Rejoinder of The Federal Republic of Nigeria - January 2001 - Part I cha
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PART I
BAKASSI
CHAPTER 1
THE ORIGINAL TITLE OF NIGERIA:
THE 1913 TREATY AND ITS ANTECEDENTS
A. Background
(i) Cameroon's Applications of 29 March and 6 June 1994
1.1 So far as concerned the question of title to the Bakassi Peninsula,
Cameroon's initial Application of
29 March 1994 sought a declaration from the Court "that sovereignty over
the Peninsula of Bakassi is
Cameroonian, by virtue of international law, and that that Peninsula is
an integral part of the territory of
Cameroon".
1.2 Cameroon's Additional Application of 6 June 1994 made no further claim to title over the Bakassi
Peninsula.
(ii) Cameroon's Memorial
1.3 So far as concerned the question of title to the Bakassi Peninsula,
Cameroon, in its Memorial
contended in essence that
(1) the pattern of Anglo-German agreements between 1885 and 1913 estab
lished in practice that the
boundary between British and German territories ran to the west of the B
akassi Peninsula, leaving the
Peninsula on the German side of the boundary (MC, paragraphs 2.06-2.58)
;
(2) the Anglo-German Treaty of 11 March 1913 provided for a boundary b
etween British and German
territories which left the Bakassi Peninsula on the German side of the b
oundary (MC, paragraphs 4.277-
4.342);
(3) effectivités after the entry into force of the 1913 Treaty confirmed that Bakassi fo
rmed part of
German/Cameroonian territory (MC, paragraphs 4.420-4.454);
(iii) Nigeria's Preliminary Objections
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1.4 None of Nigeria's Preliminary Objections directly questioned the Court's jurisdiction over, or the
admissibility of, that part of Cameroon's Application which put in issue the question of sovereignty over
the Bakassi Peninsula (although certain other aspects of Cameroon's Application and Additional
Application indirectly affected that issue or made assumptions as to the conclusion
s to be reached in
relation to it). Indeed, although Nigeria submitted in its fifth Preliminary Objection that there was no
dispute concerning boundary delimitation as such throughout the whole le
ngth of the boundary from the
tri-point in Lake Chad to the sea, Nigeria stated that this was without
prejudice to Nigeria's title over the
Bakassi Peninsula: Nigeria accepted that there was a dispute over title
to that peninsula. Accordingly,
nothing said by the Court in its Judgment of 11 June 1998 (I.C.J. Repor
ts 1998, p. 275) was directly
relevant to the question of title to the Bakassi Peninsula.
(iv) Nigeria's Counter-Memorial
1.5 In its Counter-Memorial Nigeria's argument regarding sovereignty over the Bakassi Peninsula was
principally, in essence, as follows:
(1) the Kings and Chiefs of Old Calabar were acknowledged to possess i
nternational personality
including the capacity to conclude international treaties (NC-M, paragr
aphs 5.11-5.13, 6.15-6.26; and
see below, paragraphs 1.6 et seq., 1.31);
(2) Bakassi was included within the domains of the Kings and Chiefs of
Old Calabar (NC-M, paragraphs
5.15-5.19, 6.33-6.36; and see below, paragraphs 1.15-1.16);
(3) in 1884 the Kings and Chiefs of Old Calabar concluded a treaty wit
h Great Britain, by virtue of
which Great Britain established a Protectorate over the Kings and Chiefs
(NC-M, paragraphs 6.27-6.65;
and see below, paragraph 1.29 et seq.);
(4) under that Protectorate Treaty Great Britain acquired only certain
limited powers, and in particular
did not acquire sovereignty over the territories of the Kings and Chiefs
, which continued to be territory
belonging to them (NC-M, paragraphs 6.37, 6.45-6.60; and see below, par
agraphs 1.32, 1.41, 1.46-1.47);
(5) Great Britain and Germany (as the Protecting State for the neighb
ouring protectorate of Kamerun
(Cameroon)) concluded various agreements in and after 1885 to delimit
their respective spheres of
interest (NC-M, Chapter 7; and see below, paragraph 1.52);
(6) those Anglo-German agreements concluded between 1885 and 1893 and
which entered into force
adopted the Rio del Rey as the line of division between British and Germ
an spheres of interest in the
region, but did not otherwise deal with the boundary in the region of th
e Bakassi Peninsula; while
subsequent Anglo-German discussions up to 1913 which covered that region
did not lead to agreements
which ever became legally binding (NC-M, paragraphs 7.1-7.33, 8.1-8.19)
;
(7) the Treaty of 11 March 1913 between Great Britain and Germany had
in part the purported effect of
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transferring the Bakassi Peninsula to Germany (NC-M paragraph 8.24);
(8) the Bakassi Peninsula did not belong to Great Britain, which there
fore (since nemo dat quod non
habet) could not transfer it to another State (NC-M, paragraphs 8.26, 8.28-
8.40; and see below,
paragraphs 1.47, 1.58 et seq.);
(9) the relevant provisions of the Treaty were accordingly ineffective
to bring about that transfer (NC-M,
paragraph 8.40-8.48; and see below, paragraph 1.60 et seq.);
(10) the 1913 Treaty accordingly did not alter sovereignty over Bakass
i, the original title to which
survived the Treaty, maintaining the status quo ante (NC-M, paragraphs 8.41-8.42);
(11) no transfer of sovereignty resulted from the subsequent history o
f the Bakassi Peninsula up to the
Independence of Nigeria in 1960, during which period that area continued
to be under the authority of
the Kings and Chiefs of Old Calabar and of the Nigerian regional and loc
al government system (NC-M,
Chapter 9; and see below, Chapter 2).
(12) after Nigeria (and Cameroon) attained independence in 1960 Nige
ria continued to administer
Bakassi, and its original title to the Bakassi Peninsula was confirmed b
y historical consolidation,
acquiescence and recognition (NC-M, Chapter 10; and see below, Chapter
3).
B. The situation before the conclusion of the 1913 Treaty
(i) The City States of Old Calabar
The location of the City States of Old Calabar is shown on Fig 1.1.
1.6 The role of the original title vested in the Kings and Chiefs of Old
Calabar appears clearly from the
relevant passages in the Counter-Memorial of Nigeria, as follows:
"The title of Nigeria to Bakassi was originally a title vested in the Ki
ngs and
Chiefs of Old Calabar. The original title of Old Calabar was not affecte
d 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. B
y
the time of Independence in 1960 the original title to Bakassi vested in
Nigeria as the successor to Old Calabar.
The four bases of the Nigerian claim to title over the Bakassi Peninsula
are
as follows:
(1) Long occupation by Nigeria and by Nigerian nationals constituting
an
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historical consolidation of title and confirming the original title of t
he Kings
and Chiefs of Old Calabar which title vested in Nigeria at the time of
Independence in 1960.
(2) Effective administration by Nigeria, acting as sovereign, and an a
bsence
of protest.
(3) Manifestations of sovereignty by Nigeria together with the acquies
cence
by Cameroon in Nigerian sovereignty over the Bakassi Peninsula.
(4) Recognition of Nigerian sovereignty by Cameroon."
1.7 In the Reply the Government of Cameroon attacks the "pre-colonial" titles invoked by
Nigeria on
several bases. In the first place, Cameroon contends that the location o
f the City States is problematical,
and that the influence of the City States extended to the north and west
of Bakassi: see the Reply, pages
246-249, paragraphs 5.21 to 5.33.
1.8 For the sake of argument, it may be supposed that this is true. But
it would make no difference to the
legal position, which is that the United Kingdom and other States of the
relevant period recognised the
City States as treaty partners and, consequently, as having internationa
l legal personality.
1.9 The Counter-Memorial presents ample evidence of the treaty-making practice of the States in t
he
relevant period. Evidence is presented of seventeen treaties concluded b
etween the British Crown and
the Kings and Chiefs of Old Calabar: see NC-M, pp. 71-74, paragraphs 5.1
1-5.13. In the Reply
Cameroon simply ignores this evidence.
1.10 It is also clear that from time to time the individual City States
made agreements with each other.
See for example the Agreement between Henshaw Town and Duke Town (Annex
NC-M 15).
1.11 Further agreements are to be found in the pages of the Foreign Offi
ce Confidential Print, No.2193:
see Annex NR 1.
1.12 The Reply quotes various passages from the historian Professor Anene: see the Reply, pp. 247-8.
However, Professor Anene was not addressing the issue of international l
egal personality and in his
monograph he shows little or no interest in such matters.
1.13 The Reply shows no awareness of the general tendency of European States to make t
reaties with
African dynasties. This tendency and the relevant practice is described
in scholarly detail by Professor
Alexandrowicz, The European African Confrontation: A Study in Treaty Making, Leiden, 1973, pp. 94-
105 (and see also Alexandrowicz, Hague Academy, Recueil des Cours, Vol. 123-I, 1968, pp. 165-82).
Professor Alexandrowicz refers also to the extensive French practice and
emphasises that most of the
treaties entered into with African rulers were real and not personal tre
aties: see The European African
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Confrontation, pages 94-96. Thus the practice alluded to by Nigeria in the Counter-Memorial is by no
means exceptional.
1.14 Cameroon also fails to invoke any principle of inter-temporal law a
ccording to which African
States and Rulers did not have a treaty-making capacity.
1.15 In the Counter-Memorial Nigeria has invoked reputable evidence, including expert opinion, to
establish that the Bakassi Peninsula was at the material time a dependen
cy of Old Calabar: see NC-M,
pp. 74-5, paragraphs 5.15-5.19. In its Reply Cameroon contends that Bakassi did not belong to Old
Calabar: see the Reply, pp. 252-4, paragraphs 5.42-5.48. Moreover, Cameroon does not seek to e
xamine
the materials adduced by Nigeria either generally or individually. Camer
oon confines its response to
citations from the Western Sahara case and the Eritrea/Yemen Arbitration (Phase I). The passages
quoted by Cameroon are in very general terms and relate to regions with
histories which bear no
similarity to the conditions in the Bight of Bonny in the eighteenth and
nineteenth centuries.
1.16 In the submission of Nigeria the assertions of Cameroon must be rej
ected in view of its persistent
habit of ignoring the precise items of evidence presented by Nigeria in
the Counter-Memorial.
(ii) Pre-protectorate circumstances
1.17 Cameroon seeks to belittle the relevance of what it refers to as "p
re-colonial titles" (RC, paragraphs
5.49-5.60), and criticises Nigeria's emphasis on historic consideration
s (RC, paragraph 1.49).
Cameroon's observations are mistaken, There can be no doubt that the pre
-protectorate circumstances of
the Bakassi region are very relevant to the correct appreciation of subsequent events, includi
ng
particularly the 1884 Protectorate Treaty and the Anglo-German Treaty of
11 March 1913.
1.18 Nigeria would observe, first, that the correct term for the period
before 1884, when the Protectorate
Treaty was concluded, should be "pre-protectorate" rather than "pre-colo
nial". This is not just a question
of terminology (although even questions of mere terminology should be t
reated correctly) but reflects a
point of substance. This is that the Nigerian territories under consider
ation in the present context were
never colonies of Great Britain, but were territories under British prot
ection. Cameroon prefers to ignore
this distinction, and to treat the territories as British colonies and G
reat Britain as having in relation to
them the extensive sovereign authority possessed by a colonial power in
relation to its colonies. But this
is totally misleading, and, as was demonstrated in Nigeria's Counter-Memorial and is further explained
later (below, paragraph 1.22 et seq.), is neither in fact nor in law a correct representation of the Britis
h
protectorate over the relevant Nigerian territories.
1.19 In addition to Cameroon's misrepresentation of the true nature of G
reat Britain's relationship with
the Nigerian territories under its protection, Cameroon's attempt to dis
regard the pre-protectorate history
of the region is misplaced. It no doubt suits Cameroon's purpose to try
to ignore that history, since it
runs completely counter to the main thrust of Cameroon's case and demons
trates that the Bakassi area
was well within the limits of the territories subject to the authority o
f the Kings and Chiefs of Old
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Calabar.
1.20 Nigeria has drawn attention to the pre-protectorate history of the
region because it is directly
relevant to the question of title at present in dispute.
(1) First, any question of present title has to be seen not as a self-
contained issue standing apart from all
that has gone before, but must rather be seen as part of a historical co
ntinuum.
(2) Second, the pre-protectorate circumstances of the region are direc
tly relevant to the determination of
the territorial extent of the territories subject to the authority of th
e Kings and Chiefs of Old Calabar,
which in turn is a necessary prerequisite for any finding as to the exte
nt of the territories coming within
the scope of the Protectorate Agreement of 1884.
(3) Third, contrary to Cameroon's implication, Nigeria does not assert
that historical considerations take
the place of relevant legal considerations; Nigeria's position is rather
that historical considerations are
complementary to those legal considerations, and in particular are part
of the context in the light of
which they fall to be applied.
1.21 Cameroon's attempt to ignore pre-protectorate circumstances, and ev
en circumstances arising
before the conclusion of the Anglo-German Treaty of 11 March 1913, is an
understandable response to
the fact that those circumstances undermine Cameroon's argument as to th
e alleged rightfulness of
Cameroon's claims to Bakassi. But that cannot be allowed to obscure the
facts that the historical
considerations put forward by Nigeria are relevant to the questions of present title now before the Court,
and that by wishing to omit all mention of them Cameroon has put before
the Court a very inadequate
and partial account of the nature of the present dispute over Bakassi.
(iii) The British Protectorate
1.22 Cameroon has sought in the Reply, (paragraphs 5.61-5.91) to analyse the nature of protectorates as
comprising either 'international' protectorates (paragraphs 5.69-5.73)
or 'colonial' protectorates
(paragraphs 5.74-5.88). Cameroon places Nigeria in the latter category
, as a 'colonial protectorate'.
Cameroon completes this part of its argument by asserting that a 'coloni
al' protectorate is in international
law equivalent to a colony (paragraph 5.91), that the 'colonial' power
in a 'colonial' protectorate can cede
the protectorate's territory (paragraphs 5.89-5.91), and that the part
icular incidents of individual
protectorate arrangements (other than the basic distinction between 'co
lonial' and 'international'
protectorates) are primarily of internal and constitutional significanc
e and have no effect on the
international plane (paragraphs 5.92-5.125).
1.23 Nigeria takes issue with each of these assertions, but before refut
ing each in turn Nigeria feels it
necessary to make a general observation about Cameroon's approach. This
is that Cameroon's analysis is
presented in terms of theoretical generality, and at no point gives careful consideration to the actual
terms of the particular protectorate agreement which has to be applied i
n the present case.
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1.24 It is necessary to emphasise that concepts such as 'international p
rotectorate' and 'colonial
protectorate' are the constructs of writers and commentators, in seeking
to rationalise, for presentational
convenience, the many varied arrangements which may come under the gener
al heading of 'protectorate'.
Those concepts have no place in the actual practice of States. States do
not establish a relationship which
they call an 'international' or 'colonial' protectorate, and from which, hav
ing given it some such label,
they deduce certain consequences: they simply establish a relationship o
n the basis of and in the
particular terms of a treaty. How others may categorise the results of t
heir treaties is no concern of
theirs.
1.25 The notion of a colonial protectorate, in so far as it had any subs
tance, was a political rather than a
legal matter. Legally, it is a contradiction in terms: the 'colonial' el
ement was either in conflict with the
terms of the treaty of protection or, being nonetheless given effect by
annexation, destroyed the
'protectorate' element. As explained by Alexandrowicz, The European-African Confrontation: A Study
in Treaty Making (1973) (a writer correctly described by Cameroon as a "specialist on
these questions":
RC, 5.75): 1
"In fact it can hardly be maintained that the Colonial Protectorate (wh
atever
its meaning in municipal law) could fit into the edifice of traditional
international law...
The 'Colonial Protectorate' was bound to remain a shadow of a legal
institution which could neither take shape by intention nor by actual
annexation. In the first case it was a political expectancy, in the seco
nd case
there was no more room for any protectorate...
The transformation of the classic protectorate into the colonial protect
orate
was in its essence not a legal but a political development. The texts of
the
treaties of protection show no trace of such development. Intention to a
nnex
the territory of the protected State could not have been stipulated by t
he
contracting parties [to the Berlin Act 1885]. It was the arrangement ado
pted
behind the scenes of the Berlin Conference by which the signatory powers
gave each other carte blanche to absorb protected States, which led to a
deformation of the Protectorate as such. It has been emphasised that suc
h an
arrangement could not affect the validity of the treaties of protection
with
Rulers, for pacta tertiis nec nocent nec prosunt. The colonial protectorate is
the outcome of a para-legal metamorphosis and has no place in internatio
nal
law as a juridically justifiable institution. It was at most a political
2
expedient."
1.26 It does not help in establishing the legality of the concept of 'co
lonial protectorate' to argue that the
'colonial' power had, as a matter of its internal law, plenary powers in
relation to the protectorate. First,
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in many instances (and certainly in relation to Nigeria) it did not ha
ve plenary powers (see particularly
below, paragraphs 1.32, 1.41, 1.46-1.47); second, the international rig
hts and duties of the parties are
governed by the treaty of protection; third, the treaty of protection wi
th the Kings and Chiefs of Old
Calabar, while imposing some limits upon the exercise of some of their international powers, did not
deprive them of their international status (see particularly below, par
agraphs 1.9-1.13, 1.31-1.32, 1.46);
and fourth, the assumption of plenary powers would be a breach of the tr
eaty of protection, and
municipal law cannot be invoked as a justification for a breach of a tre
aty obligation.
1.27 Nor does it help establish the concept of a 'colonial protectorate'
by adducing arguments based on
the transfer under a treaty of protection of all or virtually all the ri
ghts of sovereignty of the protected
State. Thus it is irrelevant in the present case to argue that the trans
fer to a protecting State of a right of
cession of the protected State's territory shows that the protected Stat
e is fully under the sovereignty of
its protector, thereby justifying the use of the term 'colonial protecto
rate' (RC, paragraph 5.89). The fact
is that the Kings and Chiefs of Old Calabar granted no such right to Gre
at Britain: see e.g. paragraph
1.46 below. At least in the case of Nigeria, the transfer of rights to Great
Britain was less extensive than
that which occurred in many other cases, and conclusions drawn from the
situation of other protected
States (even if correct in principle and in relation to them) are of n
o application in the present situation.
1.28 The argument comes back to the essential point: the nature of Great
Britain's rights in relation to
the Kings and Chiefs of Old Calabar, and their status under the protecto
rate, depends not upon
generalisations drawn from the works of commentators examining a varied
range of protectorates, but
exclusively upon the precise, particular terms of the Treaty of Protecti
on of 1884 (Annex NC-M 23).
The relationship established by States through their treaties with the p
rotected State is governed, as a
matter of their internal and constitutional law, by the terms of that la
w as applied to the particular treaty
in question; and the relationship is governed, on the international plan
e, solely by the actual terms of the
particular treaty into which they have entered, as properly interpreted
and as it may be amended from
time to time. Those terms must be respected since not only do they estab
lish the limits upon the
protecting State's powers, but they are at the same time the very basis
for such powers as are conferred
upon it. It is those terms which must be examined in order to reach a co
nclusion as to the incidents
attaching to any particular protectorate arrangement. The need to look a
t the terms of each particular
treaty establishing a protectorate relationship is clearly established, and is wholly consistent with the
general judicial approach of considering only the facts and circumstance
s of the particular case before
the Court and reaching decisions relating solely to those particular fac
ts and circumstances.
1.29 Against that general background, Nigeria will now turn to the sever
al arguments advanced by
Cameroon. First, Cameroon seeks to apply its artificial classification o
f protectorates to the
circumstances of the Nigerian protectorate in such a way as to classify
it as a so-called 'colonial
protectorate'. Cameroon has managed to reach that conclusion without any
consideration of the terms of
the 1884 Treaty between Great Britain and the Kings and Chiefs of Old Ca
labar. There is, however, no
4
basis in that Treaty to justify such a conclusion. Nigeria has in its Counter-Memorial already examined
the relevant provisions of that Treaty, and nothing in those provisions
serves to attribute to the Nigeria
protectorate a 'colonial' character. Nigeria notes, in passing, that Cam
eroon has not dissented in any way
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from the analysis of the Treaty's terms given in paragraphs 6.37-6.65 of
Nigeria's Counter-Memorial.
1.30 Without repeating in detail the points there made by Nigeria, it is
convenient to summarise them
briefly here:
(1) the 1884 Treaty established British protection over the territorie
s in question, and Great Britain did
not acquire territorial sovereignty or other title over them (NC-M, par
agraph 6.37);
(2) the notion of a 'protectorate' or 'protected State' was at that ti
me, and is now, well known in
international law (NC-M, paragraphs 6.38-6.44);
(3) the distinction between the acquisition of sovereignty over a colo
ny and the establishment of a
Protectorate was well known to the British Government at the time (NC-M
, paragraphs 6.45-6.60);
(4) the legal nature of any particular Protectorate depends upon the t
erms by which it was established
(NC-M, paragraphs 6.61-6.62);
(5) the terms of the 1884 Protectorate Treaty establish that the Kings
and Chiefs of Old Calabar retained
their separate international status and rights, including their power to
enter into relationships with other
international persons, although under the Treaty that power could only b
e exercised with the knowledge
and approval of the British Government (NC-M, paragraphs 6.63-6.65).
1.31 It is to be noted that the negative way of expressing this last res
triction (i.e. in effect, not to enter
into international relations except with British approval) necessarily
implies not only that the power to
enter into such relations continues to exist and can be exercised when t
hat approval is given, but also
that the power existed before the Protectorate Treaty placed restraints
upon its exercise, and further that,
but for the restriction imposed, it would have continued in full even af
ter the establishment of the
protectorate.
1.32 Cameroon's assertion that in international law a so-called 'colonia
l protectorate' is equivalent to a
colony is without foundation. Not only is the very concept of 'colonial
protectorate' as something distinct
from an 'international protectorate' an artificial construct without bas
is in the practice of States (and is
5
thus without basis in customary international law), but it flies in the face of the provisions of the 1884
Treaty, both taken literally and as read in their context. Not only did
the 1884 Protectorate Treaty not
take away from the Kings and Chiefs of Old Calabar their residual power
to enter into international
6 7
relations, but, for example, it imposed no restriction on their power to alienate
their territory,left them
largely free to settle their international differences for themselves, 8and left essentially unaffected their
sovereignty over their internal affairs.
1.33 Whatever may be said by commentators (or Cameroon) about this all
eged general concept of
'colonial protectorate', it has no relevance for the Nigeria protectorat
e: it is what it is, namely the product
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of a relationship established by a particular Treaty, the specific terms
of which govern the nature of the
relationship established by it. Those terms speak only of 'protection',
and nowhere of anything
resembling some form of colonial status.
1.34 The internationally distinct character of the Protectorate was evid
ent from the British practice in
relation to passports. Persons coming from the Protectorate were issued
with a "British Protected
Person" passport, and not a British passport such as was issued to perso
ns coming from the colonial
areas of Nigeria.
