any such international
responsibility.
82. Rio del Rey - 16.06.1984
24.563 The second section of the legend on page 387 of OC 1 reads:
"Installation of a provisional, and illegal, Nigerian Customs control
post. A Cameroonian boat thus illegally searched is named 'KALU
AND BROS'. "
24.564 This allegationis related to an earlier allegationcontained in paragraph 6.50 of the
Mernorial. Both the allegation and the documents annexed in OC 1 are dealt with
above in paragraph 24.103 et seq.
N. Conclusions
24.565 Nigeria has carefully considered al1 of Cameroon's allegations of international
responsibility on the part of Nigeria.
As regards those allegations which concem alleged violations of Nigeria's
(1)
treaty obligations, or obligations under customary international orwwhich
concem the alleged violation by Nigeria of the principie of utipossidetis
jurisN ,igeria has shown that it has in no way acted in violation of any
obligations incumbent upon it under international law.(2) As regards those allegations which arise out of specific incidents said by
Cameroon to have occurred in circumstances giving rise to international
responsibility on the part of Nigeria, Nigeria has shown that, on careful
examination, none of Cameroon's allegationsof international responsibility
has been substantiated by Cameroon, upon whom, as the Applicant, the
burden of establishing its allegations falls. In particular, ali the allegations
advancedby Cameroon reveal one or more ofthe follo~7ingcharacteristics:
- they are confused and unclear as to central elements of the allegations
being made (for example, as regards the date or location of the incident
in question);
- they are supported (if at all) by documentary evidence which is
inadequate, contradictory, or ainbiguous, or al1three;
- they coiiccrn Nigerian conduct in areas (panicularly in Bakassiand Lake
Chad) which were at ail material times (and still are) subjecttoNigerian
sovereignty andwhich Nigeria occupies and administers as of right;
- they concern incidents in respectof which any internationaldaim against
Nigeria is now barred by lapse of time;
- they concern actions of persons whose conduct is not attributable to
Nigeria;
- they concem incidents of an essentially insubstantialnature, occasioning
no material damage to Cameroon;
- they concern incidents which have already been resoIved at the
appropriate local lcvel.24.566 For the reasons set out in this Chapter, Nigeria deniesthat the matten alleged by
Cameroon give rise to any international responsibility on the part of Nigeria. and
submits that Cameroon's claims of State responsibility on the part of Nigeria are
unfounded in fact and law. PART VI
NIGERIANCOUNTER-CLAIMS CHAPTER25
PARTICULARSOFTHENIGERIANCOUNTER-CLAIMSA. Introduction
25.1 Under Article 80 (2) of the Court's Rules, a counter-claim "shall be made in the
Counter-Memorial of the party presenting it, and shall appear as part of the
submissions of that party".
25.2 In its Application, Additional Applicationand Memorial, Cameroon cited an
increasing number and variety of "incidents" along the border and, at least with
respect to some ofthese, it has also brought in issue the international responsibility
of ~igeria.~" The position of Nigeria with respect to these "c1aims" is set out
above: see Chapter 24.
25.3 In principle, it is undesirable to confuse boundarorterritorial disputes othe one
hand and claims to State responsibility on the other. The resolutionof boundary
disputes has always been one of the most important funciions of the Court,
contributing both to settled relations betwccn the twoStalesconcemed and, more
generally, to climinating threats to international peace and security. The Court
continues to have on its docket many boundary cases, from different parts of the
world. But very few boundary disputes referred to the Court have sought to add
issues of State responsibility, andin thendful of cases where this has been done,
the Court has never actually had occasion to deal with issuesof State responsibility,
which were withdrawn in the course of the pro~eedings.~~~
25.4 In the present case, Cameroon has sought to set a new pattern in this matter, one
which is calculated only to make the eventual resolution of disputed boundaries
more difficult. As noted during the oral hearings of its Prelirninary Objections,
Nigeria would have preferred to keep the issues before the Coua to the essential
42! Applicatiopara2.0(c') (Bakassionly): Addilianul Applicuririn.pa(Me 1Chad)uniy):Memorial,
Chapres6-7(miscellaneoincidentalongthc border)
"' Seefor exampleAnglo-Nonvegiun FisheCase,ICJ Reporm1951 p. 116 and important ones, involving the location of the boundary in the various
~ectors.~" It does not believe that the farrago of accusarions of minor incidents,
many of them old and stale, which characterises Cameroon's pleading, adds
anything of substance to the issues before the Court.
25.5 However,the parties are and must be in a position of equality before the Court in
al1respects, and as will be demonstrated, there are many cases in which incursions
are occurring along the border from the Cameroon side and for which Cameroon
is intemationally responsible. Therefore, Cameroon having advanced its State
responsibility claims, Nigeria maintains the followingcounter-claims.
25.6 In compliance with Article 80 of the Rules, Nigeria accordingly hrings counter-
clairns with respect to the matters set out belo~.'~~11reserves, tnthe same extent
as has becn (or in future may be) allowed to the Applicant, thc right to present
additional facts and legal considerations in respect of the incidents conceriied and
the damages resulting thcrefrom and to present evidence of additional incidents.42y
25.7 In addition, Nigeria reserves the right to cal1 upon the Coun to "specify
definitively" the course of the land boundary in case significant local disputes or
disagreements may be identified in the course of the pr~eedings.~~
CR 9812.pp.37-38
Amongthe variousincidentson record,only thosewhicharenotobviouslystale.whian reasonablywell
drxurnented,whichwereraitrçsolveby loçalmçdiationor hy sonie orliernhaveiken incliidedin tliis
Couorer-Clairn.
luùgrnentof theCourtoriPrçlirniObjec~icins,ara100:Judgnienton theRequestfor Interpreration. para.
15
430 See below,paragrap26.5B. The BakassiPeninsula
25.8 As demonstrated in Part 1above, Nigeria's administrationof the fishingvillages in
Bahsi since 1960 has been, for the most part, continuous and accepted bythe
inhabitants. However,especially in the periodsince 1993,a series of incidentshas
occurred involving,interalia, Cameroonian militaryattackson ordinary fishermen
and on fishing villagesin the region, with consequentinjury and loss. Particulars
of these incidentsfollow. Nigeria reserves the right toprovidefurther evidencein
respect of each ofthese incidents in subsequentpleadings.
25.9 A Nigerian Protest Note dated 31 March 1977(NC-M 354) states that:
"At about 2.00 p.m. on that day [Novembcr 2 19761a group of
Cameroun gendarmes attacked Ufok Akpa lkong and set the village
ablaze. Fishing [equipment] and other propenies of the fishennen
were destroyedduring the rampage and before retreating back into
Cameroun, the [gendarmes]took Mr. Edet Asuquowith them."
25.10 A letter dated 3 October 1991from the Departmentof State Servicesat Calabar to
the Militas, Govemor of Cross River State relatesan incident whichtook place on
24 September 1991when:
"sevenarmed Cameroun gendarmes from IsangeleDivisioninWestern
Cameroun visited Ntakaba Villagein the riverine area of Akpabuyo
Local GovemmentArea and carried out illegaltaxdrive. They were
led by their tax agent Okon Mathew.
During the illegal tax drive, the inhabitants of Ntakaba numbering
about fivehundred, refusedto yield to the Gendarmes' demand. They
argued that they have paid their taxes to the old Odukpani Local
Government Area since they are al1 Nigerians living in Nigerian
territory. When al1 efforts to force them to pay tax to the
Camerounian Authority failed,the Gendarmessubjected themto çevere
beatingsand house to housc lootingof their fish,fishinets and other
fishing materials worth about N100,000.00 (One hundred thousand
Naira). The Gendarmes later left after the looting with a promise to reinforce
and re-visit the Village in no distant date. This developrnent has
instilled fear in the villag.." (NC-M 355)
25.11 A Nigerian Protest Note dated26 April 1993Statesthat reports have been received
that Cameroonian gendarmes have been harassing Nigerian citizens living in
Bakassi:
"On the 26th Febmary, 1993 at Abana in Mbo Local Government
Area of Akwa Ibom State, about one hundred gendarmes invadedthe
Fishing settlernents in the area and harassed and terrorised the
Nigerian inhabitants." (NC-M 356)
25.12 A further Nigerian Protest Note date5 July 1993 protests about a Catneroonian
military operation involvingthe Cameroonian Armcd Forcesstating:
"This incident took place on the 27th June, 1993 at about 0800 hours
with Military Helicopters fittcd with rockeand several Navalboats
attacked Nigerian Merchant Roats resulting inthe sinkingof twenty-
three (23) such Nigerian boats withoutwarning." (NC-M 357)
25.13 An interna1 official letter dated 30 January 1994 from Akpabuyo LGA to the
Military Administratorof Cross River State relatesthe followingtwo incidents:
(1) "On 17th January 1994, about 300 Camerounian gendarmes invaded
and set ablaze Sandy AbanalIkot Uka (named by the [Carnerounian]
Authorities as Charles fishing port) at about 1600 hoiirs, and the
inhabitantshaveno other optionthan [tflee]to Akwa Ine Akpa Ikang
fishing port."
(2) "On 18th January 1994, Camerounian soldiers were said to have
invaded Ijaw and Andoni fishing ports, harassed innocent citizens
particularly the women and children. They visited Akwa Ine Akpa
Ikang and warned inhabitants of the area toacate the village before
0700 hours on 20th January 1994." (NC-M 349)25.14 A note from the Nigerian Ministry of Foreign Affairs dated7 February 1996states:
"On Saturday 3rd Febmary, 1996, some elements of the Cameroon
military forces launchedan unprovokedattackon Niseria's position in
the Bakassi Peninsula. The Cameroon soldiers shelled the Nigerian
position continuously forabout four hours, resultingin considerable
destruction of property, loss of life andinjuries.
It would be recalled that this is not the first timethatamermnian
soldiershaveresortedto this type of aggression againstNigeria." (NC-
M 358)
25.15 A Record of the audience granted to the Cameroonian Spccial Envoy by the
Nigerian Headof Stateon 8 February 1996mentions(NC-M 359,paragraph 7) that
"the Head of State expressed that hc was shocked to learn about the incident
involving Cameroonian soldiers shelling the position of the Nigerian troops
continuously for 4-5 hours. He said that there was no justificatiun for the
Cameroonian attack ...".
25.16 The incidentprovokedan exchangeof correspondencewith the United Nations. On
26 February 1996, Nigeria's Foreign Affairs Minister, Chief Tom Ikimi, sent a
letter to the President of the Security Council whichstated:
"1wishto confirmthat sincethe historicmeetingin Kara, the Nigerian
Govemment troops have made no attacks whatsoever on the
Cameroonian positions in the Bakassi ... On the contrary, it is the
Nigerian population in the Bakassi that have continued to be the
victims of intimidation, harassment and attacks by Cameroonian
soldiers. Cameroonian helicopter gunships have been invading the
area and firing at Nigerian positions." (NC-M 360)
25.17 This incident was also referred to in an open letter from the Nigerian Ministcr for
ForeignAffairsto his Cameroonian counterpait dated lune 1996. This states: "1wouldlike to observe that you specifically rnentioned[in a letter of
19 lune 19961the shooting incident of Febmary 3, 1996. which you
know very well was provoked by some overzealous Carneroonian
troops in their aggressionand attacks on Nigerian positions in the
BakassiPeninsula."
It continues:
"Ironically, you decided to remain silent on Cameroon's unprovoked
attacks on Nigerian troops which tookplace on February 17. 18 and
19 1996 ...Curiously you again elected to be silent on yet other acts
of Cameroonian aggression againstNigerian troops, like those which
occurred in April 21, 22 and 23, to May 1 1996. If these attackswere
not in utter contraventionof the provisionalmeasures of the ICJ. and
the calls by the international conimuiiily for restraint, one urinders
what else they were." (NC-M 361)
25.18 A cable dated 1 February 1997 containing the full text of a message addressedto
Mr. W. Stocker, regional delegate and Head of Missiun uf the International
Comniirtceof the Red Cross, statesthat Nigeriawould liketu place on recordthat:
"between 16 and 28 November, 22-24 December 1996 respectively,
the Cameroonian army shot at and captured over 40 fishermen and
traders around Archibong [East] Atabong Creeks within Nigerian
Territory. These innocent civilians were taken to Ekondo-Titi (a
military base), allegedlyfor espionageandplaced under custody ...as
prisoners of war." (NC-M 362)