1.35 Similarly, the extension of treaties by the United Kingdom to its v
arious dependent territories
treated the Protectorate both as separate from the United Kingdom and as
a distinct entity from the
Colony. A typical example of many such instances arose in relation to an
Anglo-Belgian Convention
concluded in 1932 (Annex NR 2).
1.36 These last two points demonstrate the incorrectness of any argument
that once a treaty of protection
has been concluded it establishes a future relationship between the prot
ected and protecting States which
is exclusively internal rather than international. While in some respect
s their future relationship will
have an internal dimension, it by no means follows that it has an exclusively internal character.
Everything turns on the terms of the particular treaty of protection - a
lways bearing in mind that
protectorate status originates in a manifestly international act (a tre
aty), that the essence of protectorate
status is not one of annexation by the protecting State but rather of ex
tending its protection to a weaker
(and still continuing) State, and that the presumption is always again
st any loss of or restrictions upon
sovereignty.
1.37 The situation is no different if the Nigeria protectorate is consid
ered from the point of view of the
internal and constitutional law of Great Britain and Nigeria. This matte
r has been dealt with in Nigeria's
Counter-Memorial, at paragraphs 6.72-6.89.
1.38 In English law, the exercise of Great Britain's powers in relation
to the Nigeria Protectorate (and
other protectorates) was regulated by the Foreign Jurisdiction Acts. As
the title of those Acts provides,
the powers exercised by Great Britain were those exercised in relation t
o a foreign country. The powers
in question are those which, in accordance with the preamble to the Acts
, the Crown has acquired by
treaty, capitulation, grant, usage, sufferance and other lawful means: i
t is thus only those particular
powers which are to be exercised in accordance with the provisions of th
e Acts, since the Acts could not
unilaterally give the Crown greater powers internationally than it had b
een granted by the treaty of
protection. It is thus only those treaty-based powers which the Crown ma
y lawfully hold and exercise in
relation to the (foreign) protected State "as if" they had been acquir
ed by cession or conquest, i.e. as if it
were a colony. This language clearly shows that a protected State is not
, in English law, a colony either
in law or in fact. Indeed, English legislative measures right through th
e period 1854-1960 carefully and
consistently distinguished between British colonial territory in Nigeria
and the protectorate (NC-M,
paragraphs 6.66-6.83).
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1.39 In applying the provisions of this domestic legislation to the Brit
ish Crown's powers in relation to
protected States, the Courts have acknowledged that the substantive exte
nt of the Crown's powers is
governed by the treaty of protection, and is limited.
"In Kenya Colony the jurisdiction of the British Crown in unlimited; but
in
the Kenya Protectorate it is only limited. It is limited to such jurisdi
ction as
the Crown has acquired by treaty, capitulation, grant, usage, sufferance
and
other lawful means": Nyali Ltd. v. Attorney-General [1956] 1 QB 1, 14
(Court of Appeal: quoted at NC-M, paragraph 6.82).
Moreover, in English law throughout the period of the protectorate over
Nigeria, protected States not
only retained their separate international personality but enjoyed sover
eign immunity from the
jurisdiction of the English courts: Mighell v. Sultan of Johore [1894] QB 149; Duff Development
Company Ltd. v. Government of Kelantan [1924] AC 797; Sultan of Johore v Abubakar Tunku [1953]
AC 318.
1.40 A separate question is whether, in the event of a breach by the Cro
wn of the treaty of protection,
those affected by the breach have a remedy in the English courts. The an
swer may well be not, because
9
of the English procedural rule that the Crown's acts of State (which include the making of treaties) are
non-justiciable, and that treaties may not be relied on directly in Engl
ish Courts. This essentially
procedural rule of non-justiciability in domestic law is, of course, qui
te distinct from the separate and
substantive issue of whether the act in question was in truth a breach o
f the treaty of protection. At the
international level that substantive question is justiciable, and the appropriate legal consequences can be
drawn from a finding that action taken was in breach of the relevant tre
aty.
1.41 An essential element in Nigeria's argument is that Great Britain ha
d no power under the 1884
Treaty of Protection to cede territory without the consent of the Kings
and Chiefs of Old Calabar. As far
back as the eighteenth century it was acknowledged that the powers of th
e protecting State were limited
by the terms of the treaty of protection: should the protector
"assume a greater authority over the [protected] one than the treaty of
protection or submission allows, the latter may consider the treaty as
10
broken, and provide for its safety according to its discretion".
1.42 In this context, a situation which arose in 1890 in relation to the
British Protected State of Brunei is
very relevant. Brunei became a British protected State by virtue of a Tr
eaty concluded between Great
Britain and the Sultan of Brunei in 1888. 11 That Treaty granted Great Britain more extensive rights and
authority over Brunei than were granted by the Treaty of 1884 with the K
ings and Chiefs of Old
Calabar. In particular, so far as concerns relations with other States,
the Treaty with Brunei provided, in
Article III -
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"The relations between the State of Brunei and all foreign States, inclu
ding
the States of Sarawak and North Borneo, shall be conducted by Her
Majesty's Government, and all communications shall be carried out
exclusively through Her Majesty's Government, or in accordance with its
directions;..."
Under the 1884 Nigerian protectorate treaty Great Britain's powers in re
lation to dealings with other
12
States were less than those it possessed under the 1888 Treaty with Brunei: in
effect, whereas the
Kings and Chiefs of Old Calabar could have their own dealings with forei
gn States so long as they had
the consent of the British Government, Brunei's dealings with foreign St
ates could only be conducted by
Great Britain.
1.43 Yet when, in 1890, Great Britain was negotiating with The Netherlan
ds for the settlement of a
territorial dispute in Borneo by the adoption of a compromise boundary l
ine which might have involved
conceding in negotiation land which arguably belonged to the Sultan of B
runei, the Foreign Office was
of the view that
"... it would appear doubtful whether Her Majesty's Government would be
justified in accepting such a definition of the boundaries on behalf of
the
States concerned without having previously obtained the consent of the
Rulers of those States".
On consulting the Law Officers of the Crown, Great Britain's Attorney-Ge
neral advised that
"... if any of the territory proposed to be given to the Dutch under the
boundary compromise is in fact part of the possessions of Brunei or
Sarawak, Her Majesty's Government would not be justified in accepting
such a definition, so as to bind the Rulers of those States without thei
r
13
consent."
1.44 This attitude was consistent with that adopted by the King's Advoca
te, Sir Herbert Jenner, in 1833,
in relation to the Ionian Islands (under British protection). He advis
ed that the power of alienating any
part of the protected territory was not such as necessarily belongs to t
he protecting State (see McNair,
International Law Opinions (1956), Vol. 1, p. 39). The position was complicated by the Islands
having
been placed under British protection by a treaty with other States. In t
he event the Islands were
transferred by Great Britain to Greece only after the consent of the oth
er treaty parties and of the Ionian
Islands had been obtained.
1.45 Given the undoubtedly correct conclusion reached in relation to Bru
nei, which was a protected
State which had granted to Great Britain virtually complete authority ov
er its external relations, a similar
conclusion in relation to a protected State which had not granted to Great Britain such absolute control
over its external relations is an a fortiori case.
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1.46 Comparison between the Nigeria and Brunei treaties of protection is
revealing in other respects,
showing the Kings and Chiefs of Old Calabar to have been subject to a le
sser degree of control than that
exercised over an otherwise broadly equivalent protected State:
(1) Thus the Brunei treaty required all differences between the Sultan
of Brunei and the Government of
any other State to be settled by the decision of the British Government
(Article III); the equivalent
provision in the treaty with the Kings and Chiefs covered only disputes
between the Kings and Chiefs
themselves, and between them and British and foreign traders, and neighb
ouring tribes (Article IV).
(2) The Brunei treaty prohibited Brunei from ceding or otherwise alien
ating Brunei territory (Article
VI); no such prohibition applied to the Kings and Chiefs of Old Calabar
. Thus not only were the Kings
and Chiefs able to have direct dealings with foreign States but they wer
e also under no specific restraint
in ceding their territory if they had wanted to do so: had they wanted t
o cede Bakassi they could have
done so within the framework of the Treaty of Protection, and had no nee
d to rely on Great Britain to do
it for them.
1.47 It is thus clear from the terms of the 1884 Treaty that Great Brita
in's authority in relation to the
Kings and Chiefs of Old Calabar did not include the power to conclude on
their behalf treaties alienating
their territory, that such a treaty concluded by Great Britain was not a
treaty authorised in accordance
with the treaty of protection, and that it was therefore not made by Gre
at Britain within the scope of its
authority. The 1913 Anglo-German Treaty was thus in relevant part outwit
h the treaty-making power of
Great Britain, and that part was not binding on the Kings and Chiefs of
Old Calabar.
1.48 Cameroon argues that the Nigerian and neighbouring protectorates ha
d their frontiers changed by
the protecting State without local consent (RC, paragraphs 5.101-5.111)
. This argument refers to two
kinds of frontier changes: first, various changes to internal constituti
onal boundaries affecting the
Nigerian protectorates (RC, paragraphs 5.102-5.106), and second, vario
us changes to the international
boundaries with neighbouring States (RC, paragraphs 5.107-5.110).
1.49 So far as concerns internal changes to the territorial limits of th
e various Nigerian territories, three
considerations have to be borne in mind:
(1) The various territories in what is now Nigeria did not all have th
e same status: there was a distinction
between colonies and protectorates, and of the latter some were under Br
itish protection by virtue of
treaties with the local Rulers, while others came under British protecti
on in other ways, such as by virtue
of proclamations.
(2) The terms of the different protectorates were thus themselves diff
erent, and actions which might be
inconsistent with the terms on which one protectorate was exercised woul
d not necessarily be
inconsistent with the terms of others.
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(3) All the protectorates had in common that they were under the prote
ction of Great Britain. Whatever
changes might be made in internal administrative arrangements, the prote
ctorates remained under British
protection and were not being given away to some other State: whatever a
dministrative changes might
have been made, the whole territory of the Kings and Chiefs of Old Calab
ar placed under British
protection by the Treaty of Protection of 1884 remained throughout the p
eriod up to Independence under
the protection of the British Crown.
1.50 In the light of these considerations, it is quite wrong to conclude
that the making of internal
administrative changes shows that, in the particular case of Bakassi, th
ere was nothing unlawful in
making the kind of external territorial change involved in purporting to cede to Germany a part of
the
territory belonging to the Kings and Chiefs of Old Calabar. Such a purpo
rted cession was not within the
powers vested in Great Britain by the terms of the particular treaty in
point, namely the Treaty of
Protection of 1884, and would have involved not the protection of that t
erritory by Great Britain but its
transfer out of British protection.
1.51 So far as concerns the changes to international boundaries Cameroon
cites in this respect the
transfer of Katanu and Appa to France by virtue of an 1889 Anglo-French
Treaty (RC, paragraph 5.107)
and the Anglo-French arrangements and treaties of 1890, 1898 and 1904 co
ncerning the territorial extent
of the Kingdom of Sokoto (RC, paragraphs 5.108-5.111). These territori
al dispositions are beside the
point in the context of the issues at present calling for decision by th
e Court.
1.52 By comparison with the situation of Bakassi after the conclusion of
the Anglo-German Treaty of
March 1913, those instances involved different protectorate arrangements
, with different terms and
involving different parties, and different international arrangements wi
th different backgrounds and
involving different parties. The Court is not called upon to decide upon
those different matters. Contrary
to what Cameroon says at paragraph 5.111 of the Reply, nothing which the Court may decide in the
present case to the effect that the purported transfer of Bakassi to Ger
many was in breach of the Treaty
of Protection of 1884 will have any effect upon Nigeria's borders with o
ther States not involved in the
present proceedings.
1.53 Cameroon seeks to argue that Nigeria's claim to Bakassi involves a
return to an earlier (i.e. pre-
protectorate) situation, and that (citing the recent Award of the Arbi
tral Tribunal in the Eritrea/Yemen
case 14) such a doctrine of 'reversion' finds no place in international law (
RC, paragraphs 5.56-5.59).
There are, however, significant differences between the circumstances wi
th which that Arbitral Tribunal
was dealing and the circumstances now before the Court. There, the attem
pt was being made to assert
the revival of an earlier (Yemeni) sovereign title upon the demise of
an admitted subsequent (Ottoman)
sovereign title over the territory in question. In effect the Tribunal h
eld that the earlier title had been
completely extinguished by the subsequent Ottoman title, so that with th
e demise of that intervening
Ottoman title there was nothing in the way of a Yemeni title which could
thereupon be revived. In the
present case the situation is different. There is no admitted intervenin
g sovereignty over the Bakassi
Peninsula: first, because Great Britain itself, being only a protecting
State, never had sovereignty over
protectorate territory; second, because there was no lawful transfer of
territorial sovereignty to Germany;
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third, because Mandatory and Trusteeship powers did not themselves posse
ss sovereignty over the
territories subject to their administration; and fourth, because no acti
vities by Cameroon served to
establish that Cameroon had acquired sovereign title to Bakassi. In summ
ary, this is not a matter of
seeking, after Independence, to upset by reference to a pre-protectorate
title a territorial limit validly
established by the protecting State in agreement with a third State: it
is rather a matter of seeking to
assert, after Independence, the ineffectiveness ab initio of a territorial limit and transfer of territory
purportedly agreed by the protecting State, and the consequent continuation of (and not reversion to) the
title originally vested in the Kings and Chiefs of Old Calabar.
C. The Anglo-German Treaty of March 1913
(iv) The 1913 Treaty
1.54 Nigeria first recalls that in its Counter-Memorial Nigeria drew attention to the fact that various
Anglo-German agreements which pre-dated the Treaty of 1913 were concerne
d not with the distribution
of territorial sovereignty but with the allocation of 'spheres of influe
nce' only (NC-M, paragraphs 7.5-
7.33). Nigeria also drew attention to the fact that, contrary to the po
sition adopted by Cameroon in its
Memorial, a number of the potentially relevant pre-1913 Anglo-German 'agreements
' never in fact
entered into force or otherwise became legally binding for Great Britain
and Germany (NC-M,
paragraphs 8.1-8.19), in which context it is to be noted that the Treat
y of March 1913 made no reference
in its preamble or elsewhere to any earlier agreement between the partie
s. Nigeria notes that Cameroon
does not take issue with either of these points, and indeed expressly ag
rees with the second of them (RC,
paragraph 5.119).
1.55 In its consideration of Nigeria's arguments relating to the Anglo-G
erman Treaty of 11 March 1913
Cameroon notes, and does not dissent from, Nigeria's statement that no b
oundary pillars were erected in
the Bakassi area by the 1905-1906 Boundary Commission (RC, paragraphs 5
.115-5.116). Cameroon
seeks to reject the drawing of any conclusion from that fact, contending
instead that as the boundary was
defined by means of natural landmarks there was no need to erect artific
ial boundary markers (RC,
paragraph 5.116): and Cameroon goes on to assert that it was not aware
of any precedent requiring the
erection of pillars in the bed of a boundary river. However, the erectio
n of boundary pillars in the bed of
a boundary river is not the only way of erecting markers to show the cou
rse which a boundary follows
along the course of a river. Thus markers may be placed on the bank of a
river, with an inscription that
the course of the boundary follows a specified course through the middle
of the adjacent river.
Examples, of which Cameroon is well aware, are afforded by pillar 101, r
eferred to in paragraph 18 of
the Anglo-German Demarcation Agreement of April 1913, where the boundary
itself is in the thalweg of
the Magbe River, and pillars 89 and 91 (referred to in paragraph 16 of
the same Agreement) which mark
river junctions where the boundary itself follows the thalweg. Consequen
tly, the absence of boundary
markers further south, in the Bakassi area, is relevant, since it shows that there was no precise agreement
as to the course of the boundary in that area.
1.56 Cameroon seeks to argue that in any event Great Britain and Germany
were fully agreed upon the
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course of the boundary from Cross River to the sea (RC, paragraph 5.117
). However:
(1) both the British and German statements relied upon in this context
by Cameroon assert that the
boundary in that region had already been marked with boundary pillars by
the 1905-1906 Boundary
Commission, whereas as just noted those pillars did not extend into the Bakassi area; and
(2) the Anglo-German 'agreements' underlying this alleged unity of int
ention on the part of the two
Governments never entered into force and were never legally binding for
the two States (above,
paragraphs 1.5(6), 1.54).
1.57 Cameroon further seeks to argue that, although admitting that it wa
s only with the Treaty of 11
March 1913 that Anglo-German understandings as to the course of the boun
dary became legally
binding, 15nevertheless previous Anglo-German behaviour was sufficient to give the
ir understandings
legal force (RC, paragraphs 5.120-5.121). Nigeria cannot share the vie
w that where draft treaty texts are
expressly stated to be subject to ratification but in the event are not
ratified, nevertheless those texts and
actions taken in connection with them are to be treated as if they had b
een ratified and had acquired full
legal force and effect. Whatever the reasons may have been for their non
-ratification - and they were
various in each case, and differed for the two States involved - the inc
ontrovertible fact is that they were
unratified. It was only when the Treaty of 11 March 1913 was ratified that a legally binding te
xt came
into existence, and it was accordingly only then that the legal deficien
cies of the part of that text dealing
with the Bakassi Peninsula came into the open as the legal basis for thi
s part of the present case. Those
legal deficiencies centre on the application of the rule that nemo dat quod non habet.
(v) Nemo dat quod non habet
1.58 Cameroon's attempt to deal with this argument is singularly unpersu
asive. It may be noted that
Cameroon refers to this argument in the Reply, paragraph 5.125, and says that in substance it is dealt
with elsewhere in the Reply, citing paragraph 2.24 et seq. and paragraph 5.19 et seq., and referring to a
limited (but unspecified - simply "below") subsequent treatment of the
topic, which appears to be the
passage at paragraphs 5.162-5.169. Several points about this treatment "
elsewhere" of this matter may be
made.
(1) Paragraph 2.24 et seq. do not deal at all with the substance of Nigeria's argument. It merely
sets out
Nigeria's argument, and then goes on to deal with certain consequential
matters (which are themselves
dealt with below, at paragraph 1.60 et seq.) without at any point addressing the merits of the nemo dat
argument itself.
(2) Paragraph 5.19 et seq. concern the application (or as Cameroon would have it, non-application
) of
the nemo dat rule, rather than the rule itself. Thus Cameroon
(a) seeks to show that Nigeria has failed to establish a "Calabar" tit
le to Bakassi by questioning whether
the "Kings and Chiefs of Old Calabar" constituted an entity in internati
onal law and whether the Bakassi
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Peninsula fell under their authority (RC, paragraphs 5.19-5.48): Niger
ia has refuted these Cameroonian
arguments in this Rejoinder, at paragraph 1.6 et seq.;
(b) argues the irrelevance in principle of pre-colonial titles (RC, p
aragraphs 5.49-5.60): Nigeria has
rejected this Cameroonian argument in this Rejoinder (above, paragraph 1.17 et seq.); and
(c) relies on certain alleged distinctions in the natures of different
kinds of protectorate (RC, paragraphs
5.61-5.111): Nigeria has demonstrated the incorrectness of Cameroon's a
rguments in this Rejoinder
(above, paragraph 1.22 et seq.).
1.59 Thus Cameroon's arguments may be summarised as being in effect that
-
(1) The "Kings and Chiefs of Old Calabar" did not have international p
ersonality and did not have
territorial sovereignty over Bakassi;
(2) Great Britain as the protecting power did have territorial soverei
gnty; and
(3) therefore Great Britain had the legal power to agree with Germany
a boundary which left Bakassi on
the German side of the boundary.
It seems implicit in this line of reasoning that in Cameroon's view the
nemo dat argument does not apply
to the 'Bakassi provisions' of the March 1913 Anglo-German Treaty.
1.60 The unsoundness of this reasoning has been amply demonstrated by Ni
geria in the various
paragraphs of this Rejoinder referred to in paragraph 1.58 above. But in addition Nigeria notes that
Cameroon nowhere denies
(1) that "nemo dat quod non habet is a well-established principle of law and of legal logic - one of the
general principles of law recognised by civilised nations", as shown by
Nigeria in NC-M, paragraphs
8.28-8.40; or
(2) that where that principle applies it leads to the consequences whi
ch Nigeria attributes to it, namely
that the ensuing Treaty "was to that extent ineffective to achieve the p
urported transfer of territorial
sovereignty" (NC-M, paragraph 8.40).
1.61 Since Cameroon does not dispute the existence of the nemo dat rule and has failed to establish that
it is inapplicable in the present circumstances, it follows that the rul
e, and the consequences flowing
from its application as described by Nigeria, hold good in relation to t
he Anglo-German Treaty of March
1913.
(vi) Severability of defective treaty provisions
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1.62 Cameroon devotes considerable space to disputing Nigeria's argument
that the defective provisions
of the Anglo-German Treaty of March 1913 are to be severed from the rest
of the Treaty and regarded as
in law ineffective.
1.63 Thus Cameroon argues (RC, paragraph 2.22) that "Le droit internat
ional présume que les traités
délimitant une frontière posent une frontière permanente, dé
finie et complète en l'absence de preuves
manifestes du contraire". 16However, no such presumption exists.
(1) A boundary fixed by treaty is "permanent" only in the sense that i
t lasts until it is lawfully changed.
The same may be said of virtually any state of affairs established by a
treaty. In particular, a treaty-based
boundary may be changed by the express or implied consent of the parties
(including their subsequent
practice), or by a subsequent process of historical consolidation (as
to which, see below, Chapter 3).
(2) Similarly, a treaty-based boundary is only as "defined" as the ter
ms of the treaty stipulate. If those
terms do not define the boundary adequately, then the boundary is in fac
t and in law ill-defined and is
not by virtue of some alleged presumption rendered well-defined.
(3) So too, a treaty-based boundary is only as "complete" as the terms
of the treaty prescribe. If a treaty
fails, either by its terms or by virtue of some legal defect, to deal wi
th the boundary in its entirety, then
the treaty's prescription of the boundary will be incomplete, and the re
sulting lacuna is not filled by
some such presumption of completeness as that postulated by Cameroon.
In all these respects it is the actual terms of the boundary treaty whic
h are important, not some alleged
presumption.
1.64 In pursuit of that opening fallacious argument, Cameroon also sugge
sts that Nigeria's argument that
the defective provisions of the Anglo-German Treaty of March 1913 must b
e severed from the rest of
the Treaty amounts to Nigeria 'picking and choosing' amongst the treaty
provisions by which it now
regards itself as bound: it is said that parties to a treaty "ne peuvent
choisor les dispositions du traité qui
doivent être appliquées et celles qui ne doivent pas l'être, el
les ne saurient faire un tri ("pick and
17
choose")" (RC, paragraph 2.27), that Nigeria cannot "choisir parmi les disposit
ions d'un traité
frontalier celles qui lui conviennent, alors qu'il reconnaît ce trait
é comme un document juridique
18
valide" (RC, paragraph 2.34), and that Nigeria's position is of "chercher à
amputer certaines
dispositions d'un traité en vigeur afin de se libérer des obligati
ons qu'il choisit de ne pas respecter"9
(RC, paragraph 2.35). The impression which Cameroon gives of Nigeria s
eeking, on some arbitrary
basis, to 'pick and choose' amongst applicable treaty provisions is a wi
lful misrepresentation of Nigeria's
position. Nigeria is not exercising some arbitrary 'choice' in this matt
er: rather, Nigeria is, in one
particular respect affecting some 36 kilometres of a 1800 kilometre boun
dary, drawing a very specific
legal consequence from the legal situation which it considers exists. Mo
reover, that specific legal
consequence - namely, the severability of the defective treaty provision
s from the remainder of the treaty
- is one which is accepted in the Vienna Convention on the Law of Treati
es 1969 in the provisions of
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Article 44 which Cameroon regrettably failed to draw to the Court's atte
ntion (below, paragraph 1.71).