25.19 Again, evidentlya series of incidentswas involved,forming a consistent pattern.
25.20 A Nigerian Protest Note dated 25 March 1998 records that:
"On Thursday, 19 March, 1998, a Cameroonian helicoptermounted
with General Purpose Machine Gun attacked Nigerian tmops and
civilians in Archibong, Abana in the Bakassi [Peninsula]as well as
Ikang environ. Asa result of this incident, five (5) soldies, twenty
(20) niarket womenand eighteen (18) school children casualtieswere
reçorded. The Ministry [of Foreign Affairs] further wishes to informthat the
Cameroon Armed Forces and Gendarmes have of recent provoked
Nigerian troops beyond tolerable limits. On their part, the Nigerian
troops restrained themselves from being drawn intohostilities with the
Cameroon Armed Forces out of respect for the ICJ ruling of 15
March, [1996], on interim measures towardspeacehl resolution of the
conllict" (NC-M 363)
A Nigerian Protest Note dated May 14 1998 sets out the eventsof 6April, 18April
and 20 April 1998, when Cameroonian military uni&attacked Nigenan civilians in
a series of hostile unprovokedacts:
"On Monday 6 April, 1998 between 1200 and 1300 Hours, four
rockets were fired into inilitary area, and the civiliati sertlemeai
Utang Iyak GR 6108 and Moses Fishing Port GR 5912 respectively.
The exploded shells destroyed houses at the creeks and wounded five
(5) fishermen and twelve (12) women traders;
At about 1455 Hours on the same day, another rocket was firedin10
West Atabong Arca, destroying two (2) houses and killing twa
children;
A further attack in this place at 1700 Hours the same day wounded
one fisherman, Mr Asukwo Udo, within the area of Edem Abasi;
Between 1030 and 1235 Hours on Saturday April 18, 1998, persistent
firing came from hostile Creek towardscivilian and military locations
at East Atabong, leaving twenty-one civilian[s] and soldiers seriously
wounded and
On Monday April 20, 1998, at about 1600 Hours unprovokedattacks
resulted in the death of one of the three (3) civilians who were fishing
at Akwa Ine Itung Creek. The other two civilians were seriously
wounded. " (NC-M 364)
The 6 April attack is also documented by wayof an interna1military cabie which
States:
"Four en[emy] rockets fired at own rnil[itary] loc[ation] and civilian
settlement on 6 Apr 98 at about 1300 Hrs. ...Utang Iydk and Moses Fishing Port, destroyed2 houses, wounded5 fishermen and 12women
traders....West Atabong, 2 houses destroyed and 2 children killed.
...Edem Abasi Creek, en[emy] troops fired and u~unded some
fishermen." (NC-M 365)
25.23 There is a letter from Bakassi LGA to the Military Administrator of Cross River
State dated 10 April 1998 (NC-M 366), which also reports on the 6 April 1998
attack, and includes a report from an officia1who visited the site. Witness
statementsfrom the witnesses and a death certificate for one of the casualties are
at NC-M 367 to NC-M 369.
25.24 At NC-M 370 there is a signed witness statementand death certificatefor the attack
on 20 April 1998. Three Nigerian fishermenwere fishingin watersofflne Odiong,
on the southeast Coastof Bakassi, and wereblownonshore by freak weather. The
Cameroonians fired on them indiscrimirately, killix one and injuring the other
two. In relation to further attacks by Cameroonian forces during February and
March 1998, see also the medical report, signed witness staiernenls, death
certificatesand compensationclaims at NC-M 371 to NC-M 373.
25.25
A Nigerian Protest Note dated 15 April 1999 states that:
"on 25th February 1999, twenty-five (25) Nigerian fisherman, who
were on a fishing expedition in the Nigerian territorial waters within
the Bakassiaxis, claimed that they were forciblyharassed and chased
awayby Cameroonian gendarmes." (NC-M 374)
These fishermenalso had their engine boats, fishingnets and other valuablesseized
by the gendarmes.
25.26 With respect to each of these incidents referred to in paragraphs 25.9 to 25.25,
Nigeria claims a declaration that they engage the international responsibility of
Cameroon, with compensation in the form of damges, if not agi-ed between the
parties, then to be awardedby the Court in a subsequentphase of the case.C. Lake Chad
25.27 As demonstrated inPart II above, Nigeria's administration of its villages in Lake
Chad has been peacefuland continuous.
25.28 However,there havebeen a number of incidents atKirtaIVulgo,a settlement which
falls within Nigeria even on the basis of the u~atified IGN demarcation.
25.29 A letter dated 8 March 1985 from the Military Govemor's Office at Maiduguri,
Bomo State, to the Chief of Staff at Lagos, Statesthat on 15 February 1985 some
Cameroonianofficials paida visit to the Ngala Local GovernmentArea of Nigeria.
"The officials were led by the Sous Prefectof Kousouri. They were
conducted round the area ...by two Camerounian nationals residing
in Kirta WulgoGana.
Three days later after their first visit to area (i.e. 1812185)the
same officiais paid another visit to the area and appuintadBulama
for Kirta Wulgo" (NC-M 375)
25.30 Kirta Wulgo is a settlement which is, on any view, inNigerian territory. Its
locationcan be seen from theAtlas, Map 42: itscoordinates,takenby GPSreading,
are 12'47.63' North,14O07.14'East.