1.65 Cameroon claims that this alleged Nigerian 'pick and choose' argume
nt raises a point of principle,
to the effect that treaties must be considered in their entirety (RC, p
aragraph 2.24). In support of such a
principle, Cameroon quotes a passage from Lord McNair, The Law of Treaties (1961), p. 484. That
passage, however, is not in point: it concerns the scope for making rese
rvations, not the consequences
which flow from a fundamental defect in part of a treaty. More to the po
int is Lord McNair's general
conclusion to his Chapter on 'Severence of Treaty Provisions' that
"circumstances frequently arise which make it necessary to regard one or
more of the
provisions of a treaty as forming a self-contained unit and requiring se
parate legal
treatment; for instance, in considering ... the effect of its illegality
upon the remainder of
the treaty, or the question of its elimination for the purpose of curing
the invalidity of
other provisions that might be affected by it" (at p. 484).
1.66 Cameroon then invokes Articles 26 and 44 of the Vienna Convention o
n the Law of Treaties 1969.
However, Cameroon fails to note that by virtue of Article 4 of the Vienn
a Convention, that Convention
does not apply to the March 1913 Anglo-German Treaty. For a rule embodie
d in the Convention to be
applicable to the Anglo-German Treaty of March 1913 it must be shown tha
t that rule reflects also a rule
of customary international law. Nigeria accepts that, for example, Artic
le 26 does represent a rule of
customary international law.
1.67 Article 26 of the Vienna Convention stipulates that
"Every treaty in force is binding upon the parties to it and must be
performed by them in good faith".
In the light of this provision Cameroon concludes that since both partie
s accepted the Treaty of March
1913 as valid and in force it must therefore be performed by the parties
in good faith.
1.68 First Nigeria must observe that no amount of 'acceptance' by Great
Britain can give it a power or
right in international law to dispose by treaty of territory not belongi
ng to Great Britain but instead
belonging to someone else. Were it otherwise, any State
could by 'accepting' a treaty manifestly at odds with the rights of othe
r States confer upon itself the right
to do that which is beyond its lawful powers (cf. the example given in the Counter-Memorial, paragraph
8.41, of a hypothetical treaty between France and Ireland purporting to
dispose of sovereignty over the
Channel Islands and Isle of Man).
1.69 But more than that, Article 26, which states a general principle of
very broad application, cannot be
taken to be asserting that even an invalid treaty, or invalid part of a
treaty, must nevertheless be
performed by the parties in good faith.
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1.70 Cameroon, however, turns to the issue of the possible partial inapp
licability of treaties by invoking
Article 44 of the Vienna Convention, to the effect that defects in treat
ies may only be invoked with
respect to the whole treaty, and not with respect to parts only (RC, pa
ragraph 2.26). This Cameroonian
argument is wrong - and, in being highly selective and omitting relevant
provisions of the Vienna
Convention, is highly inconsiderate of the Court.
1.71 Cameroon quotes Article 44, paragraphs 1 and 2.
(1) Paragraph 1 is irrelevant. It concerns only those cases where the
right of a party to denounce,
withdraw from or suspend the operation of a treaty is provided for in th
e treaty itself or arises under
Article 56 of the Convention. There is no such provision in the Anglo-Ge
rman Treaty of March 1913.
As for the reference to Article 56, it only concerns denunciation of or
withdrawal from treaties
containing no provision regarding termination, denunciation or withdrawa
l: while the March 1913
Treaty is among those which contain no such provision, there is no quest
ion in the present case of
Nigeria seeking to denounce or withdraw from that Treaty.
(2) Paragraph 2 is relevant, but Cameroon's quotation of it is disgrac
efully incomplete. The full text,
with the omitted words emphasised, is -
"2. A ground for invalidating, terminating, withdrawing from or suspendi
ng
the operation of a treaty recognised in the present Convention may be
invoked only with respect to the whole treaty except as provided in the
following paragraphs or in Article 60".
(3) Not only did Cameroon omit to mention that there were express exce
ptions to the rule which it relied
on, but it also omitted to set out the terms of those exceptions themsel
ves. They are listed in paragraph 3
of the Article (the reference to Article 60, which relates to terminati
on or suspension as a consequence
of a breach of treaty, is not relevant in the present context). Paragra
ph 3 reads -
"3. If the ground relates solely to particular clauses, it may be invoke
d only
with respect to those clauses where:
(a) the said clauses are separable from the remainder of the treaty wi
th
regard to their application;
(b) it appears from the treaty or is otherwise established that accept
ance of
those clauses was not an essential basis of the consent of the other par
ty or
parties to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be
unjust."
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(4) As Nigeria has shown in its Counter-Memorial (paragraph 8.56 et seq.), the 'Bakassi provisions' of
the March 1913 Treaty are separable. Their acceptance was not an essenti
al basis of Germany's consent
to be bound by the treaty as a whole - indeed, their acceptance, involvi
ng as it would a cession of
territory to Germany, would have been contrary to Germany's own undertak
ings and understandings (see
NC-M, paragraphs 8.44-8.45). Nor would continued performance of the res
t of the Treaty be in any way
unjust.
(5) For completeness Nigeria notes that paragraph 4 of Article 44 conc
erns only cases involving fraud or
corruption, which are not relevant to the present proceedings, and parag
raph 5 concerns only cases
involving coercion or a conflict with jus cogens, which also are not presently relevant.
1.72 Thus Cameroon's attempted argument against the severability of the
legally defective provisions of
the Anglo-German Treaty of March 1913, based on the terms of the Vienna
Convention, is seen to be
both misleadingly presented and wrong. The conclusions to which this Cam
eroonian line of argument
are said to lead (RC, paragraph 2.27) must therefore be disregarded in
their entirety.
1.73 Cameroon then seeks to support its otherwise unsupported conclusion
s by reference to observations
made in three Judgments of the Court and its predecessor (RC, paragraph
s 2.28-2.31) and in one arbitral
award. None provides the support which Cameroon seeks.
1.74 The dictum in the Permanent Court's Advisory Opinion in the Case concerning the Treaty of
20
Lausanne, Article 3, paragraph 2 (1925) is unhelpful for Cameroon.
(1) It states, first, that "the very nature of a frontier and of any c
onvention designed to establish frontiers
between two countries imports that a frontier must constitute a definite
boundary line throughout its
length". This statement must be understood in the light of the question
being addressed by the Court,
which concerned the meaning of a treaty provision concerning the future delimitation of "the frontier
between Turkey and Iraq". The Court was saying that such a formulation c
alled for establishment of a
definite boundary along the entire length of the boundary in question. T
he Court was not saying that
every existing boundary treaty has to be understood as covering the whol
e boundary: that depends on the
terms of the treaty. Thus even taken at face value, the Anglo-German Tre
aty of March 1913 did not seek
to prescribe the boundary between the British and German protectorate te
rritories "over its entire extent"
- those terms were limited to the stretch between Yola and the sea; and
although the Court stated that it
was inherent in boundary treaties that they must provide "a precise deli
mitation" of the boundary, it
depends on the terms of the treaty whether in any particular case the de
limitation is indeed precise.
(2) The Court then went on to observe, second, that it "is, however, n
atural that any article designed to
fix a frontier should, if possible, be so interpreted, that the result o
f the application of its provisions in
their entirety should be the establishment of a precise, complete and de
finitive frontier". The Court was
here addressing a question of interpretation, rather than a question of
substance; and it was concerned
with the particular situation where a treaty itself specified part of a
boundary but left the rest to be
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determined through some other procedure. The Court was, in effect, sayin
g how that combined approach
should be looked at overall. The desirable end-result, namely a precise,
complete and definitive
boundary, is to be obtained "if possible" through interpretation: in oth
er words, the actual terms of the
treaty govern, and if such an end-result is not possible by way of inter
pretation, so be it.
(3) Moreover, the Court's dictum was in no way addressing the issue of a boundary treaty which was
wholly or in part invalid or ineffective.
(4) The Court's dictum must be seen in the light of the general contex
t of the case. The Court was not
being called on to determine a particular boundary in dispute between th
e States concerned, but to give
an Advisory Opinion as to the nature of the decision on that matter take
n by the Council of the League
of Nations, 21 a task to which it said that it would strictly confine itself, without
prejudicing the merits of
22
the problem.
23
1.75 As for the Court's dictum in Sovereignty Over Certain Frontier Lands, it is again dealing with a
matter of interpretation of the particular Boundary Convention before it
, and not with issues of general
application to all boundary treaties. The Court was concluding that any
interpretation of the Convention
which left part of the boundary in suspense "would be incompatible with
[the parties'] common
intention". This has no bearing upon the interpretation to be given to s
ome other treaty, or upon any
question affecting the treaty's validity or effectiveness.
1.76 Turning to the passages cited from the Court's Judgment in the case
concerning the Territorial
24
Dispute (Libyan Arab Jamahiriya/Chad), they too do not relate to issues arising in the immediate
context of the present proceedings. The Court's observations as to the a
im of Article 3 of the Franco-
Libyan Treaty of 1955 were self-evidently related to the terms of that p
articular treaty, both as regards
the parties' wish to settle all boundary questions and the resulting per
manence of the resulting frontier.
To take those dicta as suggesting a much broader proposition regarding a general presumptio
n that a
boundary treaty is "définitif, complet et précis" 25 (RC, paragraph 2.30) is unwarranted in principle, and
unjustified by the language actually used by the Court. To continue with
a selection of further dicta
about the principle of the stability of boundaries (RC, paragraphs 2.31
, 2.33-2.34) does nothing to help
resolve questions which arise as to the invalidity of a boundary treaty,
whether in part or as a whole. The
general principle that peace, stability and finality are to be encourage
d in boundary settlements does not
decide particular issues which call for determination in relation to spe
cific boundary treaties, as a result
of their particular terms or the particular circumstances of their concl
usion. To uphold, in the name of
stability, an unlawful and invalidly established boundary would be to in
voke stability in order to produce
precisely its opposite.
1.77 The last dictum relied on by Cameroon, from the 1966 Award in the Argentine-Chile Frontier Case
(referred to by Cameroon as the Andean Boundary case), 26 is manifestly irrelevant: it states that "[s]ince
the 1902 Award was a valid Award, it must be assumed to have settled the
entire boundary ... in the area
covered by it". The Tribunal's conclusion takes as its premise that the
1902 Award was a valid Award; in
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the present proceedings it is precisely that equivalent issue which is i
n question as regards the relevant
part of the March 1913 Anglo-German Treaty.
1.78 Moreover Cameroon has, yet again, quoted a passage from a Judgment
while omitting an important
and relevant part of it. The text of the passage cited by Cameroon, with
the omitted words emphasised,
is:
"Since the 1902 Award was a valid Award, it must be assumed to have
settled the entire boundary between Argentina and Chile in the area cove
red
by it ... except to the extent to which it is impossible to apply the Award on
the ground".
This passage, in full, is clearly more limited in its scope than Cameroo
n asserts: it shows that a boundary
is only settled in the area covered by the instrument delimiting it, tha
t that instrument must be valid, and
that there is an exception where delimitation does not make sense on the
ground.
1.79 So far as judicial authority for the severance of treaty provisions
is concerned, more relevant than
27
the cases cited by Cameroon are the decisions of the Court in the South West Africa Cases and the
Fisheries Jurisdiction Case, 28 in both cases the Court accepted that treaty provisions could be severed
-
in the context (in the first case) of provisions of a mandate affected
by the disappearance of the League
of Nations, and (in the second) of provisions of a treaty affected by
changes in the law.
1.80 Cameroon's final argument in this section of its Reply is that since Great Britain and Germany had
the intention, as shown in the preamble to the Treaty of March 1913, to
settle the frontier from Yola to
the sea, this means that the Treaty must be interpreted as implying a pr
ecise, complete and definitive
boundary (RC, paragraphs 2.32-2.33). But the issue is not the interpre
tation of the 1913 Treaty, but its
limited substantive effectiveness. It cannot be sufficient for a party t
o a treaty to "intend" something and
then for that something to be regarded as having been achieved notwithst
anding whatever defects in the
treaty there may be.
1.81 In considering possible grounds for the partial invalidity of the 1
913 Treaty as alleged by Nigeria,
Cameroon observes that "le seul fondement ayant un semblant de vraisembl
ance juridique à cette fin
serait une erreur commise par la Grande-Bretagne, Etat prédécesseu
r du Nigéria, quant à sa capacité
juridique à conclure ce traité frontalier"29 (RC, paragraph 5.163).
1.82 Nigeria notes, first, that Cameroon, in re-stating Nigeria's allege
d argument, appears not to have
noticed that Nigeria talks of the 1913 Treaty being partially "ineffecti
ve", rather than as being partially
"invalid". The two terms are not synonymous.
1.83 Second, Nigeria notes that any search for a legal basis for partial
ineffectiveness having even "a
semblance of legal probability" would not ignore, for example, (i) the
possibility that what is here in
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question is not so much the search for a basis on which to find a treaty
partly invalid or ineffective, but
rather a subject-matter falling beyond what the parties could lawfully c
oncern themselves with, or (ii)
the possibility that the rule prohibiting a State from disposing of what
lawfully belongs to someone else
has the status of a rule of jus cogens, or (iii) the possibility that a State may not effectively conclude a
treaty with another party which is inconsistent with the first State's e
xisting treaty commitments to a
third party. The view that "only" an error by Great Britain as to its le
gal capacity to conclude the Treaty
could afford a possible basis for its partial ineffectiveness is therefo
re incorrect.
1.84 Exclusive concentration by Cameroon on this particular aspect of th
e matter is thus misconceived.
All the same, Nigeria would note that the question does not concern the
invocation by Great Britain of
its own error in concluding the 1913 Treaty, but rather the invocation b
y Nigeria, after becoming
independent, of error on the part of Great Britain. Great Britain had no
interest in invoking that error on
its own part, and indeed the March 1913 Treaty was, possibly already by
1914 but in any event after
1919 at the latest, abrogated (see below, paragraph 1.83 et seq.). It was Nigeria, under British
'protection', which was injured by its protector's error; but Nigeria di
d not contribute to the error, and did
not become independent until 1960.
1.85 Cameroon makes much of Nigeria's alleged failure to raise the quest
ion of the effectiveness of the
1913 Treaty until the 1990s (RC, paragraph 5.167). But the fact is tha
t Nigeria's continuing authority
over the Bakassi Peninsula after attaining independence in 1960 was suff
iciently effective and peaceful
to make it unnecessary for Nigeria to consider deficiencies in the 1913
Treaty. It was only as Cameroon
gradually sought to expand its presence into Nigerian territory in the B
akassi region that the legal
situation needed to be given closer attention and the doubts about the '
Bakassi provisions' of the 1913
Treaty needed to be addressed, and were given public expression.
1.86 Among the relevant considerations, of course, was the purported exe
rcise by Great Britain of a
power which it did not have, namely to cede to Germany territory which b
elonged to the Kings and
Chiefs of Old Calabar. But that was not the only consideration requiring
attention. There was, for
example also the failure of Germany to comply with its own legal require
ments for the approval of
treaties providing for the acquisition or cession of colonial territory.
1.87 Section 1, paragraph 2, of the Schutzgebietsgesetz ("Protected Territory Act") (at Annex NR 5)
required parliamentary approval (in the form of a statute) for any acq
uisition or cession of colonial
territory, unless what was involved was a mere boundary rectification. T
his requirement was added to
the Schutzgebietsgesetz on 16 July 1912. The drafting history of this addition shows that it wa
s intended
to limit the external treaty-making power of the German Government.
1.88 Although officials in German Government Departments took the view t
hat the provisions of the
Anglo-German Treaty of March 1913 involved only boundary rectifications
(NC-M, paragraph 8.45),
there is room for considerable doubt about that conclusion so far as con
cerns the provisions affecting
Bakassi.
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(1) 'Rectification' means a minor alteration of a boundary of only loc
al importance; an area the size of
Bakassi cannot be seen in that light;
(2) rectification in the African context was typically a process chara
cterised by the replacement of lines
drawn in diplomatic negotiations (often without knowledge of the factua
l situation on the ground) by
lines following a more topographically appropriate course: with Bakassi,
however, what was involved
was the replacement of one well-understood natural line by another, diff
erent, but equally well-
understood, natural line - in both cases, the line of a river;
(3) before the March 1913 Anglo-German Treaty, the only two colonial b
oundary treaties concluded by
Germany after the 1912 amendment to the Schutzgebietsgesetz and before the end of the German
30 31
colonial era, namely those with France (1912) and Portugal (1913), 28 concerned only minor
deviations from an already agreed boundary; the transfer of Bakassi was,
by comparison with that
practice, clearly much more than such a rectification;
(4) the March 1913 Treaty shows - by its provision that if the natural
boundary line in the Akpa Yafe
were to change to the Rio del Rey, Bakassi would still remain German (A
rticle 20) - that the purpose of
this part of the Treaty was regarded not as a boundary rectification but
as the acquisition of a specific
area, i.e. Bakassi;
1.89 Consequently, as a treaty incorporating provisions involving the ac
quisition of colonial territory by
Germany, German law at the time required the March 1913 Treaty to be app
roved by the German
Parliament, at least so far as its Bakassi provisions were concerned. No
such approval was given. This
view of the German constitutional position is supported by contemporary
writers (Annex NR 6).
(vii) Treaty of Versailles
1.90 Nigeria, in its Counter-Memorial, stated that in accordance with Article 289 of the Treaty of
Versailles the Anglo-German Treaty of 11 March 1913 was abrogated, and t
hat Cameroon did not
therefore succeed to the Treaty itself (NC-M, paragraph 8.53).
1.91 Cameroon contends that this argument is unfounded, since (a) the
1913 Treaty does not fall within
the scope of Article 289 of the Treaty of Versailles, (b) if the 1913
Treaty were to be regarded as falling
within the scope of that Article the result would be to deny the legal e
ffects deriving from the loss by
Germany of its colonies under the Treaty of Versailles, and (c) Nigeri
a's argument is inconsistent with
the rules on the succession of States to legal instruments with a territ
orial scope, in particular those
fixing boundaries (RC, paragraph 5.127). These Cameroon arguments are
themselves without legal
foundation.
(viii) Article 289 of the Treaty of Versailles
1.92 Article 289 of the Treaty of Versailles provides in effect that bil
ateral treaties have to be the subject
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of a notification procedure if they are to be revived, and that bilatera
l treaties which have not been the
subject of such a notification "are and shall remain abrogated". Cameroo
n notes (and Nigeria agrees)
that Article 289 of the Treaty of Versailles is included within Part X o
f that Treaty, which contains the
'economic clauses' of the Treaty. Cameroon argues that the Anglo-German
Treaty of 11 March 1913 is
not a treaty of an economic character, and that therefore it does not co
me within the scope of Article
289. Nigeria disagrees with this conclusion.
1.93 The provisions of Article 289 reflected much careful consideration
on the part of the allied States.
In the United Kingdom a Committee was established to examine what should
be the fate of bilateral and
multilateral treaties with Germany. The Committee submitted a First Repo
rt on 7 August 1918, 32 and a
Final Report on 31 August 1918. 33
1.94 In its First Report the Committee 34 dealt with certain matters of general approach to the issue
before it. In particular, the Committee considered the question whether
the outbreak of war
automatically put an end to all bilateral treaties with an enemy State (
which the Committee referred to as
Class I treaties). The Committee was of the opinion that the "view most
generally entertained in this
country hitherto has been that the effect of war was to put an end to al
l such treaties" (paragraph 9).
Although noting that in more modern thinking there were some exceptions
(such as treaties determining
what should happen in time of war - and it may be noted that the Committ
ee did not mention boundary
treaties as a possible exception), the Committee concluded that "[p]rac
tice, however, is overwhelmingly
in favour of the older view". Consequently,
"After carefully studying the authorities and precedents on the subject,
the Committee are
satisfied that in the case of Class I treaties it will be convenient to
adopt this rule in the
general settlement at the end of the war, and to provide that only such
treaties as may be
specifically revived shall continue in force, all others being regarded
as at an
end" (paragraph 9).
This was, of course, the principle eventually enshrined in Article 289 o
f the Treaty of Versailles. With
regard to boundary treaties, the Committee said:
"In order to avoid any questions arising as to the continued existence o
f
boundaries as settled under previous treaties which are not revived, we
recommend that a general saving should be inserted in the Treaty of Peac
e
that, in cases where the boundaries so settled are not altered by the Tr
eaty of
Peace, the non-renewal of any treaty should not affect any such
boundary" (paragraph 7).
Thus by implication the Committee was clearly of the view that although
settled boundaries survived,
boundary treaties themselves did come to an end as a result of war betwe
en the parties. The Committee's
view thus demonstrates the falsity of Cameroon's assertion that the non-
abrogation of boundary treaties
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was "ce qui était conforme à l'opinion juridique unanime de l'é
poque" (RC, paragraph 5.139).
1.95 In its Final Report the Committee applied the general principles wh
ich it had identified in its First
Report to the individual treaties falling within the scope of its remit.
It put the various treaties into
groups, and each treaty was given a number. Group 25 was headed "Africa"
. The Anglo-German Treaty
of 11 March 1913 was Treaty No. 79. The Committee was
"aware that Germany may not retain her colonies, and, as the great major
ity
of the treaties in this group are Class I treaties, the disappearance of
the
colonies will naturally entail the disappearance of the treaties. The
Committee have, however, thought it desirable to consider each treaty on
its
merits and to report accordingly." (paragraph 45; emphasis added)
The Committee continued by observing that if the recommendation made in
paragraph 7 of its First
Report (above) were approved,
"it would be unnecessary to revive in the Treaty of Peace a great many o
f
these instruments. This applies to .....79, which are mainly boundary
treaties" (paragraph 46).
The Committee noted that if any of those treaties were to stand, special
provision should be made to
protect provisions in those treaties regarding the upkeep of boundary po
sts and provisions in them for
joint use of boundary rivers for fishing and navigation. The Committee c
ontinued:
"The only provisions in the treaties mentioned above which would not be
covered by the three general saving clauses suggested are ... parts of 79,
viz., sub-section 23, dealing with mutual rights of navigation between
Akwayafe and the sea, and another part wholly in favour of Germany
relating to the navigation on the Cross River. None of these provisions
should be revived." (paragraph 46)
In the Appendix to the Committee's Report the entry for Treaty No. 79 co
ncludes with the
recommendation "Not to be revived", and as the reason "Boundary".