25.31 The letter continues:
"On the 23rd of the same month, the Camerouniansoldiers hoisted a
flag in the Village. The officials gatheredthe people and urged them
to CO-operatewith the newly appointed Bulama and further informed
them that the village is part of Cameroun. They yamed the people
that anybody who disobeyed orders from the Camerounian
Government would be sacked from the area ... In addition ...the
Camerounians have gone as far as collecting taxes from Nigerian
citizens. Theamount ranges from N30-NI20 withno receipts." (NC-
M 375)25.32 This information was sent by telegram from the Ministry of Externa1Affairs in
Lagos to the Nigerian Embassy in Yaoundéon 26 March 1985. This telegram
states:
"In viewof urgencyof matter FMGS [FederalMilitaryGovernment's]
concern conveyedto Cameroonian Embassyby Note Verbale. In the
Note, FMG invites attention to danger posed by encroachment of
Cameroonian soldiers into Nigerian territory and impresses upon
Cameroon Governmentto desist from layingclaim on Kirta Wulgoor
any village on Nigerian territory in the spirit of good neighbourly
relations betweenthe countries." (NC-M 376)
25.33 An interna1report from police operations inMaiduguri tothe Nigerian Policein
Lagos(NC-M 377) sratesthat Cameroonianpolicecame uiKirtaVillage on30 June
1986for a taxcollection drivewherc theydemandedthe surnof 40 Naira fromeach
adult. The Camcroonian Police claimed that thearea in which the villagers were
livingwas within the Cameroon Republic. The villagcrs refusingto yield to thcse
demands, the CameroonianPolice left with the promisethat they would come hack
on unscheduleddates, andanybody who failedto paythe tax wouldbearrested and
25.34 A letter dated 2 July 1986 from Ngala Local Government Area to the Military
Governor'sOffice inMaiduguri repeatsthis information. It states that the Bulama
of Kirta Wulgo had stated that one of the traditional culers of Cameroon is
harassing Nigerians, forcinthem to pay a levy of 40 Naira each. It states that:
"...about five(5) Camerounian officiaiswent to the settlementcalled
Kirta at the shores of the Lake Chad on Monday30/6186around 2.00
p.m. and demanded 40.00 [Naira] from al1taxable adults as Haraji.
However our people refused to dance to their tune as they are not
citizens of Cameroun. The Camerounians threatened the Villagers
with shot guns and pistols but they showedno fear instead they too
confronted the Camerounians with their local weapons. The
Camerounians sensing the dangers inherent rheyabsconded leavinga
warning thatthey will go back and notify their authority to send a
team of armed security agents tosurround the settlement .tointimidate them so as to make the collection of the levy easy for them." (NC-M
378)
By a letter dated 4 May 1987 from Ngala Local Government Area to the Military
Govemor's Office in Maiduguri:
"the village Head of Wulgo indicated that about (25) twenty five
armed Camerounian Soldiers together with some twenty two civilians
have occupied about 16 Villages at the Shores of the Lake Chad which
are believed to be within ourterritory. The Carnerounians went to the
area in four vehicles, this happened on Saturday 2nd May*1987. The
Camerounian people have even hoisted their National Flag at both
Doro Kirta and Kirta Wulgo." (NC-M 379)
Atelex dated 6 May 1987(NC-M 380) states that further information receivedfrom
the joint patrol (which includedeprescntatives from Nigeria, Cameroon and Chad)
reveals thatabout 200 Cameroonian soldiers with six vehiclesarrived at Doro Kirta,
hoisted the Cameroonian national flag and started writing down the names of the
inhabitants of the area.
A further telex from Maiduguri to Lagos (NC-M 381) states that the allegation was
investigated by ateam including the Chairman of Ngala Local Government Area
and a Lieutenant of the 21st Annoured Brigade. This team found the Cameroonian
flag hoisted at Wulgo Kirta. The team then went on to Dom Kirta where the flag
had already been removed by Nigerian soldiers, but were informed that
Cameroonian soldiers had come back to Doro Kirta with artillery guns on 6 May
1987,combed the bush and gave orders that any Nigerian soldier sighted should be
shot. The Cameroonians had already removedsome Bulamas from the villages and
substituted them with other people of their choice.
It was against the background of this succession of incidents that Nigeria sent a
Protest Note dated 8May 1987, in which it stated that: "reports have reached the [Nigerian] Ministry [of Extemal Affairs]
conceming intrusion by Camerounian soldiers and agents intosome
border villages in Ngala Local GovenurientArea of Bomo Statein the
Federal Republic of Nigeria. The reports also indicate that this has
not been the first time such incidentshaveoccurred. Reports further
state that not only were the Nigeriannationals molested, but their
villages were also occupied by the Camerounian soldiers and agents,
the Nigerian flags in the villages were pulled downand burnt, and the
Cameroon flag was hoisted in their place, evenon Nigerian territory."
(NC-M 382)
25.39 With respect to each of the incidents referred to in paragraphs 25.29 to 25.38,
Nigeria claims a declaration that it engages the international responsibility of
Cameroon, with compensation in the form of damages, if not agreed between the
parties, therito be awardedby the Court in a subsequrnt phase of the case.
25.40 On the face of the Application (paragraph 20) and the AddirionulApplication
(paragraph 17), it seems clear that issues of State responsibility in relation to the
boundary sector North of the Bakassi PeninsuIa and South of LakeChad are
excluded from both Applications. Nonetheless, to the extent that the Court may
hold that State responsibility claims in relation to an infringement of a disputed
boundary are sufficiently comected with clairns for the delimitation of that
boundary, then Nigeria isentitled to bring its owncounter-clairnsunder Article 80
with respect to the central boundary ~ector.~" Moreover it is entitled, as a
minimum, to bring counter-claims in relation to any incidentsor rnattersoccurring
at any time prior to the filing of its Counter-Memurial,quite apart from any
'" This doesnot inanywayprejudicethe positionof Nigeriain relattonthe scopeofCamemon' s pplications.
On their properinterpretatiCameroon'sApplicarionsinvokeincident$ofStaΠrefiponsihiliqonly in Rakassi
andLakeChad,aiidihçAddirinnelApplicntionlimitsitseliroie cçnrrollandxccmrtOquestion*i>fdelimitatiori.
Tlie Courthas hçldthat th"dispute"asb thç centralsecbris withinipjurisdictioandi~ pnrtofthe case.
Sinçc Cameroontreamboundarydelimitation and Surçrcsponsibilitissuein relaiioiobouridaryiiicideiiis
as cluscly relawitcannotohjectIo NigeriabringiiigSiair:rcspunsihilitycounterclaimsunderA80iof the
Rules iii relaitoithai sectur. allowance the Court may make to both parties to continue.to present funher
incidentsoccurring subsequently as bases forStateresponsibilityclaim~."~'
25.41 In fact there have been a series of incidents involvingofficia1Carneroon claimsto
areas in the region of the boundary, or at least officia1support by Cameroon
gendarmesand local authorities for claimsmadeby individuals,often in the context
of land disputes. Along a poorly delimited, and largelyundemarcated, boundary
of this length, the occurrence of some incidentsis only to be expected. Itmust be
stressed that no-one, on either side, is in a position tospecify definitively the
geographicalcoordinatesof this boundary,and the relevanttreaties certainly do not
do so. Accordingly,in formulating these counter-claims. Nigeria Iiits itself (a)
to those cases where in itsvicw it is clcar that the relevantincidenthave involved
an incursion into areas indisputably Nigerian; (b) to cases which havc not hecn
locally and peaceablyresolved, and which are not otherwise stale; and (c)to those
cases where loss or damage, over and above the mere assenioti of a boundary
dispute or clairn, can be seen to have occurred.