1.96 It is thus apparent that the British Government, in accordance with their understanding of the law
as it stood at that time, intended to ensure that the Anglo-German Treaty of 11 March 1913 shoul
d be
treated in the Treaty of Versailles as having been terminated. The terms
of Article 289 are entirely
consistent with that clear intent. Far from Cameroon being correct in as
serting that "il n'a jamais été
sérieusement avancé que le Traité anglo-allemand de 1913 ou que
tout autre traité ayant un contenu
36
similaire entraient dans le champ d'application de l'article 289 du Trai
té de Versailles" (RC, paragraph
5.130), it was expressly the view and intention of the British Governme
nt that that should indeed be the
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result to be achieved. Nor was it the view of the British Government alo
ne: Sir Cecil Hurst, who had
been the Chairman of the Committee which had considered what should be t
he fate of Anglo-German
treaties, wrote,
"speaking from memory, that committee recommended the adoption of the
policy which was acted on by His Majesty's Government in the peace
37
negotiations at Paris in 1919, and was accepted by all the other Allies".
1.97 Although Article 289 is included within Part X of the Treaty of Ver
sailles, this does not mean that
the Anglo-German Treaty of 11 March 1913 was excluded from its provision
s:
(1) In the first place, it is not uncommon to regard treaties of almos
t any character as being essentially
economic in their import, in so far as they can, as a general rule, be s
een to facilitate relations, and
particularly economic relations, between the parties.
(2) Second, if 'economic' treaties are regarded as a strictly limited
group, then there would be many
treaties which would fall outside the scope of Article 289 and the fate
of which would not elsewhere be
determined in the Treaty of Versailles - an omission so surprising as to
imply that the placement of
Article 289 in Part X of the Treaty was not intended to have any such ef
fect.
(3) Third, not even Cameroon, however, suggests that the concept of 'e
conomic' treaties is to be
narrowly construed: "Il ne fait aucun doute que la notion de traité "
économique" ou "commercial" a été
entendue dans un sens large", 38 and "La disposition était même destinée à couvrir des trait
és de caractère
économique au sens le plus large du terme, tels que ceux traitant de
procédure civile ou de la protection
des mineurs" 39(RC, paragraph 5.142); further, "Il est ...indéniable que le champ
d'application de cette
40
disposition se limitait aux seuls traités à caractère économ
ique, au sens large du terme" (RC, paragraph
5.144). By acknowledging - correctly - that the notion of an economic t
reaty is to be understood in very
broad terms, Cameroon's assertion that the 1913 Anglo-German Treaty was
outside the scope of Article
289 loses all cogency, since -
(4) fourth, given Cameroon's acceptance of such a very broad meaning o
f 'economic' or 'commercial'
treaties, it is clear that the Anglo-German Treaty of 11 March 1913 cont
ained provisions of economic
significance which brought it within such a broadly defined concept. Tha
t it was not solely a boundary
treaty is apparent from its preamble which states that the parties were
"desirous of arriving at an Agreement respecting (1) the settlement of
the frontier between
Nigeria and the Cameroons, from Yola to the sea, and (2) the regulatio
n of navigation on
the Cross River."
The British Commission which examined Anglo-German treaties in 1918 note
d this mention of
navigation on the Cross River (set out in a separate part of the Treaty
) and also the provision in Article
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XXIII for navigation rights on the Akwayafe River, and thought that neit
her should be revived (above,
paragraph 1.95): this is one of the topics which Cameroon expressly acc
epts are included within its
broad category of economic or commercial treaties (which notion, it ack
nowledges, included, "entre
autres, des traités portant sur des questions telles que le traitemen
t des ...communications (par ...voies
navigables...)"41 (RC, paragraph 5.142). The Treaty also included provision for native
fishing rights,
which was clearly of economic significance (Articles XXVI and XXIX).
(5) As noted by Cameroon (RC, paragraph 5.147), Article 282, dealing
with multilateral treaties, in
terms deals only with certain "conventions and agreements of an economic
or technical character". If
Part X was, by definition, limited to economic treaties, there was no ne
ed for this express stipulation in
Article 282. But having included that limitation expressly in that Artic
le, it is all the more significant
that Article 289 not only contained no such limitation, but in terms ref
erred to "the" (i.e. all) bilateral
treaties which Allied powers wished to revive, "all others" being and re
maining abrogated, and ending
with the express statement that "The above regulations apply to all bilateral treaties or conventions ...
[with] Germany ..." (emphasis added). Cameroon's attempt (RC, paragra
ph 5.149) to explain away the
difference in wording between Articles 282 and 289 is singularly unconvi
ncing, mostly based on
hypothesis and supposition - "on peut en conclure que les rédacteurs
ont estimé qu'il était inutile", "il est
possible que", "le résultat d'une rédaction hâtive", "il semble
que la raison principale qui a guidé cette
42
formulation", "Si les rédacteurs du Traité de paix étaient conf
iants". Cameroon's conclusion (RC,
paragraph 5.150) that "La terminologie utilisée à l'article 289,
paragraphe 7 ........ s'explique donc
43
aisément" is correct as an abstract proposition, but wrong as applied to the situ
ation with which
Cameroon is trying to deal. In drawing the distinction between Article 2
82, which specified the
multilateral treaties with which it was dealing, and Article 289, which
"ne contenait aucune disposition
44
sur la remise en vigueur ou l'abrogation de traités bilatéraux à
caractère économique" (RC, paragraph
5.149), Cameroon wilfully misrepresents the provisions of the Treaty of
Versailles. Article 282 dealt
with specific multilateral treaties; by contrast Article 289 did not spe
cify which bilateral treaties it was
dealing with because it was, according to its terms, dealing with "all" of them: since it was dealing with
all such treaties, there was no need to specify each individually. This, not Cameroon's convoluted and
exaggerated argument, is the simple, clear and "easily explained" reason
for the difference in language
of the two provisions.
(6) The fact that the travaux préparatoires of the Treaty of Versailles show, in the passages referred to
by Cameroon (RC, paragraphs 5.134-5.136, 5.140-5.141), that manifestly
commercial treaties were
included within the scope of Part X of the Treaty, does not show that th
at Part, let alone Article 289
which is within that Part but which contains contrary language, is limit
ed to such manifestly commercial
treaties. Cameroon's acknowledgement that the notion of 'economic and co
mmercial treaties' must be
broadly interpreted (above, sub-paragraph (3)) demonstrates that any
such argument is untenable, and
renders the passages quoted by Cameroon devoid of purpose in the present
context.
(7) Cameroon draws attention (RC, paragraphs 5.130-5.131) to the rec
ent proceedings in the case of
Kasikili/Sedudu Island (Botswana/Namibia) in which no question was raised as to the legal validity of
an Anglo-German Treaty of 1 July 1890 (sometimes referred to as the Tre
aty of Berlin: Annex NC-M
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26). In Article I of the Special Agreement the parties asked the Court
to determine the relevant part of
the Botswana-Namibia boundary "on the basis of the Anglo-German Treaty o
f 1 July 1890". For the
Court, therefore, the relevance of that Treaty was a 'given' and questio
ns as to its continuing validity
would not have been appropriate. As to the parties' reasons for invoking
the Treaty in their Special
Agreement, Nigeria (and presumably Cameroon) is in no position to comm
ent upon the motivation of
the parties in dealing with the Treaty in the way they did. Nigeria woul
d, however, observe that if the
treaty was the root of title to territory on either side of the boundary
and if the parties accepted that its
terms correctly delimited the boundary, then irrespective of its continu
ing validity there was nothing to
stop them referring to it in their Special Agreement as containing the g
overning language for the case (in
addition, of course, to their specific further mention of the rules and
principles of international law).
(8) As to the quotations from the works of Lord McNair upon which Came
roon relies, it is to be noted
that in his book on The Law of Treaties he was, in general, stating the law as it stood, in his view, in
1960, and not as it was at the time of the outbreak of the First World W
ar in 1914. Moreover, he did not
always make the distinction, which is nowadays clear and accepted (see
below, paragraphs 1.102-1.103),
between the treaty giving rise to a permanent state of affairs (such as a boundary treaty
) and the rights
and obligations to which that treaty had given rise. 45
(ix) Succession to boundary treaties
1.98 Cameroon argues that Nigeria's view that, by virtue of Article 289
of the Treaty of Versailles, the
Anglo-German Treaty of 11 March 1913 was abrogated is inconsistent with
the rules of international
law relating to boundary treaties. Nigeria does not accept that there is
any such inconsistency.
1.99 Much of Cameroon's argument as to the effect of Article 289 of the
Treaty of Versailles appears to
be based on the misapprehension that Nigeria is asserting that by virtue
of the Treaty of Versailles the
boundary established by the Anglo-German Treaty of 11 March 1913 was abr
ogated. Nigeria has
advanced no such argument. Nigeria has simply drawn attention to the fac
t that, by virtue of Article 289,
the Treaty was abrogated and that therefore Cameroon could not have succeeded to t
he Treaty itself.
Cameroon has failed to take into account the distinction to be drawn bet
ween succession to the treaty
and succession to the boundary established by the treaty.
1.100 If Cameroon were correctly to understand Nigeria's argument in thi
s respect, it will be seen that
much of the effort devoted by Cameroon to this issue is irrelevant. In p
articular, Cameroon's assertions
that Nigeria's argument involves inconsistency with the provisions of th
e treaty concerning Germany's
renunciation of its overseas territories and leads to instability (RC,
paragraphs 5.152-5.156), are
unfounded: it is Nigeria's contention that even though a boundary treaty is abrogated, the boundary itself
(if lawfully established) continues to have legal force.
1.101 Cameroon's misunderstanding on this point is particularly evident
in relation to its observations on
Article 125 of the Treaty of Versailles, relating to the Franco-German a
greements of 1911 and 1912
(RC, paragraphs 5.158, 5.160). As Cameroon notes (RC, paragraph 5.160
) these agreements "included"
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a new delimitation of the border between French Equatorial Guinea and Ca
meroon. But they did more
than that: they resulted in the cession to Germany of very large areas o
f land to the east and south of
Germany's Kamerun protectorate. By Article 125 France appears to have se
cured the return to itself of
those territories (and thus their exclusion from the area of Kamerun wh
ich was to become the French
mandated territory of Cameroon). Moreover, the two agreements also cont
ained non-territorial
provisions. Thus it is apparent from the terms of Article 125 that those
agreements gave rise to deposits,
credits and advances in favour of Germany, and Article 125 provided that
such payments made to
Germany under the 1911 and 1912 agreements should be paid to France. It
was therefore not a question
of providing simply for the abrogation or revival of those 1911 and 1912
agreements, and it was
therefore insufficient to leave them to be dealt with solely under Artic
le 289: rather they had to be dealt
with specifically and in their particular circumstances in some special
provision, i.e. in Article 125. Far
from demonstrating, as Cameroon suggests, that the provisions of Article
125 show the incorrectness of
Nigeria's argument about the scope and effect of Article 289, in fact th
e provisions of Article 125 are
entirely consistent with Nigeria's view, for without some provision like
Article 125 the intentions of
France would not have been realised: it was one of the "special subjects
" dealt with as a "particular"
consequence of Germany's general renunciation of its overseas rights and
interests under Article 118
(see paragraph 3 of that Article: "In particular Germany declares her a
cceptance of the following
Articles relating to certain special subjects").
1.102 The general point about the termination of boundary treaties but n
ot of the boundaries created by
them was well made by the British Committee which was appointed to consi
der what should happen as
regards Anglo-German treaties in the peace treaty to be concluded at the
end of the First World War
(above, paragraph 1.93 et seq.). As already noted, in paragraph 7 of its First Report, the Committee
accepted that non-renewal of a boundary treaty does not affect the conti
nuation of the boundary as such.
The same view was adopted by the International Law Commission when prepa
ring what was to become
Article 11 of the Vienna Convention on Succession of States in respect o
f Treaties 1978. That Article
provides:
"A succession of States does not as such affect:
(a) a boundary established by a treaty; or
(b) obligations and rights established by a treaty and relating to the
regime
of a boundary."
1.103 In its Commentary on the draft version of this Article the Interna
tional Law Commission made
clear that its proposed language (which in this respect was the same as
that eventually adopted in the
46
Vienna Convention) distinguished between the treaty and the boundary es
tablished by the treaty.
Nigeria accepts this distinction, and said so in its Counter-Memorial, where it observed, immediately
after its assertion that Article 289 of the Treaty of Versailles confirm
ed the abrogation of the 1913
Anglo-German Treaty, that
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"in accordance with well-established rules of international law, in so f
ar as a boundary
was lawfully established by [the 1913] Treaty, the boundary survives unt
il lawfully
changed by some subsequent act binding upon the States concerned." (NC-
M paragraph
8.54).
1.104 Of course, the survival of the boundary is conditional upon the bo
undary having been lawfully
established in the first place: the rule of survival does not serve to l
egitimate that which was previously
47
illegitimate. This view was clearly expressed by the International Law C
ommission and was also
stated by Nigeria in its Counter-Memorial in the following terms:
"For the reasons already given, the boundary purportedly established by
that
Treaty in relation to Bakassi was not lawfully established, and there wa
s
therefore no consequent lawful boundary which could survive the lapse of
the Treaty purportedly establishing it." (NC-M paragraph 8.54)
____________
1 But Cameroon has incorrectly given the references to this work as cite
d in n. 40: the references cited in nn. 40
and 41 should be transposed.
2 At pp. 70, 70-71, 80-81.
3 See NC-M, paras. 6.39 and 6.61-6.62, citing Oppenheim's International Law, Vol. 1, 9th ed., 1992, pp. 267,
268, 269, and the Tunis and Morocco Nationality Decrees case (PCIJ, Ser. B, No. 4, at p. 27). As long ago as
1905, when the 1 stedition of Oppenheim was published, the position was expressed in essentially the same terms
as it is in the most recent edition. Thus: "Protectorate is ... a concep
tion which ... lacks exact juristic precision, as
its real meaning depends very much upon the special case... The position
of a State under protectorate within the
Family of Nations cannot be defined by a general rule, since it is the t
reaty of protectorate which indirectly
specializes it by enumerating the reciprocal rights and duties of the pr
otecting and the protected State. Each case
must therefore be treated according to its own merits". (Oppenheim Vol. I 1 sted., 1905, p. 138).
4 NC-M, paras. 6.37-6.65.
5 No basis for that concept in treaty law has been advanced by Cameroon,
nor does Nigeria know of any such
treaty basis for the concept.
6 Above, para. 1.30(1).
7 Below, para. 1.46(2).
8 Below, para. 1.46(1).
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9 It is to be noted that this English law rule of 'act of State' is diff
erent from the rule commonly referred to by that
name, particularly in the context of decisions by US Courts.
10 Vattel, The Law of Nations, Book I, Chapter XVI, p. 95, New York 1863.
11 British and Foreign State Papers, Vol. 79, 1887-1888, p. 240; Parry,
Consolidated Treaty Series, Vol. 171,
1888-1889, p. 207 (Annex NR 3).
12 See NC-M, paras. 6.63, 6.65. For comparison with the terms of the Tre
aty with Brunei, it may be recalled that
the equivalent provision of the 1884 Treaty with the Kings and Chiefs of
Old Calabar provides: "The Kings and
Chiefs of Old Calabar agree and promise to refrain from entering into an
y correspondence, Agreement, or Treaty
with any foreign nation or Power, except with the knowledge and sanction
of Her Britannic Majesty's
Government".
13 Sir Philip Currie (Foreign Office) to the Law Officers, 12 August 1
890, and Attorney-General (Sir Richard
Webster) to Sir Philip Currie, 13 August 1890 Annex NR 4.
14 Award of 9 October 1998, Phase One: Territorial Sovereignty and Scope
of the Dispute, I.L.R. Vol. 114, p. 1.
15 Nigeria, of course, does not admit that the Treaty was legally bindin
g in respect of its 'Bakassi provisions'.
16 "International law presumes that the treaties delimiting a boundary e
stablish a permanent, defined and
complete boundary, in the absence of clear proof to the contrary".
17 "may not choose the provisions of the treaty which do have to be appl
ied and those which do not, they cannot
'pick and choose'".
18 "choose amongst the provisions of a boundary treaty those which suit
it, whilst at the same time it recognises
this treaty as a valid legal document".
19 "seeking to amputate certain provisions from a treaty in force in ord
er to free itself from obligations which it
chooses not to respect".
20 PCIJ, Ser. B, No. 12, at p. 20.
21 ibid., at pp. 6-7.
22 ibid., at p. 18.
23 I.C.J. Reports 1959, at pp. 221-222.
24 I.C.J. Reports 1994, at p. 24.
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25 "definitive, complete and precise".
26 I.L.R., Vol. 38, p. 81.
27 I.C.J. Reports 1962, p. 319.
28 I.C.J. Reports 1973, p. 3.
29 "the only basis having a semblance of legal probability for this purp
ose would be an error by Great Britain,
Nigeria's predecessor State, in respect of its legal capacity to conclud
e this boundary treaty".
30 Agreement Regarding the Delimitation between Togo and the French Poss
essions in Dahomey and in the
Sudan, 12 September 1912, and the Additional Provisions of 28 September
1912.
31 Agreement Concerning the Affiliation of the Islands Situated on the R
owurna River (East Africa), 20 March
1913.
32 Annex NR 7.
33 Annex NR 8.
34 The Committee's membership included Mr C J B (later Sir Cecil) Hurs
t, legal adviser at the Foreign Office
(and later to be a Judge, and President, of the PCIJ). At the conclusi
on of its work Mr Hurst was the Chairman of
the Committee.
35 "in line with the unanimous legal opinion of the time".
36 "it has never been seriously suggested that the 1913 Anglo-German Tre
aty or any other treaty with a similar
content should fall within the scope of Article 289 of the Treaty of Ver
sailles".
37 Annex NR 9.
38 "There is no doubt that the notion of an "economic" or "commercial" t
reaty was understood in broad terms".
39 "The provision was even intended to cover economic treaties in the br
oadest sense of the term, such as those
dealing with civil procedure and the protection of minors".
40 "It is ... undeniable that the scope of this provision was limited to
treaties of an economic nature in the broad
sense of the term".
41 "amongst others, treaties relating to questions such as the treatment
of ... communications (by ... navigable
waterway...)".
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42 "one can conclude that the authors considered it unnecessary", "it is
possible that", "the result of hasty
drafting", "it appears that the principal reason which guided this wordi
ng", "If the authors of the Peace Treaty
were confident".
43 "The terminology used in Article 289, paragraph 7, is therefore easil
y explained".
44 "did not contain any provisions on the revival or abrogation of bilat
eral treaties of an economic nature".
45 The first passage quoted in RC, para. 5.137, illustrates this confusi
on, in stating that "rights of a permanent
character... such as .. a boundary treaty ... are not affected by the outbreak of war between the contracting par
ties".
46 Yearbook of the Int. Law Commission, 26 Session, 1974, Vol. II Pt. 1, Commentary on Draft Article 11,
p.196 et seq., esp. paras. 18-20 at pp. 201-202.
47 See below, para. 15.47(9).
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PART I
BAKASSI
CHAPTER 2
SUBSEQUENT ACTS OF ADMINISTRATION
IN BAKASSI 1913-1960
A. Subsequent acts of administration in Bakassi
(i) Non-implementation of the 1913 Treaty by Germany before 1919
2.1 Germany did not submit the March 1913 Treaty to its Parliament for a
pproval as required by
German law (above paragraphs 1.87-1.89). There is no evidence that Ger
many took steps to implement
those provisions of the Treaty which called for further action (Article
24 et seq.). Nigeria has already
1
shown that "The weight of the evidence strongly suggests that there was no Ge
rman occupation or
administration of Bakassi, and no significant pattern of German activiti
es there, in the period between
March 1913 and May 1916" 2 (when the occupation of German Kamerun by British, French and Belgian
forces was completed). By virtue of that war-time occupation, there was
no opportunity for German
administration of Bakassi between 1916 and 1919, when the Treaty of Vers
ailles was concluded: it
entered into force on 10 January 1920.
2.2 There is no evidence of any expressions of concern by the Kings and
Chiefs of Old Calabar that,
after March 1913, part of their territories were now supposed to be unde
r the administration of Germany;
German activities in the area were thus either non-existent or, at most,
so minimal as not to be
noticeable. There is certainly no evidence that the Kings and Chiefs gav
e their approval to any transfer
of their territory to Germany post hoc.
(ii) British, Nigerian and other Allied administrative activities, 191
6-1920
2.3 There is no evidence of any administration of the Bakassi area by Br
itish, French or Belgian
administrations acting in right of Germany, as the occupying authorities in the period 1916-1920.
2.4 However, during that same period (i.e. before the Mandate entered into force, so that British and
Nigerian activities could not have been based on authority derived from
the Mandate but flowed from
original British/Nigerian authority over Bakassi as part of the Protecto
rate), the pre-War administrative,
legal and other ties between Bakassi and the rest of Nigeria continued u
nbroken and uninterrupted (as
indeed they did right through to Nigeria's attainment of Independence in
1960, and thereafter).
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2.5 Moreover in April 1919 the British District Officer at Ossidinge, in
Southern Cameroons, in official
correspondence with the British Resident at Buea, stated that the bounda
ry with the Nigerian
3
protectorate fell on the right bank of the Rio del Rey.
(iii) The significance of acts of administration and other acts of sov
ereignty (effectivités)
2.6 In the years after the War the practical administration of, and othe
r manifestations of sovereignty
over, the Bakassi Peninsula become very relevant to, and perhaps decisiv
e for, the question of
sovereignty over that area. The legal significance of these administrati
ve activities (effectivités) needs to
be seen in the right perspective. In this respect it is necessary to cor
rect Cameroon's explanation of the
4
role of effectivités.
2.7 Cameroon asserts that:
"Le rôle des effectivités est évident dans une situation où
le titre juridique est établi. C'est
un rôle confirmatif et non pas contradictoire.... Les effectivités
ne peuvent prévaloir sur un
5
titre conventionnel établi." (RC, paragraph 2.63)
Again:
"Ainsi, les 'effectivitiés' peuvent jouer un rôle dans la déter
mination de la frontière établie
à un moment donné, soit du fait du manque de clarté du titre ju
ridique, soit pour la
confirmation de ce titre. Elles ne peuvent toutefois prévaloir sur un
titre juridique
conventionnel." (RC, paragraph 2.64)
2.8 Cameroon's error lies in applying that kind of analysis to the prese
nt situation, on the assumption
that the Anglo-Treaty of March 1913 is wholly valid and effective. But as Nigeria has demonstrated, 7
that assumption is incorrect: that Treaty is ineffective in relation to
those parts of it which purported to
transfer title to Bakassi to Germany, and there is thus no treaty-based
boundary between Nigeria and
Cameroon in the Bakassi area.
2.9 Seen in that light, acts of effective administration in relation to
Bakassi are of undoubted importance.
They may be significant for at least:
(1) the determination of the established boundary at a given time, whe
re there is lack of clarity in
the legal title, and a fortiori where a treaty purporting to establish a boundary is ineffective for
8
that purpose;
(2) the determination of a former administrative boundary where it was
ill-defined or its position
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disputed; and
(3) the historical consolidation of title (as to which see below, Cha
pter 3).
2.10 In all three contexts the post-independence effectivités may be relevant to shed light on the pre-
independence situation. As the Chamber said in the case concerning the Land, Island and Maritime
Frontier Dispute,
"Where the relevant administrative boundary was ill-defined or its posit
ion disputed, in
the view of the Chamber the behaviour of the two newly independent State
s in the years
following independence may well serve as a guide to where the boundary w
as, either in
10
their shared view, or in the view acted on by one and acquiesced in by t
he other"
2.11 Against that general background, Nigeria will now consider the vari
ous acts of effective
administration in the Bakassi region. The administration of the Bakassi
Peninsula can be most
conveniently considered in two periods, the first from 1920 up to the at
tainment of Independence in
1960 (the next following paragraphs), and the second from 1960 up to t
he present time (Chapter 3
below).
(iv) Absence of French or Cameroonian activities 1920-1960
2.12 There is no evidence of any French (or local Cameroonian) acts of
administration in the short
period from 1920 to 1922 when the Mandate entered into force.
2.13 Given the historical and legal developments, there was no room for
either French (or local
Cameroonian) acts of administration in Bakassi from 1922 onwards. Camer
oon advances no evidence of
any such acts.
(v) British and Nigerian administrative activities, 1920-1960
2.14 With the entry into force of the Treaty of Versailles on 10 January
1920, Germany renounced all its
rights and titles over its overseas possessions.1 Until the entry into force of the Mandate in 1922 the
practical administrative arrangements in the area continued as they were
previously.
2.15 From 1922 until Independence in 1960, the situation as regards Baka
ssi was complicated. First, the
former German possession of Kamerun (now called Cameroon, or Cameroun)
became Mandated
Territories in 1922, and thereafter Trust Territories (from 1946, when
Trusteeship Agreements entered
into force), administered as to part by the United Kingdom and as to pa
rt by France. 12 The Mandate
granted to the United Kingdom in 1922 affected the western strip of the
former German Kamerun.
Subsequently this same strip became a British Trust Territory. During th
e period of both the Mandate
and Trusteeship there was, lying alongside and to the west of the southe
rn part of that strip, the
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Protectorate established by the Agreement of 1884; and further to the we
st still was the territory of the
British Colony of Nigeria in and around Lagos.
2.16 Moreover, the Mandated Territory, and later the Trust Territory, co
mprised land which it was
impracticable to administer as a separate unit, distinct from Nigeria. C
ameroon acknowledges this, in
13
quoting from a British Colonial Office Report for 1949:
"The terrain is generally mountainous and difficult and contains a wide
variety of ethnic
and linguistic groups among its estimated population of 1,030,000; for t
hese reasons, the
administration of the Trust Territory as a separate unit, distinct from
Nigeria, is
impracticable."
2.17 In these circumstances it was inevitable that the Mandated Territor
y, and later the Trust Territory,
should be administered as part of a generally British/Nigerian region. S
o far as concerned the Bakassi
area, and given in particular the original (and continuing) links betw
een Bakassi and the Kings and
Chiefs of Old Calabar,
"the distinction between mandated and protectorate territory, while ackn
owledged in
principle, had virtually no practical significance for the people of Bak
assi and Calabar.
There was no practical day-to-day need for the British or local administ
ration to
distinguish between what might have been former German territory and wha
t was British
protected Nigerian territory. ....
There was in any event no question of non-British rule, and no question
of putting an end
to the traditional authority of the Kings and Chiefs of Old Calabar... E
ffective authority
continued to be exercised by the traditional source of power and authori
ty in the
Peninsula, namely by the Kings and Chiefs of Old Calabar." (NC-M, parag
raphs 9.11-
9.12)
2.18 In its Counter-Memorial Nigeria set out a series of events and activities which demonstrated th
e
nature of British and Nigerian activities in relation to Bakassi in the
period between 1919 and 1960.
2.19 In the present context several of those examples are particularly s
triking, in that they show that
matters arising in Bakassi were handled as part of the legal structure o
f the Nigeria Protectorate. Thus,
the customary law courts in the region were maintained and regulated by
modern legislation in Nigeria.
As part of that control, in June 1941 the Effiat-Mbo Native Court issued
a warrant for the Effiat-Mbo
(Oron Clan) Court, sitting in Jamestown, which included within its jur
isdiction the Bakassi village of
Abana (Annex NC-M 141). Additionally it is to be noted that the Custom
ary Court of Effiat/Mbo, also
sitting in Jamestown, heard cases involving parties from Bakassi village
s in the years leading up to
Independence. Cases involving parties from Ine Odiong and Ine Atayo were
heard in March 1956: see
Annex NR 10. In June 1958 the same Court was hearing a case between Chie
f Etim Oron Ntuen of
Abana and the Ekpe Society of Abana Village: see the Court records in An
nex NR 11.
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2.20 A population census of Nigeria was held in 1953. It included as par
t of Akpabuyo Rural District
Council, as the area was then known, within Calabar Province, the follow
ing villages located on the
Bakassi Peninsula:
Ine Akpa Ikang
Ine Ekoi
Ine Nkani Ekure
Ine Utan
Ine Utan Asukwo. (Annex NC-M 142)
2.21 In the 1959 Federal election, Mr Okon John Eminue, a Methodist Scho
ol head teacher, was elected
member representing Eket East Constituency, which included some of the B
akassi villages.
2.22 In the period before the 1960s the people of Bakassi, if they were
able to afford the cost of
transport, tended to send their children to Duke Town Primary School in
Calabar, which had first been
established in 1846.
2.23 Before October 1, 1960, the Bakassi Peninsula was administered unde
r Calabar in accordance with
Akpabuyo County Council (Establishment) Instrument 1953, published in
the Eastern Region Public
Notice No. 86 of 1953 as amended (Annex NC-M 137).
2.24 The flexible attitude to territorial limits was evident in the gran
t by Nigeria in 1955 of an oil
exploration licence extending along the eastern coastal areas of Nigeria
(including Bakassi) as well as
(without differentiation) along the coastal areas of the Trust Territo
ry of British Southern Cameroons
(see further below, Chapter 3).
2.25 The practical reality in the Bakassi region was such that it was ad
ministered with little regard to
boundary formalities but rather in whatever way made most administrative
sense. This was
overwhelmingly as part of Nigeria in general and the Nigeria Protectorat
e in particular.
2.26 A ready example is the use of Nigerian postage stamps in the Britis
h Mandated and Trust
Territories throughout the period up to Nigeria's independence on 1 Octo
ber 1960. Thereafter, until
British Southern Cameroons became part of Cameroon a year later, the sta
mps used in that region were
Nigerian stamps overprinted "Cameroon UKTT".
2.27 In fact, the overall pattern of Nigerian and British official condu
ct in relation to the Bakassi
Peninsula has been remarkably consistent for over a century. Whether as
originally part of the domains
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of the Kings and Chiefs of Old Calabar, or subsequently as part of their
domains but subject to rights of
Great Britain under the Protectorate Treaty of 1884, or during the Manda
te and Trusteeship periods up to
the time of independence in 1960, Bakassi has consistently been administ
ered from Nigeria and as part
of the Nigerian political entity. Bearing in mind the geographical and p
hysical nature of the Bakassi
region, the then relatively sparse and thinly-spread population, and, co
nsequently, the limited
administrative resources devoted to the region, it is not surprising tha
t at times those responsible for
taking action did not bother too much about the precise legal basis or c
apacity in which they were
acting: for them the important practical thing was to get the job done a
s effectively as possible.
2.28 In reality the history of the Bakassi Peninsula shows it to have be
en administered as part of Nigeria,
in continuation of the authority exercised over it by the Kings and Chie
fs of Old Calabar. The pre-
independence administrative boundary was effectively on the eastern side
of the Peninsula (at the Rio
del Rey), and in the absence of any valid and effective treaty determin
ing the boundary in that region
that administrative boundary was the boundary on which uti possidetis juris operated.
2.29 For the purposes of the present proceedings, the decisive factor wa
s that those administering
Bakassi and those living or working there overwhelmingly looked westward
s to Nigeria for the source of
authority, and not eastwards to Cameroon.
B. Conclusion
2.30 For the foregoing reasons set out in this Chapter and Chapter 1, Ni
geria sees no reason to change
the views which it expressed in Chapter 9, paragraphs 9.73 et seq., of its Counter-Memorial. In brief -
(1) Before 1884 the Kings and Chiefs of Old Calabar possessed sovereig
nty over Bakassi;
(2) their sovereignty was unaffected by the Protectorate Agreement of
1884;
(3) the Anglo-German Treaty of 11 March 1913 was ineffective to transf
er territorial sovereignty
over Bakassi to Germany: the status quo ante was accordingly undisturbed, and title accordingly
remained vested in the Kings and Chiefs of Old Calabar;
(4) the 'Bakassi provisions' of the 1913 Treaty are severable from the
rest of the 1913 Treaty, so
that the boundary as delimited by the rest of the Treaty remains effecti
ve;
(5) nothing in the history of Bakassi after 1913 and up to the time of
Nigeria's Independence in
1960 served to transfer the sovereignty which the 1913 Treaty was itself
ineffective to transfer;
(6) that subsequent history, on the contrary, confirmed that the Bakas
si Peninsula remained in
practice effectively part of Nigeria throughout the period up to Indepen
dence in 1960;
(7) given the fundamental defect in the 'Bakassi provisions' of the 19
13 Treaty, uti possidetis
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juris was, on Independence, inapplicable in relation to the boundary purporte
dly established by
those provisions; it was, rather, applicable in relation to the effectiv
e legal and administrative
boundary running through the Rio del Rey;
(8) after Independence, Nigeria exercised sovereignty in Bakassi, demo
nstrating the continuity of
its administration of the area since before the establishment of the Pro
tectorate (see further
Chapter 3 below);
(9) Nigeria's sovereignty over Bakassi extended up to the boundary des
cribed in Chapter 11 of
Nigeria's Counter-Memorial, which Nigeria hereby confirms.
__________
1 NC-M, paras. 9.1-9.4.
2 NC-M, para. 9.3.
3 NC-M, para. 9.15; Annex NC-M 113.
4 RC, paras. 2.63-2.67.
5 "The role of effectivités is clear in a situation where the legal title is established. It is a c
onfirmatory and not a
contradictory role.... The effectivités cannot prevail over an established title based on agreements or treatie
s."
6 "Thus effectivités may play a part in the determination of the established boundary at a g
iven time, either
because of a lack of clarity in the legal title or for the confirmation
of that title. They cannot, however, prevail
over a legal title based on agreements or treaties."
7 NC-M, paras. 8.1-8.59.
8 See Land, Island and Maritime Frontier Dispute, I.C.J. Reports 1992, at pp. 398-399, paras. 61-62.
9 ibid., p. 565, para. 345.
10 ibid., p. 565, para. 345.
11 See NC-M, para. 9.5-9.6.
12 See NC-M, paras. 18.19-18.21.
13 RC, para. 5.179.
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PART I
BAKASSI
CHAPTER 3
THE INDEPENDENT CONFIRMATION OF THE ORIGINAL TITLE OF NIGERIA ON THE BAS
IS
OF HISTORICAL CONSOLIDATION, ACQUIESCENCE AND RECOGNITION
A. Introduction
(i) The Nigerian Title to Bakassi: The Legal Situation at the Time of
Independence
3.1 As Nigeria pointed out in the Counter-Memorial, the title of Nigeria to Bakassi was originally a title
vested in the Kings and Chiefs of Old Calabar. The original title of Old
Calabar was not affected by the Anglo-
German Treaty of 11 March 1913 and was eventually absorbed in the emergi
ng entity of Nigeria. By the time
of Independence in 1960 the original title to Bakassi vested in Nigeria
as the successor to Old Calabar.
(ii) The Bases of the Nigerian Title
3.2 As a preface to responding to the Reply of Cameroon it is necessary to restate the position of Nigeria.
3.3 The four bases of the Nigerian claim to title over the Bakassi Penin
sula are as follows:
(1) Long occupation by Nigeria and by Nigerian nationals constituting
an historical consolidation of title and
confirming the original title of the Kings and Chiefs of Old Calabar whi
ch title vested in Nigeria at the time of
Independence in 1960.
(2) Effective administration by Nigeria, acting as sovereign, and an a
bsence of protest.
(3) Manifestations of sovereignty by Nigeria together with acquiescenc
e by Cameroon in Nigerian sovereignty
over the Bakassi Peninsula.
(4) Recognition of Nigerian sovereignty by Cameroon.
3.4 These four bases of claims apply both individually and jointly. In p
articular, the title on the basis of
historical consolidation, together with acquiescence and recognition, in
the period since the Independence of
Nigeria, constitutes an independent and self-sufficient title to Bakassi
.
3.5 At this stage it is necessary to present a statement of the legal po
sition on which Nigeria relies. The
evidence indicates two stages in the post-Independence period.
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3.6 Stage 1. From the time of Independence until 1968 Nigeria had peacef
ul possession of the Bakassi
Peninsula, which continued to be administered as part of the Eastern Reg
ion of Nigeria. In 1968 there were
acts of harassment from Cameroonian soldiers which were aimed at some of
the Nigerian fishing ports.
However, Cameroon had no system of administration in place.
3.7 Stage 2. From 1972 there were Cameroonian initiatives concerning the
renaming of villages which were
ineffective but which clearly indicated the absence of any Cameroonian a
dministration in the region. From
1972 onwards there were sporadic Cameroonian activities but Cameroon did
not exercise overall or exclusive
control.
3.8 The significant characteristics of the situation can be now identifi
ed:
(1) At least until 1968 Nigeria exercised peaceful possession of Bakas
si and Cameroon acquiesced in this
status quo.
(2) At no stage did Cameroon exercise peaceful possession.
(3) The effective possession of Bakassi by Nigeria after Independence
confirmed the original title which
subsisted as a consequence of the ineffectiveness and non-implementation
of the 1913 Treaty in the Bakassi
region.
(4) Quite apart from the proof of original title, the effective posses
sion of Nigeria is to be found in acts
manifesting a continuous and peaceful display of sovereignty over the te
rritory. Although this sovereignty
must be continuous in principle, it need not be exercised at every momen
t, so long as there is an intention and
will to act as sovereign. How extensive the acts of sovereignty need to
be depends on the nature of the
territory.
3.9 As Nigeria will demonstrate, the evidence shows that at no stage did
Cameroon exercise peaceful
possession and at no stage did Cameroon exercise control in the region a
s a whole. The key stages in the
chronology set forth above are essentially confirmed by the contents of
the Cameroon Reply.
3.10 In general the Cameroon Reply offers very little evidence of effectivités and fails to comment in detail on
the evidence set forth in the Nigerian Counter-Memorial.
(iii) The Relevance of Uti Possidetis
3.11 The legal arguments advanced by Nigeria in the written pleadings ar
e in all respects compatible with the
principle of uti possidetis adopted by the OAU in its resolution of 21 July 1964. Both in the Memorial and
now again in the Reply, the Government of Cameroon misrepresents the legal regime of uti possidetis and the
OAU resolution. Thus the Reply (paragraphs 2.100-2.115) contends that the principle of uti possidetis prevents
any modification of boundaries based upon treaties. This contention is a
ccompanied by an acceptance of the
position that the principle of uti possidetis does not freeze a boundary for all time (paragraph 2.107). However,
Cameroon is reluctant to apply this logic to the case in hand.
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3.12 The doctrine clearly recognises that boundaries established at the
time of decolonisation may be changed
by lawful means. As Professor Bardonnet observed in his masterly course
at The Hague Academy in 1976:
"2. La signification de ces principes necessaires et fondamentaux est pa
rfaitement
claire: il est contraire au droit international d'employer la force pour
remettre en
cause les frontières d'un Etat et porter ainsi atteinte à son terr
itoire en le
démembrant. Mais on ne saurait aller au-delà et étendre, par un
glissement
insensible et parfois voulu, la portée des principes de l'intégrit
é territoriale et de
l'inviolabilité des frontières et les confondre, les brouiller ave
c les concepts
distincts d'immutabilité et d'intangibilité des lignes divisoires.
En un mot, si les
frontières sont inviolables, elles ne sont pas immuables et leur inta
ngibilité ne
peut constituer, en aucune manière, une règle impérative de jus cogens.
Affirmer, comme on l'a fait fréquemment, que la Charte de l'OUA et la
résolution
du Caire consacrent le principe de l'intangibilité des frontières
est un abus de
langage. Les rédacteurs de ces textes n'ont jamais dit que les fronti
ères des Etats
africains, telles qu'elles existaient au moment de leur accession à l
'indépendance,
étaient fixées une fois pour toutes et ne pouvaient jamais être
modifiées par des
procédés pacifiques; ils ont seulement dit qu'elles devaient êt
re « respectées »,
c'est-à-dire qu'elles ne pouvaient, en aucun cas, conformément au
principe de
l'intégrité territoriale, être remises en cause par la force.
Faut-il rappeler qu'en droit international la soumission au texte est la
règle
cardinale de toute interprétation et que, comme le notait Anzilotti,
« toute règle
doit être prise pour ce qu'elle contient réellement, sans en ét
endre ou en
1
restreindre le sens »."
3.13 This position, that the principle of uti possidetis does not prevent lawful changes in title, subsequent to
the original transmission of title at Independence, is supported by the
jurisprudence of the Court. As the
Judgment of the Chamber of the Court in the Land, Island and Frontier Dispute case makes clear, when the
dispensation on the basis of uti possidetis produces no decisive outcome, the conduct of the parties since
2
Independence is "of particular importance".
3.14 The Cameroon Government relies on various passages from the Judgmen
t of the Chamber in the Case
Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): see the Reply, paragraphs 2.102-2.103. But
these passages simply affirm the principle of uti possidetis in general terms and are thus inconclusive. Indeed,
the Judgment contains the following passage:
"It should again be pointed out that the Chamber's task in this case is
to indicate
the line of the frontier inherited by both States from the colonizers on
their
accession to Independence. For the reasons explained above, this task am
ounts to
ascertaining and defining the lines which formed the administrative boun
daries of
the colony of Upper Volta on 31 December 1932. Admittedly, the Parties c
ould
have modified the frontier existing on the critical date by a subsequent
agreement.
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If the competent authorities had endorsed the agreement of 15 January 19
65, it
would have been unnecessary for the purpose of the present case to ascer
tain
whether that agreement was of a declaratory or modifying character in re
lation to
the 1932 boundaries. But this did not happen and the Chamber has receive
d no
mandate from the Parties to substitute its own free choice of an appropr
iate
frontier for theirs. The Chamber must not lose sight either of the Court
's function,
which is to decide in accordance with international law such disputes as
are
submitted to it, nor of the fact that the Chamber was requested by the P
arties in
their Special Agreement not to give indications to guide them in determi
ning their
3
common frontier, but to draw a line, and a precise line."
3.15 This passage, which is relied on by Cameroon, accepts the principle
that the boundary could have been
modified by subsequent agreement, and points to the constraints resultin
g from the Special Agreement. In
other words, the Chamber recognises that, as a matter of general interna
tional law, the boundary as at
Independence may be modified as a consequence of the subsequent conduct
of the parties.
(iv) The Relevance of the Critical Date
3.16 The question of the critical date is analysed at some length in the
Counter-Memorial pp. 218-220. There
it is pointed out that the Cameroon Memorial (paragraphs 3.382-3.384) selects 1 October 1961 as the critical
date, the date when the boundary was allegedly 'frozen' and links this p
roposition with the application of the
principle of uti possidetis. Nigeria criticised this reasoning on several grounds. In the first pla
ce the Cameroon
Government implies that the critical date is determined by the applicati
on of the principle of uti possidetis,
which, it is alleged, involved the creation of a permanent regime. This
position is erroneous in law: see above,
paragraphs 3.13-3.15. In the second place, this approach avoids any iden
tification of the date at which the
dispute crystallised. As Nigeria pointed out in the Counter-Memorial (paragraph 10.19), the evidence suggests
that the dispute did not emerge definitively until January 1994.
3.17 In conclusion, Nigeria affirms her submissions relating to the crit
ical date presented in the Counter-
Memorial, pages 218-220, paragraphs 10.16-10.20.
(v) The Entitlement of Nigeria is not affected by the Maroua Declarati
on
3.18 In the period beginning in 1970 the Governments of Nigeria and Came
roon engaged in a series of
bilateral meetings for the purpose of settling outstanding maritime boun
dary issues. The following instruments
resulted from the series of talks:
(1) Declaration of the Joint Nigeria/Cameroon Boundary Commission, Yao
undé, 12-14 August 1970 (Annex
NPO 14).
(2) Report by the Nigeria-Cameroon Joint Boundary Commission, Lagos, 1
5-23 October 1970 (Annex NPO
16).
(3) Declaration of the Joint Nigeria-Cameroon Boundary Commission, Yao
undé, 4 April 1971 (Annex NPO
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19).
(4) Declaration of the Joint Nigeria-Cameroon Boundary Commission, Lag
os, 14-21 June 1971 (Annex NPO
21).
(5) Joint Communique, Heads of State Meeting at Garoua, 4-6 August 197
2 (Annex NPO 23).
(6) Joint Communique, Heads of State Meeting at Kano, 1 September 1974
(Annex NPO 24).
3.19 This sequence of meetings is significant in that it establishes cle
arly the consistent and constructive
contacts between the two Governments, both at the Head of State level an
d at the level of experts.
3.20 The Government of Cameroon is now contending that the Declaration a
dopted by the Heads of State at
Maroua on 1 June 1975 (Annex NC-M 143) is conclusive of the question o
f title to Bakassi. In the first place it
was not binding legally upon Nigeria because under the Constitution in f
orce at the time the relevant provision
(s.84(1)) of the Constitution of 1963, as amended by the Constitutio
n (Suspension and Modification) Decree
1967, stipulated that "the executive authority of the Federation shall be ves
ted in the Supreme Military
Council". General Gowon did not have the power to commit his Government
without the approval of the
Supreme Military Council, which constituted the Government of Nigeria.
3.21 In the circumstances, and in view of the series of important meetin
gs involving the two Heads of State
and General Gowon's earlier denial of the binding character of the chart
signed by him at Yaoundé on the
ground that it had not been approved by the Supreme Military Council, th
e President of Cameroon must have
been aware by 1975 of the constitutional constraints under which General
Gowon was exercising his authority.
3.22 In this context, the letter sent by General Gowon to President Ahid
jo on 23 August 1974 (Annex NR 12)
is of substantial probative value. The Nigerian Head of State began by s
aying that he was writing "on the
subject of the difficulties that arise from time to time on the border a
reas of Nigeria and Cameroun". In
paragraph three of the letter, Gowon informed Ahidjo:
"You will recall, Mr. President, that the important question of demarcat
ing the
borders between our two countries was discussed at length during our mee
ting in
Garoua. I will believe that the function of the joint commission of expe
rts
established to delineate the international boundary between our two coun
tries,
was to make recommendations on the basis of their technical examination
of the
situation, for consideration by our two Governments. As a technical comm
ission,
their views and recommendations must be subject to the agreement of the
two
Governments which appointed them in the first place. You will also recal
l that I
explained in Garoua that the proposals of the experts based on the docum
ents they
prepared on the 4 April 1971, were not acceptable to the Nigerian Government.