25.42 Paniculars of these claims follow. Nigeria reserves the nght to provide further
evidence in respect of each of these in subsequent pleadings. A sketch map
showingthe locationsof these incidentscan be found at Map 76 in the AtIar.
(i) Tipsan
25.43 The position with respectto the internationalboundary in the area of Kontchaand
Tipsanis dealt with in Chapter 19above. It is shownthere that in accordance with
the relevant instruments, the town of Kontcha is in Cameroon, while Tipsan is
clearly in Nigeria. Atlas Map 77 showsquite clearly the position of the boundary
and the location of Tipsan, the River Tipsan andKontcha.
432 Judgme~itntlieReqirestfor Inte!piv"p.aras. 14-1525.44 On 9 August 1998, the Chief of Kontcha in Cameroon, Abubakar Ibrahim, invited
Jauro Umar of the village of Tipsan to his palace. The Chief of Kontchatold the
Jauro that Tipsan was in Cameroonian territory and that he did not want to see
Nigerian officials (immigration, police, game guards, hospital staff etc.) in the
village any longer. He ordered al1the inhabitanrsof Tipsan to leave andmove to
Bospan, a villagethree kilometres fromthe border into Nigeria. He also statedthat
the Cameroonian people wanted to invade and attack the Nigerians, but the Chief
of Kontcha hadmanaged to prevent that. Furthemore he ordered that the Jauro
was not to collect taxes from the villagers in Tipsanagain (NC-M 383).
25.45 A later intemal memorandum states that the villagers were ordered to relocate to
F'anpeni,about ten kilornetresfrom the border (NC-M 384).
25.46 This is only the most recent exarnple of Cameroon laying claim to Tipsan.
Documents exhibited by Camerooii reveal that, in Mnrch 1993,~~' a
François-RogerN'Nang sent a lcttcr to the Minister of Forcign Affairs at Yaoundé,
in which he stated thatthe Carncroon-Nigeriaborder at Koritchahad ken brought
back to the river Tipsan, three kilometres from Kontcha, whereas the cairn of
Stonesdemarcating the boundary left behind by the Germans fixed theboundary
nine kilometres from Kontcha. Cameroon is therefore claiming sk kilometres of
Nigerian territory.
25.47 A further Cameroonian document dated 10 March 199449 states thatthe Nigerian
Governrnenthas set up an emigratiodimmigration police station in Tipsan, which
is said to be five kilometres inside Cameroon tenitory.
433
ThisdatesteiiisfroininforiiiiiCamçriiiinOhçcrvorioriosii NigeF~reliiiliOhjeclion(AiitiexOC
1p. 305andNC-M385)b ,u1ilizIc~ipriiduccdasproofis uiidatThe informationin rheleneexJocic
wrongandunrcliahlcanyway:lhis wasnotanareawhereGeriiianpjllaor cairns everexisred.
4u Annex MC346. NC-M386 25.48 Another Cameroonian documentdated 24 March 1994J35statesthatNigeria has
constructed an emigration/immig~tion post 6.5 kilometres into Cameroonian
territory in the hamletof Tipsan, wh30eNigeriansoldiers havebeen installedby
the Nigerian Chief.Again this letter refers toa cairn of stones serup to mark the
frontier by the German colonials, but again this is erroneous. It bears repeating
diat this was not a German international border atany stageof Cameroon'shistory.
25.49 Cameroon sent a Protest Note on 19 June 1996 regarding the construction of
buildingsin Tipsan. Cameroon in this letter reaffirmsits claim to Kontcha, which
Nigeria does not claim and has never claimed. A second Protest Note of 24
January 1997 protests at "the Nigerian military occupation of Tipsan, a
Cameroonian locality in theFaro andDeo Division"A further Protest Noof15
April 1997 states thato16 December 1996,Nigeria "mcupied the Cameroonian
locaiity of Tipsan" (NC-388 to NC-M 390).
(ii) Maduguva
25.50 The area around Maduguvain Nigeria hasbeen an area where Cameroon has been
l
! making incursions into andclaims over Nigeriantemtory. Map 78 in the Atlas
shows the international boundary as the watershed, andthe villages of Guii,
Maduguva and Gaddamayo, together withadjoining farmlands, clearly within
Nigerian sovereignterritory.
1 25.51 There appear to have been three incidents associated withthe MaduguvalBurha
area. The first, dated from 1980, is raised in Cameroon's Observaiionson
Nigeria's PreliminaryObjections. Due to uncertaintiesabout the demarcationof
the boundary, it was agreed that the area in question was to.be treated as
no-man's-land,untilsuch time as the authoritiesagraedefinitivedemarcationof
435
Anntx MC 353,NC-M 387 the border in the area. This was a sensiblelocal resolution of the difficultyand it
is mentionedhere only by wayof backgroundto the followjngevenls.
25.52 The second matter is referredto in a letter dated 23 April 1986(NC-M 391) from
the Directorate of Interna1 Security to the State Director of Securiq at Yola,
AdamawaState, referring in tum to a further letter of 17 April 1986. According
to this letter, the Lamido (or Chief) of Burha in Cameroon had broken the
"standstill" agreement earlier arrivedat, and had authorised his people to enter
Nigerian territory and confiscatefarmlands belongingto the people of Guri. The
Chief of Burha had clairned that Maduguva,Jilingwaand Micha Krerepart of his
land, and thereforepart of Cameroonianterritory. The Chief ofBurha had allowed
Nigerians to harvest these farmlands, providcd thcy pay 20 large sacks of guinea
corn to him. If they failed to do so, the Chief threatenedro waituritil their crops
were ripe and then destroy [hem by lettinghiscaitle and horscsgrazeon the land,
thcreby causing econotnic hardship to the Nigerian farn~ers. Cameroonians had,
with thesanction of the Chiefof Burha, destroyedthe trees and crops on Nigerian
farmlands andplanted theirown crops instcad.