It has always been my belief that we can, both, together re-examine the
situation
and reach an appropriate and acceptable decision on the matter".
3.23 In this letter, as the Court will readily appreciate, General Gowon
was emphasising the following points
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to President Ahidjo:
(1) the question of boundary demarcation between Nigeria and Cameroon
is an "important question";
(2) the function of the commission of experts was to make recommendati
ons for the consideration of the two
Governments;
(3) the proposals of the experts based on the documents they prepared
on 4 thApril, 1971 were not acceptable
to the Nigerian Government;
(4) both Governments must re-examine the situation and reach an approp
riate agreement on the matter; and
(5) that the arrangements which might be agreed between them were subj
ect to the subsequent and separate
approval of the 'Nigerian Government'.
3.24 In the light of this sequence of meetings, and particularly in view
of the terms of General Gowon's letter,
when President Ahidjo participated in the talks at Maroua, he must have
appreciated the constitutional
constraints under which General Gowon was acting. Under the Nigerian Con
stitution in force at the relevant
time (June 1975), executive acts were in general to be carried out by
the Supreme Military Council or subject
to its approval. States are normally expected to follow legislative and
constitutional developments in
neighbouring States which have an impact upon the inter-State relations
of those States. Few limits can be
more important than those affecting the treaty-making power.
3.25 There is a strong analogy here with the view expressed by the Court
in the Anglo-Norwegian Fisheries
case. In relation to the question of the knowledge of Norwegian legislat
ion on the part of the United Kingdom,
the Court observed:
'The United Kingdom Government has argued that the Norwegian system of
delimitation was not known to it and that the system therefore lacked th
e
notoriety essential to provide the basis of an historic title enforceabl
e against it.
The Court is unable to accept this view. As a coastal State on the North
Sea,
greatly interested in the fisheries in this area, as a maritime Power tr
aditionally
concerned with the law of the sea and concerned particularly to defend t
he
freedom of the seas, the United Kingdom could not have been ignorant of
the
Decree of 1869 which had at once provoked a request for explanations by
the
French Government. Nor, knowing of it, could it have been under any
misapprehension as to the significance of its terms, which clearly descr
ibed it as
constituting the application of a system. The same observation applies a fortiori
to the Decree of 1889 relating to the delimitation of Romsdal and Nordmö
re
which must have appeared to the United Kingdom as a reiterated manifesta
tion of
5
the Norwegian practice.'
3.26 The arrangements prevailing within Nigeria were familiar to Preside
nt Ahidjo, as there had been a series
of previous dealings with Nigeria (see paragraph 3.18 above). As the C
ourt will readily recall, Article 46 of
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the Vienna Convention on the Law of Treaties provides as follows:
'1. A State may not invoke the fact that its consent to be bound by a tr
eaty has
been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that
violation
was manifest and concerned a rule of its internal law of fundamental imp
ortance.
2. A violation is manifest if it would be objectively evident to any Sta
te
conducting itself in the matter in accordance with normal practice and i
n good
faith.'
Even if there is a presumption that a Head of State is fully competent t
o commit his State, Article 46 shows
that that presumption is rebuttable.
3.27 Both Cameroon and Nigeria are parties to the Vienna Convention whic
h, in any event, represents the
standard of general international law. In the circumstances President Ah
idjo and his Government would be
familiar with the prevailing practice in the military government of Nige
ria and it would have been 'objectively
evident' that General Gowon did not have unrestricted authority.
3.28 Cameroon suggests (RC paragraph 8.43) that Nigeria's denial that
any international commitment resulted
from the Maroua Declaration is inconsistent with Article 7 of the Vienna
Convention on the Law of Treaties.
Cameroon is mistaken as to the significance of this Article.
3.29 Article 7 reads, in relevant part, as follows:
'1. A person is considered as representing a State for [certain specifie
d purposes]
if:
(a) he produces appropriate full powers; or
(b) ......
2. In virtue of their functions and without having to produce full power
s, the
following are considered as representing their State:
(a) Heads of State, Heads of Government, .....'
3.30 This Article is solely concerned with the way in which a person's f
unction as a State's representative is
established. It does not deal with the separate question of the extent o
f his powers when exercising that
representative function (which is the matter dealt with in Article 46)
.
3.31 Article 7 provides that a person's representative capacity is normally established by the production of
"full powers". Despite its name, "full powers" is the name given to a document, being a document which
concerns only the question of representative capacity. This is clear fro
m Article 2.1 (c), which reads:
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'(c) 'full powers' means a document emanating from the competent autho
rity of a
State designating a person or persons to represent the State for [certai
n specific
purposes].'
3.32 Article 7.2 does not provide that a Head of State necessarily and a
s a matter of substance possesses the
fullest possible range of powers to commit his State; it only provides t
hat he (like certain other high officials
of State), because of his office, does not need to produce this particu
lar documentary evidence of his
representative capacity. His representative capacity, normally established by producing such a document, is
evident from the office he holds. His powers as a representative are a separate matter.
3.33 The Government of Nigeria has at no stage, whether within the Feder
al Executive Council or at the
meetings of the Supreme Military Council or of its successor, the Armed
Forces Ruling Council, accepted that
Nigeria was bound by the Maroua Declaration.
3.34 In this connection it is necessary to refer to the initialled Minut
es of the meetings held in Yaoundé
between 28 and 29 August 1991 and from 11 to 13 August 1993. In the Minutes of the 1991 meeting the
following passages appear:
"La Partie Nigériane a relevé l'importance de cette question; elle
a estimé que la
position du gouvernement Nigérian sur cette question est connue du
gouvernement Camerounais. La partie Nigériane a precisé que tous l
es accords
signés dans le domaine des frontières avant la création en 1987
de la commission
nationale du frontiers du Nigéria ont été remis a cette commiss
ion. S'agissant en
particulier de la déclaration de Maroua, la partie Nigériane a sou
ligné que celle-ci
n'a pas été ratifiée par le Nigéria et que par consequent el
le ne constitute pas pour
elle, un instrument légal.
La partie Camerounaise a pris note de cette déclaration tout en pré
cisant que pour
elle tous les accords sont valables et qu'elle n'a jamais été noti
fée de cette position
de la partie Nigériane.
La partie Nigériane a souligné la necessité pour les deux pays
de s'accorder sur un
cadre réaliste de négociations en vue de la réunion prévue à
Abuja." 6
3.35 On page 5 of the Minutes of the August 1993 meeting, the third and
fourth paragraphs are clear:
'As regards the Maritime Sector of the border, the Nigerian Delegation r
e-
affirmed its non-recognition of the Maroua Declaration of 1975 on the gr
ound
that it was not ratified. The Cameroonian Delegation re-affirmed the val
idity of
the Maroua Declaration. For her, the Declaration was a result of a long
negotiation and detailed work by experts.
After a long and inconclusive discussion, which re-established the paral
lel
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positions of the two parties, it was agreed that the matter [be] submitt
ed to the two
7
Heads of Delegation for consideration.
It is clear from these minutes that Nigeria has never accepted that she
is bound by the Maroua
Declaration.
3.36 The Declaration of Maroua must be assessed in the general context o
f the bilateral relations between
Cameroon and Nigeria. In the relevant period, and since Independence, Ni
geria had considered Bakassi to be
Nigerian.
3.37 In the light of the circumstances, and the general course of dealin
g between the two Governments in the
periods concerned, the Government of Cameroon, according to an objective
test based upon the provisions of
the Vienna Convention, either knew or (conducting itself in a normally
prudent manner) should have known
that General Gowon did not have the authority to make legally binding co
mmitments without reference back
to the Nigerian Government.
3.38 The Cameroon Government makes the claim, in somewhat obscure terms,
that the Heads of State had
concluded a binding agreement at Yaoundé II on 4 April 1971: see the
Memorial, pages 130-1, paragraphs
2.219-2.225; and the Reply, pages 361-2, paragraphs 8.10-8.12 and pages 365-6, paragraphs 8.26-8.2
8.
Nigeria does not accept this construction of the meeting at Yaoundé a
nd it is contradicted by the terms of the
letter from General Gowon to President Ahidjo dated 23 August 1974: see
above, paragraphs 3.22-3.23. The
language of the second Declaration of Yaoundé (Annex NPO 19) makes
it very clear that the meeting formed
part of an ongoing programme of meetings relating to the maritime bounda
ry, and that the matter was subject
to further discussion at subsequent meetings.
3.39 It is surely significant that the text of the Declaration makes no
reference to a disposition of land territory
This construction of the transaction is confirmed by the text of the con
temporaneous Joint Communiqué
(Annex NC-M 145) and also by the internal Nigerian brief on the forthc
oming meeting, dated 20 May 1975
(Annex NC-M 144). The map annexed to the Maroua Declaration (Cameroon
Memorial p.526, Carte M23)
does not have any characteristics conclusive of the issue.
3.40 In assessing the significance of the Maroua Declaration, it is nece
ssary to see the episode in the general
context of relations between the two States and the impressive evidence
of a long existing Nigerian
administration in the Bakassi Peninsula. There can be no presumption in
favour of relinquishment of title to
territory. More particularly, there can be no presumption that, as an in
cidental result of the series of meetings
concerning the maritime boundary, Nigeria was surrendering a significant
tract of territory in her lawful
possession and populated by 100,000 Nigerians.
(vi) There is no evidence of Nigerian Acquiescence
3.41 In the Reply the Cameroon Government alleges that Nigeria has acquiesced in the clai
m of Cameroon to
Bakassi: see the Reply, pp. 89-91, paragraphs 2.140-2.145. This is a very weak contention. In
face of open and
continuous activity by the Nigerian public authorities in Bakassi, the G
overnment of Cameroon had failed to
make any protest relating to Bakassi as a whole, and there is very littl
e evidence of any administration in the
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area by Cameroon. The general question of the alleged acquiescence on th
e part of Nigeria will be examined
fully below in Section F of this Chapter.
B. Historical Consolidation of Title: the Legal Concept Reaffirmed
3.42 Nigeria relies on historical consolidation of title in relation to
Bakassi. The Reply (pp. 62-5, 77) seeks to
challenge the relevance of historical consolidation. The challenge is ov
erall unconvincing but it takes several
forms and the resulting confusion must be eradicated.
3.43 In paragraph 2.57 of the Reply the Cameroonian Government questions whether the doctrine of historical
consolidation really exists. This is an egregious reaction in face of th
e authorities cited by Nigeria (Counter-
Memorial, pp. 221-3), which involve the period 1953 to 1997 and experts of diff
erent nationalities.
3.44 The quotation from the work of Jennings (Reply, paragraph 2.57) does not help Cameroon. Jennings (in
the same book) helped to establish the concept (this in 1963) and it
has a prominent place in the recent edition
of Oppenheim, of which the senior editor is Jennings. Jennings is a distinguished au
thority and a former
President of the International Court. In the quotation (from his work o
f 1963) he is saying (which is obvious)
that the doctrine has certain limits.
3.45 The passages in which Sir Robert Jennings examines the doctrine cov
er more than four pages of The
Acquisition of Territory (at pages 23-28). Writing thirty-seven years ago, Jennings had this t
o say (in addition
to the short passage selected by Cameroon) (at page 25):-
"But the idea of historical consolidation is something more than a termi
nological
reform. It opens the door to a mode of acquiring title that is, or at le
ast may
become, subtly different from what is found in the old learning about oc
cupation
and prescription. Prescription, as we have seen, is based upon a peaceab
le,
effective possession - a possession as of a sovereign extending over a
considerable period. But such a possession may not be self-evident in a
disputed
case. It must, therefore, be proved, and for the purpose of this demonst
ration, a
great variety of evidences may be relevant - particularly the attitude o
f third
States, because repute is always an important factor in any question con
cerning
rights over land. But the notion of consolidation introduces something o
ver and
above the notion of evidences of sovereign possession; for these factors of repute,
acknowledgement and so on then become, if I have understood this aright,
not
merely evidences of a situation apt for prescription but become themselves
decisive ingredients in the process of creating title. Let me remind you
again of
the words of Professor de Visscher. Proven use 'is its foundation', but
this merely
represents a complex of interests and relations which in themselves have the effect
of attaching a territory or an expanse of sea to a given State (italics supplied).
And again, 'it is these interests and relations, varying from one case t
o another,
and not the passage of a fixed term, unknown in any event to internation
al law,
that are taken into direct account by the judge to decide in concreto on the
existence or non-existence of a consolidation by historic titles'."(emp
hasis in the
original unless otherwise stated; footnotes omitted)
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3.46 The quotation by Cameroon from the work published in 1963 is eccent
ric in view of the fact that in 1992
Jennings, as editor of the ninth edition of Oppenheim (co-edited with Sir Arthur Watts) gave historical
consolidation of titles a prominent place: see the Counter-Memorial, p. 221 for the relevant passage.
3.47 In the second place, the Reply (pp. 62-3) makes the unfounded assertion that treaty titles cannot be
affected by historical consolidation. No authority is given for this ass
ertion. A treaty-based title has no
particular cachet as compared with other titles. Like any other title, it can be modified
as a consequence of
express or implied consent or as a consequence of historical consolidati
on of title. The elements of
consolidation are described with great particularity in the ninth editio
n of Oppenheim, quoted in the Counter-
Memorial at page 221, paragraph 10.21.
3.48 None of the authorities suggests that historical consolidation cann
ot apply in the presence of a treaty-
based title.
3.49 The attempt of the Government of Cameroon to challenge the status o
f the principle of historical
consolidation is astounding. Apart from the authorities presented in the
Counter-Memorial, it would be easy to
produce others. Thus, the eminent French jurist, Paul Reuter, stated the
law as follows (in 1983):
"On a également pensé, à la suite d'un dictum de la CIJ dans l'affaire des
Pêcheries (1951, p. 116) et des travaux de C. de Visscher, pouvoir
présenter une
autre analyse juridique des faits d'exercice de la souveraineté en s'
appuyant sur la
consolidation historique basée sur le long usage. Elle se distinguerait de la
prescription parce que celle-ci ne peut jouer qu'à l'encontre d'une prétention
adverse, de l'occupation parce qu'elle s'applique également à des espaces
maritimes, et de la reconnaissance dont l'effet est instantané. Elle reposerait sur
une absence suffisamment longue d'opposition des Etats intéressés;
le facteur
temps jouerait ici un rôle essentiel. La consolidation jouerait à
la fois pour le
maintien et pour l'acquisition de la souveraineté territoriale; elle
permettrait de
rendre parfaite une souveraineté imparfaitement établie (inchoate title, affaire de
l'île Palmas précitée).
Cette conception a été exposée par C. de VISSCHER, notamment da
ns Les
effectivités en DI public, p.107, et Le régime des confins, p. 128, ainsi que par
d'autres auteurs comme Y. Z. BLUM, Historic titles in IL (Den Haag, Nij
hoff,
1965). Elle a tous les mérites d'une conception d'ensemble qui s'app
lique à toutes
les hypothèses en soulignant l'importance de l'exercice effectif de l
a souverainté
quand celui-ci est possible. Elle ne donne aucun droit à cet exercice
quand il
8
recontre une opposition."
3.50 Similarly, in the general course at the Hague Academy in 1983, Mich
el Virally expressed the position
thus:
" d) La consolidation des titres
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Face aux prétentions contradictoires à la souveraineté sur un t
erritoire, s'appuyant
sur des titres très divers et parfois difficiles à départager,
la jurisprudence
internationale, arbitrale et judiciaire, a toujours attaché la plus g
rande importance
à l'exercice paisible et continu des compétences étatiques, c'e
st-à-dire à
l'effectivité de l'autorité étatique, se manifestant dans la du
rée.
L'exercice continu de l'autorité étatique permet ainsi de consolid
er un titre qui, à
lui seul, n'aurait pas permis d'acquérir la souveraineté territori
ale (découverte,
contiguïté), ou de purger un titre de son vice initial (conquê
te). Il peut prévaloir
même sur un titre résultant d'un traité ou d'un autre acte juri
dique (affaire de l'Ile
9
de Palmas, RSA, II, pp. 845 ss.)."
3.51 Title on the basis of historical consolidation is well-established
in the sources of the law and in the
professional milieu of international law. As Dr. Marcelo Kohen has point
ed out, it is commonplace for
reference to be made to such title in pleadings before international tri
bunals: Kohen, Possession Contestée et
Souveraineté Territoriale, Genève, 1997, pp. 57-59. The concept of consolidation is almost rou
tinely accepted
10
by international tribunals. A recent example is to be seen in the Arbitration between Eritrea and Yemen. The
distinguished Court of Arbitration expounded the relevant law as follows
:
"450. Both Parties, however, also rely upon what is a form of historic c
laim but of
a rather different kind; namely, upon the demonstration of use, presence
, display
of governmental authority, and other ways of showing a possession which
may
gradually consolidate into a title; a process well illustrated in the Eastern
Greenland case, the Palmas case, and very many other well-known cases. Besides
historic titles strictly so-called the Tribunal is required by the Agree
ment for
Arbitration to apply the 'principles, rules and practices of internation
al law';
which rubric clearly covers this kind of argument very familiar in terri
torial
disputes. The Parties clearly anticipated the possible need to resort to
this kind of
basis of decision - though it should be said that Yemen expressly introd
uces this
kind of claim in confirmation of its ancient title, and Eritrea introduc
es this kind
of claim in confirmation of an existing title acquired by succession - a
nd the great
quantity of materials and evidences of use and of possession provided by
both
Parties have been set out and analysed in Chapter VII above, together wi
th
Chapter VIII on maps and Chapter IX on the history of the petroleum agre
ements.
It may be said at once that one result of the analysis of the constantly
changing
situation of all these different aspects of governmental activities is t
hat, as indeed
was so in the Minquiers and Ecrehos case where there had also been much
argument about claims to very ancient titles, it is the relatively recen
t history of
use and possession that ultimately proved to be a main basis of the Trib
unal
decisions. And to the consideration of these materials and arguments thi
s Award
now turns.
Evidences of the Display of Functions of State and Governmental Authorit
y
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451. These materials have been put before the Tribunal by the Parties wi
th the
intention of showing the establishment of territorial sovereignty over t
he islands,
in Judge Huber's words in the Palmas case, 'by the continuous and peaceful
display of the functions of state within a given region'. But the kind o
f actions that
may be deployed for this purpose has inevitably expanded in the endeavou
r to
show what Charles de Visscher named a gradual 'consolidation' of
title." (footnotes omitted)
C. The Specific Components of the Historic Consolidation of Nigerian Tit
le
(vii) Introduction
3.52 In the sections which follow Nigeria will present the evidence to e
stablish the specific components of
Nigeria's title to the Bakassi Peninsula on the basis of the historical
consolidation of title. These elements are
diverse precisely because the legal concept has been designed to reflect
the various strands of legitimacy
involved in relation to title to inhabited territory.
3.53 The Government of Nigeria finds it necessary to remind the Court of
the highly important codification of
the concept of consolidation by Jennings and Watts in the ninth edition
of Oppenheim's International Law:
"Consolidation of historic titles. Yet continuous and peaceful display i
s a complex
notion when applied to the flexible and many-sided relationship of a sta
te to its
territory and in relation to other states. The many and varied factors w
hich it may
comprise were felicitously subsumed by Charles de Visscher under the
convenient rubric of 'consolidation by historic titles'; of which he say
s:
'Proven long use, which is its foundation, merely represents a
complex of interests and relations which in themselves have the
effect of attaching a territory or an expanse of sea to a given State.
It is these interests and relations, varying from one case to another,
and not the passage of a fixed term, unknown in any event to
international law, that are taken into direct account by the judge to
decide in concreto on the existence or non-existence of a
consolidation by historic title.'
In an important examination of the criteria applied by tribunals to reso
lve
territorial disputes, Munkman identified inter alia the following: recognition,
acquiescence and preclusion; possession and administration; affiliations
of
inhabitants of disputed territory; geographical considerations; economic
considerations; historical considerations. Of these several factors it h
as been said
that: 'Recognition is the primary way in which the international communi
ty has
sought to reconcile illegality or doubt with political reality and the n
eed for
11
certainty'." (footnotes omitted)
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3.54 In the opinion of the Nigerian Government the evidence of historica
l consolidation of title in the period
since Independence serves two distinct but related purposes:
First: to provide a confirmation of the original title of the City States of C
alabar, which title was eventually
absorbed in the emerging entity of Nigeria. By the time of Independence
the original title to Bakassi vested in
Nigeria as the successor to the City States of Old Calabar. The evidence
of historical consolidation since
Independence thus confirms the original title of Nigeria.
Second to provide, if this were to prove legally necessary, an independent sou
rce of title based upon the
process of peaceful possession, acquiescence, and historical consolidati
on in the period since Independence.
3.55 The question of title to Bakassi is a matter of considerable concer
n to the Government of Nigeria and,
indeed, to several States of the Federal Republic, and to the peoples of
south-eastern Nigeria. Given the
significance of the legal issues, it has been found necessary to present
in a single and integrated form the
evidence of State activities, together with other components of the hist
oric consolidation of title, and thus
avoid too much cross-reference. It is hoped that this procedure will pro
ve convenient for the Court.
3.56 The specific components of title will now be reviewed.
(viii) The Original Title of the City States of Old Calabar
3.57 The first component of title by historical consolidation, and appro
priately the first element, is the legal
personality of the City States of Old Calabar and the original title whi
ch they had in accordance with the
12
pertinent inter-temporal law, prior to the imposition of colonial rule. This component interacts with several
other components.
3.58 In the passage quoted above from the ninth edition of Oppenheim, re
ference is made to 'historical
considerations' and this element is given prominence in the classic stud
y by Munkman in the British Year
Book (Vol. 46 (1972-73), pp. 99-100, 108-9).
(ix) The Affiliations of the Population of Bakassi : the Legal Signifi
cance of Social Organisation
3.59 The same passage quoted from the ninth edition of Oppenheim refers
to relevance of the "affiliations of
inhabitants of disputed territory". On the operation of this factor Munk
man observes:
"Where the territory is inhabited, the affiliations of the inhabitants wi
ll be of
great - but, probably, because of the considerations militating in favou
r of the
State in actual possession, secondary - importance. Where the administra
tion is
itself disputed and doubtful, the affiliations of the inhabitants will p
robably be
decisive. In inhabited areas considerations of geography, strategy, etc., will
usually be a very secondary consideration. Economic, historical, cultura
l and
social factors, and considerations of convenience will usually correspon
d to the
affiliations of the inhabitants. But these considerations, even if they
do not all
weigh on the same side, will probably only call for some adjustment of a
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boundary delimited primarily on the basis of the affiliations of the inh
abitants."
(emphasis added)
3.60 The majority of the fishermen and farmers living in the Bakassi Pen
insula have for centuries belonged to
the Efik and Effiat ethnic groups, which have always had strong links wi
th the City States of Calabar. The
principal mainland towns and villages of the Efik, which are shown at Fig. 3.1, are as follows:
Calabar
Ikang
Itu
Ikot Nakanda.
3.61 The principal towns and villages of the Effiat, which are also loca
ted on Fig. 3.1, are as follows:
Uyo
Eket
Oron
Ikot Ekpene.
3.62 The permanence of the Efik and Effiat settlements in Bakassi and th
eir social and ethnic links to Calabar
and Eket are confirmed by the historical sources. This has been examined
in detail in Chapters 3, 4 and 5 of
the Counter-Memorial.
3.63 A particularly striking feature, for example, is the relation betwe
en Effiat villages in the Mbo Local
Government Area of Akwa Ibom State and their affiliated villages in (wh
at is now) the Bakassi Local
Government Area. A table of such villages and their affiliates in Bakass
i is set forth below, paragraph 3.76.
3.64 A further significant element in the pattern of association consist
s in the indigenous and ancient society
known as Ekpe. This is described (from the outside, as it were) in the
section entitled "Societies" (paragraph
48 et seq.) in the Report by Mr. Anderson, Assistant District Officer (Annex NR
13). The Ekpe Society
represented the strongest traditional administrative and judicial organi
sation. Each main village has its own
Ekpe house and the Ekpe Society has strong links with Calabar. Adherence
to this Society is compatible with
the practice of Christianity and co-exists with church membership. The E
ffiat ethnic group also use the Ekpe
Society as a form of social administration: see below, paragraphs 3.70-3
.71.
3.65 It is very significant that Cameroon has not been able to produce a
ny evidence of affiliations of the
communities on Bakassi with Cameroon. Cameroon has not alleged that any
Cameroonian nationals have been
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displaced as a consequence of Nigerian actions. No claim has been presen
ted on behalf of Cameroonian
nationals resident in the Bakassi region: see the Conclusions of the Rep
ublic of Cameroon in the Memorial
and in the Reply.
3.66 In the passages in the Memorial in which some reference to Cameroonian nationals might have been
expected, reference is made conclusively to communities of Nigerian orig
in 'residant au Cameroun': see the
Memorial, page 490, paragraph 4.433; and see also page 491, paragraph 4.434.
(x) The Indigenous Peoples of South-Eastern Nigeria: Ethnic Groups and
the Related Toponymy
3.67 This section will examine the history of settlement and the toponym
y of the Bakassi villages. This will
assist in understanding the pattern of the development of local governme
nt administration in Bakassi and the
role of the Efik and Effiat tribes in the pattern of settlement.
3.68 The chief tribe in the region of Old Calabar in the period after 17
00 were, and still are, the Efiks and the
Effiat (who are often classified as Ibibio). The Nigerian Ethnic Group
s Survey map of 1972 at Fig. 4.1 of the
Counter-Memorial shows the areas inhabited by these two tribes. Historically the predomi
nant people in the
area north of Bakassi, in terms of numbers and influence, were, and stil
l are, the Efiks, while to the west of the
peninsula, the Effiats predominate.
3.69 There are extensive oral traditions as to the early migrations of t
he Efik people before they came to Old
Calabar, and these are discussed in some detail in A K Hart, Report of the Enquiry into the Dispute over the
14
Obongship of Calabar, published in 1964 by the Government Printer, Enugu, Eastern Nigeria. The Efiks
gradually established themselves on the coast and became active fisherme
n and traders, ultimately setting up
something of a sea-borne empire, with City States up and down the Guinea
Coast from the Niger Delta to the
Rio del Rey, and settlements even beyond. Many of their towns - Duke Tow
n, Creek Town, Henshaw Town,
Obutong Town - were clustered together in the heart of the area which be
came known as Old Calabar. This
area included other Efik settlements such as Arsibon's Town (Archibong)
(near the northern edge of the
Bakassi Peninsula). The modern Tom Shot island, on the western side of
the Cross River estuary, and
Jamestown are traditionally Effiat. Jamestown is situated just to the no
rth of Tom Shot and was formerly
known as Tom Shot Town. The Chief of the town was James Bassey, and henc
e the town became known as
James' Town.
3.70 The Efiks of this unique polity were governed by a patriarchal "Hou
se" system, under which each of the
above communities was headed by its own King or Chief, elected by that H
ouse. The ruling oligarchy was
united by a highly organised society already referred to at paragraph 3.
64 above, the Ekpe Society (commonly
referred to simply as "Ekpe"), which played an important part in the re
ligious and civil life of the Efik polity
15
and is still important today. The local activities of the Ekpe Society centre on the Palaver House. A
ll the
major towns of the area have a Shrine known as the Palaver House, includ
ing Calabar, Jamestown, Ikot
Nakanda, Archibong, Abana and West Atabong (see Fig. 3.2).
3.71 The Effiat people have certain similar cultural and social trends t
o the Efiks. In particular, both tribes use
Ekpe as a means of social administration. The main Effiat Ekpe Palaver H
ouse, and seat of the Effiat clan
head, is at Jamestown in Akwa Ibom State. The people of the southern Bak
assi villages regard this as their
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ancestral centre and there is still much interaction between the people
living on both sides of the Cross River
estuary. The Effiats are nonetheless distinct from the Efiks. They origi
nally inhabited the riverine areas to the
west of the Cross River estuary. Becoming principally fishermen, they mi
grated across the estuary to set up
fishing settlements on the creeks of Bakassi, which over the last hundre
d years have increased in number and
become permanent. These settlements include Abana and East and West Atab
ong.
3.72 As the population on mainland Nigeria grew, fishermen and farmers f
rom the area south of Calabar,
around Ikang and Ikot Nakanda, moved across the Akpa Yafe in increasing
numbers. They settled in the
existing villages of Archibong and Akwa, and created new settlements suc
h as Ine Akpa Ikang, Mbenmong
and Nwanyo. Villages were named after the founders or after the place of
origin of the first settlers. The word
"Ine" in Efik means fishing settlement. Hence Ine Akpa Ikang and Ine Ika
ng were both fishing villages named
after settlers from Ikang, and Ine Effiom is a fishing village founded b
y the head of the Effiom family (see Fig.
3.3).
3.73 The earliest Efik settlements in the region were sited for the most
part at the northern end of Bakassi.
Arsibon's Town, which became known as Archibong, was referred to as earl
y as 1786 in Antera Duke's
16
Diary. It was re-populated by Prince Asibong Edem III, a descendant of Duke Ep
hraim of Calabar, as his
own family colony, in the early part of the 19th century.
3.74 The southern part of Bakassi, on the other hand, was mainly settled
by the inhabitants of villages west of
the Cross River estuary who crossed from their traditional homeland arou
nd Eket, Oron and Jamestown and
founded settlements on Bakassi as bases for seasonal fishing activity. A
bana, for instance, was situated on
land which was given by King Orok Bassey Duke to his two brothers-in-law
, Ntuen Umo and Ebe, who
migrated from Esuk Mba (in present-day Akwa Ibom) over a hundred years
ago. Abana became the main
centre of what colonialists referred to as Fish Towns. The colonial auth
orities tried to establish a Native Court
in Abana, but this was rejected by the people who stressed that they alr
eady had a Native Court in Jamestown.
The practice grew up of naming these newly-found settlements on Bakassi
after the Effiat families who used
them as a fishing base, such as Ine Atayo which was named after the Atay
o family, who founded the village.
Sometimes the founder's name was used, sometimes the name of the town fr
om which he came.
3.75 West Atabong derives its name from the substantial settlement of At
abong Beach on the mainland.
Atabong in Effiat means "place of cane" and the village of West Atabong
on Bakassi was built with cane
grown in and around Atabong Beach. Atabong Beach has a thriving fish mar
ket at which Bakassi fishermen
sell some of their catch. It is a roadhead from which Bakassi fish is tr
ansported all over Nigeria. As another
example, Utan means "sand"; thus Ine Utan means fishing village built on
sand. It is this pattern of settlement
and naming of villages which accounts for the fact that place names on B
akassi are linked with the names of
settlements lying further to the west and north-west, but not to the eas
t or south-east. A list of settlements on
Bakassi together with a translation of their names and details of their
founders appeared in the Tables at the
end of Chapter 3 of the Counter-Memorial.
3.76 Set out below is a table of specifically Effiat villages in Mbo Loc
al Government Area (in Akwa Ibom
State) and their affiliated villages on Bakassi. It also states the nam
es of the founding fathers of these affiliated
villages. This information was provided by the current Effiat clan head,
Obong Okon Effiong Etifit, and the
Vice-Chairman of Mbo Local Government Area, Asuquo Okon Bassey.
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ORIGINAL HOMES OF AFFILIATED SETTLEMENTS FOUNDING FATHERS
EFFIAT IN MBO LOCAL IN BAKASSI
GOVERNMENT OF AKWA (where known)
IBOM STATE
Esuk Enwang Ine Atayo Obong Atayo Ossosi
Inua Mba Obong Iyonkpong Eda
Obio Iyonkpong Atayo Umoh Nkponta
Ekpri Ine Atayo
Obong Nim Ine Odiong Udo Nkok Ekung
Ine Ekoi Udo Nkok Ekung
Ine Edem Ntong
Edem Abasi
Utan Brama Akpa Nkanya Obong Efah
Onosi
Ibuot Utan Ine Akpak Akpak Nte Odiong
Ine Ekong Obong Ekong Mba
Utan Efiong Ine Utan Iyobo Nte Odiong
Afa Iyobo Iyobo Nte Odiong
3.77 These names and affiliations clearly do not derive from any settlem
ent, family or other association with
Cameroon.
3.78 It is clear that the settlement of the villages on Bakassi by Niger
ian nationals of the Efik and Effiat tribes
has been a steady process over the course of the last century. This patt
ern of settlement has been reflected in
the ever-increasing level of administration over the villagers and their
populations by successive Nigerian
local government organisations (see Section (viii) below).
(xi) The Close Relationship Between the Economic Life of Bakassi and t
he Economy of the Mainland of
Nigeria.
3.79 As the distinguished editors of Oppenheim's International Law observe :
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"In an important examination of the criteria applied by tribunals to res
olve
territorial disputes, Munkman identified inter alia the following... economic
17
considerations; ...".
3.80 The editors, Sir Robert Jennings and Sir Arthur Watts, were describ
ing the practical and evidential
content of the concept of the consolidation of historic titles. In this
connection it is not unusual for the Court,
and other tribunals, to take the economic usage of the local inhabitants
into account.
3.81 In the Judgment in the Anglo-Norwegian Fisheries case the Court stated the following:
"Finally, there is one consideration not to be overlooked, the scope of
which
extends beyond purely geographical factors: that of certain economic int
erests
peculiar to a region, the reality and importance of which are clearly ev
idenced by
18
a long usage."
3.82 In the Rann of Kutch arbitration the President gave particular legal significance to the use
of grazing
grounds by the inhabitants of Sind. In the opinion of Judge Lagergren, t
he President :
"With reference to Dhara Banni and Chhad Bet, I deem it established that
, for
well over one hundred years, the sole benefits which could be derived from these
areas were enjoyed by inhabitants of Sind. It is not suggested that the grazing as
such was subject to British taxation. Such limited evidence as there is
on record
seems, however, to justify the assumption that the task of maintaining l
aw and
order was discharged by the Sind authorities; it is not even suggested t
hat the
authorities of Kutch at any time viewed such a task as forming part of t
heir duties.
The Kutch Tajvijdar of Chhad Bet stated in a revealing letter of 26 Marc
h 1940
that
"it is seen that the people of foreign territory have assumed a form
of administration on this bet and have for a long time established
their foothold" (see Chapter IX, Section 15.10.3).
Whatever other Government functions were required with respect to these
outlying grazing grounds, on which herds of cattle were from time to tim
e
shepherded, were apparently undertaken by Sind. Thus, the births, deaths
and
epidemics occurring there were recorded by the taluka office in Diplo. I
t is not
19
shown that Kutch at any time established a thana on Chhad Bet." (emphasis
added)
3.83 In response to evidence that Kutch attempted to collect grazing fee
s in the period before 1845 and after
1927, the President observed:
"at no time were these tax levies effective, as is evidenced by the smal
l amounts
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recovered, which fell far short of the expenditure occurred in the colle
ction. More
significantly, ... the imposition of the levy was opposed, not only by t
he local
villagers, but by the British Government authorities concerned ... Taken
in all,
these activities by Kutch cannot be deemed to have constituted continuou
s and
effective exercise of jurisdiction. By contrast, the presence of Sind in
Dhara
Banni and Chhad Bet comes as close to effective peaceful possession and
display
of Sind authority as may be expected in the circumstances. Both the inhabitants of
Sind who used the grazing grounds, and the Sind authorities, must have a
cted on
the assumption that Dhara Banni and Chhad Bet were British territory." 20
(emphasis added)
3.84 The fishing communities long established on Bakassi have strong eco
nomic links with the mainland of
Nigeria. Their building materials come from the mainland. They use Niger
ian currency and sell their products
in Nigerian markets. The villages on Bakassi have names which are derive
d from settlements on the Nigerian
mainland (see above paragraphs 3.75, 3.76).
3.85 The existence of co-operatives and other voluntary associations lin
ked with the bigger Nigerian
community evidence the pattern of social and economic links. In particul
ar, the private dwellings forming the
villages in Bakassi belong to Nigerian nationals and the materials for t
heir construction come from the
mainland. As Mr. Harrison, Counsel for the United Kingdom, pointed out i
n the oral argument in the
Minquiers and Ecrehos case :
"Naturally, we agree that if an Englishman owns property in France, that
does not
make his property English soil, any more than a private French property
in
England is French soil. But when you find houses on an island, all of wh
ich are
owned by the subjects of a certain country, and there is no concrete evi
dence on
the island of the sovereignty of, or of administration by, any other cou
ntry, then a
strong and almost irresistible presumption arises that the sovereignty i
s vested in
the country whose nationals own those houses. In such circumstances the
presence of the houses, while it might not be per se conclusive evidence of
21
sovereignty, is, I submit, very forcible presumptive evidence of it."
(xii) The Use of the Nigerian Currency by the Administrators and Popul
ation of the Bakassi Peninsula
3.86 It is customary for the population of the Bakassi villages to use t
he Nigerian naira as currency. In the
early years after Independence, the currency used was the Nigerian pound
, shilling and pence. The Clan Heads
of the principal villages attest to this practice: see paragraph 3.139 b
elow and the statements relating to
Archibong, Akwa, Atabong East, and Abana in Appendix to this Chapter.
3.87 Defendants in criminal cases who were residents of Bakassi fishing
ports are faced with charges based
upon valuations of stolen property in Nigerian naira: see Annex NR 14. C
anoe landing fees are fixed in naira:
see Annex NR 15. General rates imposed by Akpabuyo L.G.A. are assessed a
nd paid in naira (see paragraph
3.168 below).
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3.88 In correspondence in 1968 between the Bakassi village chiefs and on
e of the Etuboms (Chief Okon Ita) in
Calabar, the references to sums of money were to Nigerian pounds: see An
nex NC-M 151. The same reference
to Nigerian currency appears in the correspondence between the Obong of
Calabar and the Bakassi chiefs in
the same period: see Annex NC-M 152.
3.89 The salary of the head teacher of the primary school in Abana in th
e period 1980 to 1992 was paid in
naira: see Annex NC-M 185.
3.90 The habitual use of Nigerian currency is an inevitable concomitant
of the close economic and social
relations between the mainland of Nigeria and the Bakassi region. Camero
on has failed to produce any
evidence that her currency was in use in the Bakassi region.
(xiii) The Administration of Bakassi as part of Nigeria in the Period
1913 to 1960
3.91 Nigeria has, in Chapter 9 of the Counter-Memorial, and in Chapters 1 and 2 of this Rejoinder contended
that the 11 March 1913 Treaty was ineffective in relation to Bakassi and
never implemented there, and that
Bakassi continued to be administered by Nigeria, as part of the Eastern
Region of Nigeria, throughout the
period 1913 to Independence.
3.92 Evidence of such administration included the recognition by the Bri
tish of the strong links between
Calabar and Bakassi, the inclusion of Bakassi villages in Laws and Order
s throughout the 1950s, and the
continuing role played by the Obong or by Calabar in the administration
of the Bakassi Peninsula.
Furthermore, during this period, the settlements on Bakassi remained wit
hin the jurisdiction of the Nigerian
Native Court system based in the Calabar and Eket Divisions of Eastern R
egion, and schools set up in some of
the Bakassi settlements were administered within the Eket/Opobo School B
oard of Eket Division.
(xiv) The Local Government Administration in South-Eastern Nigeria aft
er Independence
3.93 Prior to Independence in 1960, Bakassi was under the administration
of Akpabuyo Rural District Council
and Ibaka Rural District Council. These were both within the Eastern Reg
ion. At Independence, the northern
half of Bakassi (including Archibong, Akwa and Ine Akpa Ikang) was adm
inistered by Akpabuyo Local
Council, within Calabar Division of the Eastern Region of Nigeria. The s
outhern part of Bakassi (including
Abana and East and West Atabong) was administered by Ibaka Local Counci
l within Eket Division of the
Eastern Region (see Fig. 3.4). This division of the peninsula reflected the affiliations of the pop
ulation (see
Section (iv) above).
3.94 In 1967, the northern part of Bakassi was administered by Akpabuyo
County Council, within Calabar
Division of the newly-created South-Eastern State. However the southern
part of Bakassi was now being
administered by Oron East County Council of Oron Division, within South-
Eastern State (see Fig. 3.5).
3.95 In 1976, the then South-Eastern State was re-named Cross River Stat
e. Cross River State was divided into
Local Government Areas. The northern part of Bakassi was administered by
Odukpani Local Government
Area while the southern part of Bakassi was administered by Oron Local G
overnment Area (see Fig. 3.6).
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3.96 In 1987, Akwa Ibom State was created and the Local Government Areas
were again reorganised. The
northern part of Bakassi was now administered by Akpabuyo Local Governme
nt Area within Cross River
State. The southern part of Bakassi was administered by two Local Govern
ment Areas within Akwa Ibom
State: Effiat/Mbo Local Government Area and Okobo Local Government Area.
Effiat Mbo Local Government
Area administered, inter alia, Abana, Onosi, Ine Akpak and Ine Odiong. Okobo Local Government Area
administered, inter alia, East and West Atabong (seeg. 3.7).
3.97 This remained the situation until 1996, when Bakassi Local Governme
nt Area was created as part of
Cross River State. This Local Government Area encompassed the whole of t
he Peninsula (seFig. 3.8).
(xv) The Clan system and the Exercise of Authority by Traditional Rule
rs
The location of places mentioned in this Section is shown on.3.9 at the end of the Section
Place names on Bakassi in this and the following sections are highlighte
d in bold
3.98 The role of traditional rulers in Nigerian society has been recogni
sed and maintained within the
framework of the post-Independence Constitution. This role has been main
tained even during periods of
military rule. In relation to the Bakassi Peninsula the historical posit
ion of the Obongs of Calabar and the
Paramount Chiefs of Eket/Oron is reflected in the cultural pattern which
has obtained since Independence.
3.99 The relationship is maintained through the Council of the Obong of
Calabar where all cognate Efik Clans
are represented. Set out below is a schedulnaming the existing members of the Council, some of whom are
also natives of the Bakassi area:
NAME MEMBERSHIP STATUS IN BAKASSI OCCUPATION
STATUS IN COUNCIL
Etubom Itam Eyo Present Chairman of Amoto Clan Farming
Ibitam Council
Etubom Oyo Former Chairman of Akwa Clan FIFA Official
Council
Orok Oyo-Ita
Etubom Ukorebi Former Secretary of Council Odon Ambai Ekpa Immediate Past Deputy
Ukorebi Asuquo Clan Rector, Calabar
Polytechnic
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Chief Ekpo Eyo Present Secretary of (a) Present Secretary Political Scientist and
General
The Obong's Council Lecturer in Public
Of Bakassi Natives
Administration
Assembly
(b) Clan Head Elect of
Amoto Clan
(c) Direct Descendant of
Founders of both Amoto
And Akwa Clans
Etubom Ekpo E.E. Vice Chairman of Council Direct Descendant of Businessman
Archibong
Archibong Clan
Chief Micah Eniang Adviser Archibong Clan Broadcaster
Ededem Archibong
Chief Eniang Esien Secretary, Etuboms' Abana clan Former Hon.
Traditional Council Commissioner of
Cross River State
Chief Efiom Eyamba Adviser Odon Ambai Ekpa Clan Engineer
Chief Mrs Cecilia Ada Idaha Ke Efik Eburutu Direct Descendant of Present Chairman,
Ekpenyong Founder of Mben Mmong
Ekanem Esin Village of CRSLG Service
Akwa Clan
Commission; Former
Deputy Governor of
Cross River State Govt.
Chief Dr Sama Ekpo Ada Idaha Ke Efik Eburutu Akwa Clan Medical Doctor
Sama
Chief Okon Edet Usim Ada Idaha Ke Efik Eburutu Direct Descendant of Serving Nigerian
Founders of Odon, Amoto
and Efut Inwang Clans Diplomat in Iraq
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Chief Mrs Florence Ita Ada Idaha Ke Efik Eburutu Ekpot Abia Atabong Clan Politician
Giwa
Chief Mrs Ekanem Ada Idaha Ke Efik Eburutu Odon Clan Medical Matron
Ikpeme
High Chief Dr. Ada Idaha Ke Efik Eburutu Atabong Clan Medical Consultant;
Emmanuel Nyong Former Federal
Nsan
Government Minister of
Health
Chief Dr Archibong Ada Idaha Ke Efik Eburutu Direct Descendant of Engineer
Founder
Edem Young
Of Amoto Clan
Chief (Engr) Richard Ada Idaha Ke Efik Eburutu Efut Inwang Clan Former Rector of
Ekanem Calabar Polytechnic
Etubom Okon Etim Etubom of Atabong Clan Present Antai Ema Atabong Retired Superintendent
of Police
Okon Asuquo Clan. Head Elect
Chief Etim Okon Edet Ada Idaha Ke Efik Eburutu Native of Abana Clan - Politician
Former Akpabuyo/Bakassi
Local Govt Chairman
Chief Dr Emmanuel Ada Idaha Ke Efik Eburutu Native of Community Senior Lecturer, Dept.
Leader of Geography in
Efiong-Fuller University of Calabar
In Akwa Clan
Chief Barrister Andem Adviser Native of Atabong Clan Lawyer
Attah
3.100 Examples of the Certificate of Recognition by Cross River State Go
vernment for two of the above listed
Chiefs, Chief Okon Etim Okun Asuquo and Chief Ekpo Edem Archibong, are a
nnexed at NC-M 150. These
documents, issued pursuant to section 13 of the Traditional Rulers Law o
f 1978 (see paragraph 3.107 below),
reveal that these Chiefs are the village heads respectively of Atabong W
est and Archibong Town in what is
now Bakassi Local Government Area.
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3.101 Customary procedure for the appointment of Clan Heads and Heads of
Cognate Efik families is similar
throughout Calabar and Bakassi. The attendant criteria are also similar.
They are:
(1) Ability to prove one's birth and speak Efik;
(2) Must not be a charlatan;
(3) Must be a house owner;
(4) Must be a full initiate of Ekpe Society;
(5) Appointment must be made by the acknowledged king-makers.