25.53 Furthermore in the village of Gaddamayo, one kilomette fmm Maduguva,
Cameroonian soldiers had infiltrated into the villageand harassed the Nigerian
people, particularly thevehicleowners.
25.54 In the event that these lands were to be successfullytaken over by the Chief of
Burha, about 3,000 Nigerians wouldbe displaced.
1
25.55 The third matter is set out in a letter dated4 June 1997 signed by a number of
citizens of Guri to the Emir of Mubi and copied to a number of local officials
(NC-M 392). It states that in April 1997, the peopleof Cameroon seizedNigerian
land including a scttlement called Tsukwatha, whicb the Chief of Burha claims
belonged tohis father, and took awaymost of the farmlands which bclong to the
local people. This letter states that there was a srnall settlement on the Micha mountain, and there is a cairn of stonesleftthereby the "whitepeople"to mark the
boundary. The letter setsout the names of 63 Nigerianfarmers who were arrested,
those who wereto be arrested, those who had the farms seized by Cameroonians
and those who werearrested and jailed, al1on the orders of the Chief of Burha.
25.56 Finally there is a letter from the Chairman of Mubi North LGA to the Permanent
Secretary for Political and Security Affairs of AdamawaState dated 24 September
1998, which states that:
"...Camerounian [nationals]of Burha in Cameroun Republic have
encroached into the Nigerian Territory. The Camerounians are
harassing and intimidating People of Maduguva Village in Nigeria.
Sirnilarly they were seen planting trees on Nigerian soil. They were
also [spotted]patrollingthe plantcd trees on the 22ndSeptember, 1998
..."(NC-M 393).
25.57 To the extent that the events recounted in these documents involve support by
Cameroon officialsand gendarmes for the landclaims of the Laniido of Burha, or
to theextent that the Lamido of Burha was himself actingon behalf of Cameroon
in seeking to convert a private dispute over landtenure intoa claim to sovereignty
mer territory, there is a basis for a claim of State responsibility on the part of
Nigeria.
(iii) TossolMberogo
25.58 The area of Tosso/Mberogois shown at Map 79 in the Atlas. It can be seen that
the twovillages clearly belong to Nigeria. Nonethelesstheyhave been the subject
of incidentsand incursionsfrom Cameroon.25.59 A Nigerian Protest Note toCameroon dated 4 October 1976States:
"on the 4th of May, 1976, sixteen policemen and soldiers fmm the
Republic of Cameroun crossed the border, intoNigerian villagesof
Tosso,Bissaula andMbererogo under the pretextthat they ivererrying
to locate the boundary demarcationbetween Nigeriaand Cameroun.
On their arrival in these villages, they started to question the local
chiefs whorefused tocooperate with them because theyknew that the
presence of those armed policemenand soldierswas a prelude to the
arrival of Cameroun Government tax officials who had previously
harassedthe Nigeriansliving on the border and forcedthemto paytax
to the Cameroun Government.
No sooner had these sixteen policemen and soIdiersleft than another
group of armed soldiers numbering about forty arrived in the area,
harassed the people and demanded them topaytax and if they refused
to abide by the soldiers'demand, they would have al1their huts burnt
down to ashes. This group of soldiers then immediately hoisted thc
Cameroun flag at the village of Bissaula and rhat of Cebo and
proceeded to Mbcrerogo village wherethcy looted the houses of two
prominentpeople, in thepersorisof Docte Danigsamaand Aliyu Dunyi
while DanfulaniChidawaand DariladiKurma were beaten and kicked
with armyboots for failitigtagive the soldicrgoab andchickensthey
demandcd. "(NC-M 394)
25.60 This event is now rather old, and if it were an isolated case would not warrant
bringing a claimat this stage. But subsequenteventsmake it clear thatit is not an
isolatedeventbut an aspect of a longer running dispute.
25.61 Thus on 26 September 1994, two Cameroonian gendarmes, Paul Massango and
Ngomdandi Manretoing, entered Mberogoarmed withan assault rifle and a sub-
machine gun as well as several rounds of ammunition. Theythere arrested two
Nigerian officials, Dantata Asura (a tax collecter) and Adarnu Dauda (an
Immigration Officer). Cameroon admits to this attack at paragraph 6.108 of its
Mernorial, though it refers to Mberogo as "Mbelogo". This attack.is further
,.
evidcricedin the documenü:exhibitedby Cameroon at Annexes MC 370. 371 and
372 of the Memurial,which also appcar at NC-M 395. The fact that Cameroori
tendered these official documents in cvidence can reasonably be taken as an admission by Cameroon of their contents. The presence of two armed gendarmes
in Mberogo on that date was also admitted by Cameroon in a Note dated 30
November 1994 from the Cameroon Ministry of Foreign Affairsto the Nigerian
Embassy in Yaoundé(which Note appears at NC-M 396 and at page 338 of Annex
OC 1 of Cameroon's Observationson Nigeria'sPreliminary Objections).
25.62 In a report by Police Commissioner Oyakhire, Military Administrator of Taraba
State, it is said that on 16 Febmary 1995 (NC-M 397), Cameroonian gendarmes
renewed their attacks on Nigerians in Mberogo Village, which compelled the
viltagersto flee from their homes to safety.
25.63 Fui-ther,in the saine report, Policc Coniniissioner Oyakhire rcvcaled thatin June
1995 (NC-M 398) the Brigade Commander of the gendarmes at Furu-Awa in
Cameroon wrote a letter to the Nigerian immigrationOfficersin Tossoand warned
them to leaveMberogo, a Nigerian village, within twenty-fourhous.
25.64 In its Observationson Nigeria'sPreliminaryObjections,Cameroondisclosesa Note
dated 28 January 1987,436in which it alleges that on 27 October 1986, Nigerians
from the village of Okwa invadedthe Cameroonian village of Matene, set fire to
houses in the area and destroyedsome crops. The Nigerian Protest Note in reply
(NC-M 399) states that the disputebetween the two villages:
l
"arose out of the attempts by Chief Kakwa Kunu, head of Matene
village, to impose a levy of NlOOon Okwa viltagers who crossed a
1912beacon, which he claimed was the [boundary]between Nigeria
and Cameroun, to reap the products of the 50 kiIometre-widebelt of
forest [separating] the two coniniunitie... The Matene villagers
[launchedl'an attack on Okwa village on July 29, 1986, acmss the
4M AnnexOC 1.page350 "Mawam Okwa" Stone, which the two communities had al1 along
recognised as the boundary between them, buming down 80 huts and
kidnapping two men and two children back to Matene."
25.65 Clearly Cameroon should bear State responsibility for a violent anack byitsown
officers, which it discloses in its own pleadings. A map of the area appears as Map
80 in the Atlas, based on a Russian map of the area, and with the relevant villages
marked in English.
25.66 With respect toeach of the incidents mentioned in paragraph25.44-25.65, Nigeria
claims a declaration that they engage the international responsibility of Cameroon,
with compensation in the form of damages, if not agreed between the parties, then
to be awarded by the Court in a subsequent phase ofthécase.
E. Other cases
25.67 These specific cases unfortunately do not exhaust the roster of incidents in which
Cameroon gendames or other officiais have made claims to areas along the border
on the Nigerianside, or haveharassed the Nigerian population. Funher claims are
set out invarious diplomatic Notes sent by Nigeria to Cameroon, and details are
given below.
25.68 A Protest Note dated 18January 1971Statesthat 19Nigerian citizens, includingan
Inland Revenueofficial, Mr Etim Okon, were arrested on 3 September 1970on the
They uvere subjected to severe
Nigerian side of the border near Atabong.
maltreatment and taken to Buea; where they were incarcerated for two months.
Furthemore, the note reveals that their property was confiscated by mernbers of
the Cameroon military patrol who distributed iarnongst themselws. (NC-M400)in 1975, Cameroonians from the areaof Saamcrossed the borderat MayoGertugal
into the area of Bamp in Nigeria, settled down,built housesand established farms.
Sincethen theyhaveclaimed that the areabelongsto the Republicof Cameroonand
have refusedto be assessed for tax, backing their resistancewith violence. On27
August 1975, two Nigerian Police Constables, in the area on a tax assessment
exercise weremanhandledand forcedto sign a declarationacceptingresponsibility
for starting troubles. The Ward Head of Bamp Villagewas abducted, tied up and
taken to Nwa in Cameroon. (NC-M401)
A situation report dated 11 January 1982revealsthat the VillageHead of Atabong
wasbeaten up and his two houses in Atabong wereset on fire by the Carneroonian
authorities because he had not paid thein money whic~hey had demanded. The
same report notes that there had been previous complaints about gendarmes
moiesting Nigerian citizens on Bakassi. (NC-M402)
A letterdated 20 December 1982from the Secretaryof the StateGovernrnentothe
Ministry of Foreign Affairs refers to the molestation of Nigerian fishermcnby
Carneroonian gendarmes. It Statesthat for the past three months Cameroonian
gendarmes have been molesting Nigerian fishermen in the villages of Atabong,
Abana and Inua Mba, forcibly seizing smoked fish and fishing materials, like
canoes and nets, and extorting money. Nigerians who have refused to pay have
been subjected to "al1 forms of inhuman treatments in detention camps".
(NC-M 403)
On 8 October 1984three armed Cameroon soldiers crossed Bua Village inBomo
Stateand arrested 12Nigerians with their commercialvehicle. They were detained
for eight hours and releasedon paymentof 100 Naira each. (NC-M 404)
In October 1984 a Cameroonianby the name of Mr Simon Ndongmu ciaimed the
Villageof Mubi-Toso,which is in Nigeria. He paraded hirnselfas the headof the
Village andcollected taxes on behalf of the Cameroon Government. Carneroon authorities also built a block of two classrooms in Labo Village and provided
medical facilities in the area. (NC-M 405)
25.74 On 18June 1985 some armed Cameroonian soldiers, under the guise of lookingfor
armed bandits, crossed intoBorno StatethroughJilbe control postçand entered the
Nigerian town of Kurna, where they illegally conducted a house-to-house search.
(NC-M 406)
25.75 On 8 Febmary 1990twoarmed Cameroonian gendarmes,Haman Adamaand David
Kwameni, entered Nigeria near the village of Karanchi. This armed incursion is
evidenced by documents appearing at pages 247 and 249 of Annex OC 1 of
Cameroon'sObservations on Nigeria's PrelirninaryObjections which also appear
at NC-M 407. The fact that Cameroon tendered thcsc official documents in
evidence can reasonably be taken as an admission by Cameroon that the incident
took place.
25.76 A rnilitarycable fromCalabar to Abuja fromMarch 1994revealsthai at 1030hours
on 28 February 1994, 125 Cameroonian soldiers invadedthe Nigerian settlernent
of Ine Ekpo on the Bakassi Peninsula. The soldiers droveawaythe villagers from
the village. (NC-M 408)
25.77 A letter dated 9 May 1994 from the Cross River State Director of Security to the
Director General reveals an incident where a Njgerian soldier, nor on duty, was
shot and killed by Carneroonian soldiers. (NC-M 409)
25.78 A rnilitaryreport dated 27 July 1995Statesthat on 26 July 1995, a civilian boat en
route from Oron in Nigeria to Cameroon canying 15 passenge& cap~izednear
Atabong West. The Chief of West Atabong, assisted by members of the Nigerian
, .
army.quickly organised a rescue mission. While the rescuers werein the course
of bringing the drowning people to the village, Cameroonian soldiers in a flyirig
, boat attacked them and fired at them with their guns. This incident followedan earlier attack on 24 July 1995 when Cameroonian soldiers raided Nigerian
fishermen near West Atabong, beat them up and carried away their fishing
marenals. The document also reports incessant extortion and harassrnent by the
Carneroonian soldiers. (NC-M 410)
25.79 With respect to each of the incidents referred to in paragraphs 25.68-25.78, Nigeria
claims a declaration that they engage the international responsibility of Cameroon,
with compensation in the form of damages, if not agreed between the parties, then
to be awarded by the Court in a subsequent phase of the case. PARTVI1
CONCLUSIONSAND SUBMISSIONS CHAFTER26
CONCLUSIONSAND SUBMISSIONS26.1 Beforc setting out the submissions of the Federal Republic of Nigeria, certain
formal resewations need to be made.
26.2 In itsAdditionalApplication, Cameroon asks the Court:
"to adjudge and declare ...
(f) That, in view of the repeated incursions of Nigerian gmups and
armed forces into Cameroonian territory, al1along the frontier between
the two countries, the consequent grave andrepeated incidents, and the
vacillating and contradictory attitude of the Federal Republic of
Nigeria in regard to the legal instruments definingthe frontier between
the two countries and the exactcourse of that frontier, the Republic of
Cameroon respectfully asks the Court to specify definitively the
frontier between Cameroon and the Federal Republic of Nigeria from
Lake Chad to the sea."
'26.3 In the Submissions contained in its Mernorial, Cameroon askcd the Court to
determine that the land boundary follows a line described by reference tnthe
provisions of certain instmments. For the reasons already given, those provisions
do not, of themselves, specify definitively the actual course of the boundary. Nor
would the process of applying those instruments insitube one of mere demarcation,
due to the significant difficultiesof interpretation and application that have actually
arisen at various points along the boundary, as well as the existence in certain
localities of well-established local agreements.437
26.4 Cameroon havingdefined the issue in terms of Article 17(f) of itsApplication - and
the Court having held, by reference to an alleged dispute over Tipsan, that the
whole boundary is in - it is in Nigeria's view not open to Cameroon
now to say that al1 it asks the Court to do is to make a declaration in terms of
''' Fordenils seeabove,Chapier19
438
~eetheJudgmen tf11June1998 atparas.92-94 particular instruments, without reference to the actual boundar)' in siru. There is
howevera risk that Cameroon will resile from the position taken in itsApplication,
and the effect of the ne ultrapetita mle might then present a difficulty. Against
that contingency, Nigeria accordingly asks the Court (pursuant to Article 80 of the
Rules, if necessary) to specify definitively the course ofthe boundary from the
mouth of the River Ebeji to the sea.
26.5 Nigeria reserves the right to ask the Court to specify definitively the course of the
boundary in situ, to the extent that it may emerge in subsequent pleadings that
Cameroon does not accept that course, as described in more detail by Nigeria. In
other words, it reserves the right to ask the Court, to the extent that further
differences of opinion arise between the parties in the course of the plradings, to
resolve those differences by interpreting and applying the relevantinsimments, $0
as to allow the boundary to be subsequcntly fixed in siruhy ordinary process of
demarcation.
SUBMISSIONS
For the rasons given herein, the Federal Republicof Nigeria, reserving the right to amend
and modify these submissions in the light of the further pieadings in this case, respectfully
requests that the Court should:
(1) as a ~reliminan, matter decide to deal with the issues relating to the land
boundary.
(2) as to Lake Chad, adjudge and declare:
that sovereignty over the areas inLake Chad deAned in Chapter 14 of this
Counter-Mernoria(lincluding the Nigerian settlenientsidentifiedin paragraph
14.5 hereof) is vested inthe Federal Republic of Nigeria; that the proposed"demarcation" under the auspices of the Lake Chad Basin
Commission, not havingbeen ratified by Nigeria, is not bindingupon it:
that outstanding issuesof the delimitation anddemarcationwithin the area of
Lake Chad are to be resolved by the Parties to the Lake Chad Basin
Commission withinthe frameworkof the constitutionand procedures of the
Commission.
as to the central sectors of the land boundary:
(3)
acknowledging that theparties recognise that the boundaiy between the
mouth of the Ebeji River and the point on the thalweg of the Akpa Yafe
which isoppositethe mid-pointofthe tnouthof ArchibongCreek is deliniited
by the followinginstnimcnts:
(a) paragraphs3-60ofthe ThomsonlMarchandDeclaration, confirmedby
the Exchangeof Letters of 9 January 1931;
(b) the Nigeria (Protectorate and Cameroons) Order in Council of
2 August 1946, section6(1) and the Second ScheduIethereto;
(c) paragraphs 13-21of the Anglo-German DemarcationAgreement of
12 April 1913;
(d) Articles XV-XVIIof the Anglo-GermanTreaty of 11 March 1913;
and
acknowledging further that uncertainties as to the interpretation and
application of these instnirncnfs,and establishid local agreetnecis in certain
areas, mean that the actual course of the boundary cannot be definitively
specifiedmerely by refcrenceto those instmmenh; aflrm that the instruments mentioned aboveare binding on the parties (unless
iawfully varied by them) as to the course of the land boundaq.
as to the Bakassi eni insu laadjudgeand deciare:
(4)
that sovereignty over the Peninsula (as defined in Chapter 11 hereof) is
vested in the Federal Republicof Nigeria;
(5) as to the maritime boundary, adjudgeanddeclare:
d
(a) that the Court lacks jurisdiction to deal with Cameroon's claim-line,
to the extent that it impinges on areas claimedby Equatorial Guinea
andior Sio Tomé e Principe (which areas are provisionnlly identified
in Figur e0.3 herein), or alternatively that Cameroon's claim is
inadmissible to thatexterit; and
(b) that the parties are under an obligation, pursuato Articles 76 and 83
of the United Nations Law of the Sea Convention, to negotiate in
good faith with a view to agreeing on an equitable delimitation of
their respective maritime zones, such delimitation to take into
account, in particular, the need to respect existing rightsto explore
and exploit the mineral resources of the continental shelf, granted by
either party prior to 29 March 1994without written protest from the
other, and the need to respect the reasonablemaritime claims of third
States;
as to Cameroon's claims of State res~onsibiiity, adjudge and declare that
(6)
those claims are unfounded in fact and law; and
(7) as to Nieeria's counter-claimsas svecified in krt VI of this Counrer-
Mernorial,adjudgeanddeclarethat Cameroon kars responsibilis. to Nigeria in respect of those claims, the amount of reparation due therefor, if not
agreed between the parties within six months ofthe date ofjudgment, to be
determined by the Court in a further judgment.
21 May 1999
AlhajiAbdullahi Ibrahim OFR, SAN.
Honourable Attomey-General of the Federation
and Minister ofJustice,
Agent of the Federal Republic of Nigeria
Counter-Memorial of the Federal Republic of Nigeria