3.102 The role of the Etuboms (Elders) and Chiefs must not be under-es
timated. The inhabitants of the area
have great allegiance to their leaders and rely on them for their safety
, welfare and good administration. In an
area as remote as Bakassi from the centre of Federal Government, origina
lly in Lagos and then in Abuja, the
role played by the traditional rulers is very important.
3.103 Correspondence between Etubom Okon Ita, Etubom of the people of At
abong, and the Chiefs of local
villages on Bakassi in 1968 reveals an interesting insight into their po
sition in society. During the Nigerian
civil war, a letter dated 5 April 1968 (Annex NC-M 151) from the Etubo
m to the Chiefs of Abana, Ine
Odiong, Ine Atayo, Ine Akpak and Ine Atabong stated his concern that the
ir villages had been taken over and
occupied by Cameroonian soldiers and police acting under the orders of t
he Cameroonian Government, and
that the villagers were being forced to change their nationality from Ni
gerian to Cameroonian. He requested
the attendance of the Chiefs at the meeting to discuss the situation. Th
is letter was followed by correspondence
in Efik (translations are also provided) in which the Etubom arranged
the meeting and requested that the
villages pay some of the cost of a visit by the Etubom and his lawyer, B
arrister Anwan, to Lagos to bring the
situation to the attention of the relevant Federal Authorities (Annex N
C-M 152). It shows that the Etubom and
his Chiefs were concerned by the appearance of Cameroonian soldiers and
police and the threat that this
constituted to their people, their society, their culture and their alle
giances.
3.104 The correspondence further shows that the Obong and Etuboms' rule
was paramount. In the letter dated
1 May 1968 (Annex NC-M 152), the Obong tells his Chiefs in the Bakassi
villages that they should inform the
Cameroonian police that anything done in the villages without the consen
t of the Etubom is null and void.
3.105 On 28 December 1973 the South-Eastern State Traditional Rulers Edi
ct No. 17 was promulgated
23
(Annex NC-M 153). 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 Village Heads were restricted in
the performance of their traditional functions. The village groups liste
d under the Efik Clan in Calabar
Division include Archibong. Under Oron Division it reveals the following
Bakassi villages in the "Fishing
Settlements with no Common Name" Village Group in Effiat Clan:
Abana Ntuen
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Akpa Nkaya
Onosi
Ine Ekpo
Ine Ekoi.
It also reveals the following Bakassi villages in the Ntekim Village Gro
up:
Ine Odiong
Edem Abasi
Ine Ibekwe Atabong [East Atabong]
Ine Atabong [West Atabong]
Ine Akpak
Ine Atayo.
3.106 Cross River State promulgated the Traditional Rulers Law in 1978 (Cross River State Edict No.14 of
1978) which included Archibong within the Efik Clan of Calabar Municipa
lity. The Efik Clan included the
following villages in Bakassi:
25
Ine Nkan Okure No. 1
Ine Nkan Okure No. 2
Ine Utan
Ine Utan Asuquo
Ine Ikang
Ine Akpa Ikang
Ine Efiom
Ine Ukpono
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Ine Ekoi.
3.107 Under this legislation of 1978 the Local Government Clans, Village
s (Variation) Order of July 1983 was
made (Annex NC-M 155) designating various local government clans.
3.108 The Order provides as follows:
"I, Schedule 1 of the Traditional Rulers Law, 1978 is hereby varied in r
espect of
the Local Governments named below by adding in columns (1) and (2) a
s regards
the Local Governments and Clans named below the following new items:
Variation of Schedule 1 to the Traditional Rulers Law, 1978 (Edict No.
14 of
1978)
ORON LOCAL GOVERNMENT
Clan Villages
Atabong Ikot Ema Antie
Ikot Iquo
Ikot Itabinya
Ikot Odiong
Ikot Osukpon
Ikot Etim Ntung
Ikot Antal Oko
Ikot Okokon
Ikot Ema Andem Inyang
Ikot Ema Andem Ema
Ikot Ekpenyong
Itung Fishing (Settlement)
Aqua Ine Itung
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Ikot Antai Okon
Ibiong Utan Itung
Ufot Ine Itung
Aqua Ine Ibekwe
Ibiong Utan Ibekwe
Ishie"
3.109 In 1990 the State of Akwa Ibom adopted the Traditional Rulers Edic
t (the relevant pages of which are
contained in Annex NC-M 156), which made provision for the establishmen
t in each local government area of
a traditional council to act as an advisory body on the customs and trad
itions of the local government area.
3.110 The Schedule to the Edict lists the villages designated for the pu
rposes of the Edict as follows:
"Section 4
NAMES OF VILLAGES IN MBO LOCAL GOVERNMENT AREA
Local Government Area of Authority Headquarters
MBO Clans/Villages ENWANG
.....
EFFIAT VILLAGES IN BAKASSI
Aya (Inua Abasi)
Abana Ntuen
Onosi
Akpa Nkanya
Ini Adiong
Ine Inua Abasi
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Ibuot Efe
Ine Ekoi
Ine Iyoso
.....
OKOBO ATABONG VILLAGES OKOPEDI IN BAKASSI
Itung Fishing Settlement
Aqua Ine Itung
Ibiong Utan Itung
Aqua Ine Ibekwe
Ufot Ine Itung
Ibiono Utan Ibekwe
Ishie"
3.111 The Cross River State Clans Creation Edict (No. 1 of 1996) (Ann
ex NC-M 157) created clans in villages
in the Akpabuyo L.G.A. including the following villages in the Bakassi r
egion:
Ikang Clan: Ine Ukpong
Ine Effiom
Ine Akpa Ikang
Ine Ikang
Ine Utan Asuquo
Ine Utan
Ine Nkan Okure I
Ine Nkan Okure II
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Archibong Clan: Archibong Town
Akwa Clan: Akwa Town
Nwanyo Otto
Mbenmong Ikot Ekanim Esin
Abana Clan: Abana Ntuen
Akpa Nkanya
Onosi
Ine Ekoi
Ine Mba
Ine Effiom
Odiong Clan: Edem Abasi
3.112 The appointment and official recognition in legislation of Village
Heads within the Efik Clans confirms
the existence of the authority of the traditional rulers in Bakassi. The
pertinent official lists such as The
Traditional Rulers Register (Odukpani Local Government) and the list o
f recognized Names of Clans, Villages
and Village Heads contain an impressive number of Bakassi villages (Ann
ex NR 16).
3.113 The Cameroon Reply fails to provide any contradiction of the evidence produced by Nigeria
in the
Counter-Memorial on the role of the traditional rulers in the administration of the Baka
ssi region. In this
context it is to be emphasised that at no stage have the traditional rul
ers recognised any claims to sovereignty
made on behalf of Cameroon.
3.114 In conclusion on the role of the traditional rulers, two points mu
st be stressed. The first is the ongoing
character of the exercise of power and influence by the traditional auth
orities. The fishing villages of Bakassi
are grouped under the aegis of six Clan Heads. Further information on th
e Clan Heads will be found in
Appendix. The second point is that the Clan is an aspect of an active mo
de of social organization and is not a
mere ethnological and academic concept.
(xvi) Jurisdiction of Customary Law Courts
The location of places mentioned in this Section is shown on Fig. 3.10.
3.115 Modern legislation in Nigeria has maintained and regulated the cus
tomary law courts. As early as 17
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June 1941, the Effiat-Mbo Native Court issued a warrant for the Effiat-M
bo (Oron Clan) Court, which
included within its jurisdiction the Bakassi village of Abana (Annex NC
-M 141).
3.116 As mentioned in Chapter 2 the Customary Court of Effiat-Mbo, sitti
ng in Jamestown, heard cases
involving parties from Bakassi villages in respect of land on Bakassi in
the years before Independence. Cases
involving parties from Ine Odiong and Ine Atayo were heard in March 1956
: see Annex NR 10. In June 1958
the same Court was hearing a case between Chief Etim Oron Ntuen of Abana
and the Ekpe Society of Abana
Village: see the Court records in Annex NR 11. In September 1963 the Cou
rt heard a case involving assault
and battery in which the respondent was a resident of Ine Atayo, a villa
ge in the south-eastern corner of
Bakassi: see the Court records in Annex NR 17.
3.117 Within this framework, courts were also established by virtue of t
he South-Eastern State Customary
26
Courts Edict of 1969. By means of a Warrant dated 29 October 1970 (Annex NC-M 158) the Effi
at-Mbo
District Court was created replacing the Native Court, with jurisdiction
in the area comprising the villages set
out in the Schedule thereto. This included the Bakassi village of Abana
Ntuen.
3.118 In the period immediately after Independence the Akpabuyo Native C
ourt continued to deal with civil
claims involving residents of Bakassi villages, including Ine Ekoi and K
oloni Fishing Port (Annex NR 18).
3.119 Criminal cases from Bakassi were heard in the District Court (Gra
de A) of Akpabuyo, including cases
involving parties from Nkan Okure (1966) and Ine German, now called In
e Akpa Ikang (1968) (Annex NR
19). The District Court at the relevant time formed part of the Customa
ry Court of Eastern Nigeria.
(xvii) Regulation of Land Use
3.120 The Government of Akwa Ibom State regulates land use in the southe
rn part of the Bakassi Peninsula by
virtue of the Land Use Decree, 1978. In this context a Certificate of Oc
cupancy was issued to the Ministry of
Defence in 1993 in respect of a military camp situated in Mbo Local Gove
rnment Area at Atabong (known as
Isaac Boro Military Camp): see Annex NR 20.
3.121 A similar Certificate of Occupancy was issued by Akwa Ibom State t
o the Ministry of Defence in 1994
in respect of the army camp at Abana Ntuen: see Annex NR 21.
(xviii) The Settlement of Nationals of the Claimant State
3.122 As Nigeria has stated in the Counter-Memorial, in the formulation of title by a process of historical
consolidation there can be no doubt that the existence of long-establish
ed settlements of the nationals of the
claimant state plays a significant role. It is helpful in this respect t
o recall the views of Sir Gerald Fitzmaurice
expressed in 1957:
"The element of racial or national affinity between the population of th
e claimant
State and the inhabitants of the territory claimed, can never in itself
be a legal
ground of title. As with historical factors, it might assist in supporti
ng a claim
based on other grounds, or as an evidential factor - for instance it mig
ht assist in
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showing that certain acts were carried out animo occupandi with the intention of
asserting sovereignty. But, especially, if the territory is, or has pass
ed into the
effective control of another State, affinities of race or country can ne
ver be a
substitute for effective control, or for continuity, or in themselves gi
ve title.
Different considerations arise where it is not merely a question of raci
al or
national affinity, but of actual nationals of the claimant State, for, i
f settlers in a
territory have a certain nationality, that may be an element (though no
t
necessarily a conclusive one) in showing the existence of effective control by their
parent State."27 (emphasis added)
3.123 The settlement of nationals has been treated as relevant in the ju
risprudence of international tribunals.
The relevant material is set forth in the Counter-Memorial, pages 234-37, paragraphs 10.50-10.55.
3.124 The Government of Cameroon has not advanced any evidence to sugges
t that the region is inhabited by
nationals of Cameroon, whereas Nigeria has shown in its Counter-Memorial and sets out in this Rejoinder
overwhelming evidence that Bakassi is inhabited by Nigerians.
(xix) Local Voluntary Associations
3.125 There is evidence of the existence and activities of typical local
voluntary associations in the Bakassi
region. Thus the Ntakaba Fishermen Association, based in Archibong (in
Bakassi) promulgated a loan scheme
in 1980 and a list is available of the individuals who collected loans f
rom the Association in 1980 and 1981
(Annex NR 22). A similar group, based in Archibong, was operating a lo
an scheme in 1982. There was also
the Archibong Women Co-operative Society which was active in 1989 (Anne
x NR 23). Other examples of the
activities of local Co-operative Societies and Loan Schemes appeared at
Annexes NC-M 65 and NC-M 66.
3.126 This evidence reflects the bonds of social and political attachmen
t of the villages in Bakassi and the
larger community of Nigerians. Such associations were formed by Nigerian
s and this evidence represents a
natural consequence of the existence of long-established communities of
Nigerian nationals with the
concomitant national outlook.
(xx) The Exercise of Military Jurisdiction
3.127 The manifestation of sovereign authority may take the form of the
exercise of military jurisdiction, as
part of a generalised system for maintaining public order. Such evidence
was regarded as in principle
admissible by the Chamber in the Land, Island and Maritime Frontier Dispute. 28
3.128 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 Nigerian civil war. M
ajor Isaac Adaka Boro was a
military commander in 3 Marine Commando (of the Nigerian Army) who gai
ned fame for his exploits fighting
against the rebel Biafran forces in the riverine areas of Calabar Divisi
on. In March 1968 he led his men,
known as the "Seas School Boys", up the Cross River estuary and liberate
d Atabong, Abana and Ikang from
rebel hands. He set up the army camp on Bakassi which still bears his na
me. He died in action in May 1968.
These details are based on information available to the Government of Ni
geria. Furthermore, the Nigerian
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Navy also have a base, situated at Jamestown on the mainland, from where
regular patrols are sent out to
patrol the creeks and shores of the Bakassi Peninsula.
3.129 In terms of the assertions of Cameroon, in 1981 and in subsequent
years, Nigerian forces were patrolling
the Bakassi region on a regular basis. The Government of Cameroon has re
ferred to the existence of the
Nigerian patrols in a series of documents, as follows:
(1) Note dated 9 February 1981; Annex MC 257.
(2) Note dated 16 April 1981; Annex MC 258.
(3) Note dated 15 March 1984; Cameroon Memorial page 577, paragraph 6.
56.
(4) Message dated 2 December 1985; Annex MC 277.
(5) Documents relating to an Incident taking place in March 1990; Anne
xes MC 296, MC 297, MC 299 to MC
302.
(6) Message dated 29 September 1990; Annex MC 304.
3.130 Contemporary records and incident reports prepared by the Nigerian
Navy indicate that routine patrols
took place and were involved in the maintenance of public order and nati
onal security. The types of operation
are evident from the following examples:
(1) The arrest of three Cameroonian security personnel and a civilian
boat driver at Abana in March 1990: see
Annex NR 24.
(2) The arrest of smugglers within the Calabar channel in December 199
9: see Annex NR 25.
(3) The arrest of an unlicensed fishing trawler in the Calabar Estuary
in January 2000: see Annex NR 26.
(4) The arrest of an unlicensed fishing trawler off Akpa Ikang in Marc
h 2000: see Annex NR 27.
(5) The rescue of forty-two passengers from a vessel which foundered a
nd eventually sank off Abana in July
2000: see Annex NR 28.
(xxi) The Enhancement of Public Order within the Bakassi Region by Nig
erian Security Forces in December
1993
3.131 The Government of Nigeria has already affirmed that there has alwa
ys been a Nigerian military
presence on the Bakassi Peninsula. In addition, the Nigerian Navy has a
base at Jamestown, on the mainland,
from which patrols are sent to the creeks and coasts of the Bakassi Peni
nsula.
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3.132 In spite of the presence of Nigerian forces, incursions by Cameroo
nian agents occurred from time to
time which went undetected because of the relatively remote character of
the region and the cover provided by
the mangrove swamps and creeks. These incursions were the subject of rep
eated complaint by the Nigerian
communities. By 1993 a further threat to public order had emerged in the
form of territorial rivalry between
two Nigerian States in respect of the Bakassi Peninsula.
3.133 On 31 December 1993 the Government of Nigeria sent security forces
to the Nigerian fishing villages of
Abana and Atabong on the Bakassi Peninsula. The purpose of this operatio
n was described in the letter dated 4
March 1994 from the Nigerian Government to the President of the Security
Council, thus:-
"I wish, on the instructions of my Government to refer to the letter dat
ed 28
February 1994, addressed to you by the Permanent Representative of Camer
oon
(S/1994/228), and to convey to you the following information.
On 31 December 1993, Nigerian troops were dispatched to the Nigerian fis
hing
villages of Abana and Atabong on the Nigerian Bakassi Peninsula in order
to
avert a violent clash between those who lay claim to the settlements fro
m two
Nigerian States, namely the Akwa Ibom State and the Cross River State. T
he pre-
emptive action had the desired effect. However, following the concern ex
pressed
by the Cameroonian Government on the Nigerian troops' movement, I visite
d
Yaoundé on the instructions of my Head of State, Gen. Sani Abacha, to
explain to
President Paul Biya the reason for the Nigerian move. Early in 1994, the
Cameroonian Foreign Minister also visited Abuja with a message to the Ni
gerian
Head of State from President Biya. Both sides pledged to resolve the iss
ues
peacefully" (Annex NC-M 347).
3.134 The same concern was expressed in a letter dated 20 April 1994 fro
m the Nigerian High Commission in
London to the Foreign and Commonwealth Office and to all the diplomatic
missions accredited to the Court of
St. James and to all international organizations with headquarters in Lo
ndon (Annex NR 29; also Annex NPO
80).
3.135 The background to these statements of a special security problem i
s provided by the internal rivalry
between two States of the Federal Republic of Nigeria in respect of the
Bakassi Peninsula. This aspect of the
matter is examined more fully below, Section (p) paragraphs 3.246-3.24
9.
3.136 However, there was another significant source of concern lying beh
ind the measures taken. The Clan
Chiefs of the groups of villages in the Bakassi Peninsula confirm that d
uring and after the civil war, from 1970
onward, the Cameroon gendarmes (armed police) consistently carried out acts of harassment in the Bak
assi
region. The particulars of those acts of harassment are set forth in the
Nigerian Counter-Memorial, pp. 267-9,
paragraphs 10.157-10.161.
3.137 This harassment continued episodically until 1993. In a Note dated
26 April 1993 the Government of
Nigeria protested in the following terms:
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"The Embassy of the Federal Republic of Nigeria presents its compliments
to the
Ministry of External Relations of the Republic of Cameroon and has the h
onour
to bring to the attention of the esteemed Ministry, reports received tha
t
Cameroonian Gendarmes have been harassing Nigerian citizens living in th
e
disputed areas of Bakassi Peninsula. On the 26th February, 1993 at Abana
in Mbo
Local Government Area of Akwa Ibom State, about one hundred gendarmes
invaded the Fishing settlements in the area and harassed and terrorised
the
Nigerian inhabitants. The Embassy wishes to point out that these incessa
nt
harassments do not augur well for our bilateral relations and will like
the Ministry
to call the relevant host government law enforcement agents to order. Th
is matter
is creating great anxiety and concern in Nigeria and the Embassy will th
erefore
want the Ministry to take necessary steps to arrest the situation for th
e mutual
benefits of both countries." (Annex NC-M 356)
3.138 This pattern of harassment and the atrocities committed by Cameroo
nian gendarmes and soldiers were
the subject of complaint in the letter of the Nigerian Government to the
President of the Security Council
dated 4 March 1994 (Annex NC-M 347). This letter refers to six serious
recorded incidents in 1991, six in
1992, and thirteen up to September 1993. References to acts of harassmen
t, plunder and murder also appear in
the letter dated 20 April 1994 from the Nigerian High Commission in Lond
on (see paragraph 3.133 above and
Annex NR 29).
3.139 The pattern of repression which developed after the end of the Nig
erian civil war can be understood by
reference to the Report presented to the Governor of Cross River State d
ated 15 April 1988 (Annex NR 30).
Entitled 'Report of Persistent Molestations and Intimidation of Atabong
People by Cameroun Gendarmes', the
document includes the following passages:
"1. ... During Nigerian Civil War, the 3rd Marine Command Division led b
y
Brigadier Benjamin Adekunle established a Military base at Atabong
Commanded by the late Major Isaac Adaka Boro and Cameroun Gendarmes
dared not trespass into Nigerian territory. After the withdrawal of Majo
r Boro and
his men from Atabong on the 10 March, 1968, Cameroun Gendarmes arrived
Atabong on the 19 thMarch, 1988. Since then Atabong people and indeed the
entire residents of Bakassi Peninsula have had no peace.
2. [......]
3. ECONOMIC BLOCKAGE: Cameroun Gendarmes are now forcing indigenes
of Atabong, Abana, Edem Abasi, Ine Odiong, Ine Atayo and Ine Akpak, all
residents of Bakassi Peninsula to stop coming to Nigeria to sell their f
ish, crayfish
and shrimps but rather to take them to the Cameroun and sell thereby
strangulating Nigeria economically. They also do everything possible to
intimidate our people from trading with our legal tender, the naira note
s in
preference to the CFA Franc. They even go to the extent of seizing naira
notes
from our people and burning them in fire. All these actions of Cameroun
Gendarmes amount to economic blockade and strangulation, hence the scarc
ity of
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fish and crayfish in our markets.
[......]
5. MOLESTATIONS, BEATINGS, RAPINGS AND KILLINGS: Cameroun
Gedarmes have a field day molesting, beating, raping and killing our peo
ple. One
Mr. Etim Andem Okon of Atabong was beaten to death by Cameroun Gendarmes
in 1969. On 16th January, 1973, one Mr. Mbuk Sereke was beaten to the po
int of
death by Cameroun Gendarmes and was unconscious for three days. Recently
,
one Mr. Etim Effiong Ekop was severely beaten by Cameroun Gendarmes to t
he
point of death. As at the time of writing this report, Mr. Etim Effiong
Ekop was in
a state of coma. Five Nigerian soldiers were brutally murdered by Camero
un
Gendarmes in the same area. Two fishermen were cold-bloodedly murdered i
n
that same area by Cameroun Gendarmes.
We, the people of the area, have consistently protested vehemently again
st
Cameroun atrocities and vandalism to the Federal Government of Nigeria.
6. CONCLUSION: Nigerians in Bakassi Peninsula and indeed the Atabongs ha
ve
suffered untold hardship in the hands of Cameroun Gendarmes and the hard
ship is
weighing very heavily on us. We do not want to be governed by the repres
sive
and despotic Cameroun Government which rules with high-handedness. There
is
absolutely no freedom of speech, freedom of expression, freedom of assoc
iation
nor freedom of movement which we enjoy in Nigeria. We are therefore appe
aling
to you, Sir, to prevail on the President and the Armed Forces Ruling Cou
ncil to
intervene and redeem us from these Cameroun vandals."
3.140 This Report is in fact an appeal to the Governor of Cross River St
ate from the traditional leader of the
community, Chief Okon Etim Okon Asuquo, a member of the Council of Etubo
ms in Calabar, and head of the
Atai Ema clan of West Atabong. The initiatives taken by the Nigerian for
ces in 1993 were a response to such
appeals. Petitions from communities on Bakassi have been made on various
occasions since May 1968: see
Annex NC-M 205 (Petition addressed to the Federal Ministry of External
Affairs of Nigeria). Thus in 1973 the
Etuboms' Council in Calabar protested against Cameroonian intrusions in
a "Protest notice against the forceful
ejectment by the Cameroons Government of Nigerians of Efik origin from l
and formerly the jurisdiction of the
Obong of Calabar now by law territory of the Federation of Nigeria": see
Annex NC-M 211.
3.141 It is relevant to remind the Court that Nigerian police and securi
ty forces had been involved on various
occasions since Independence in the maintenance of public order in Bakas
si: (see NC-M paragraph 10.59 et
seq. and paragraph 25.8 et seq.). It has been necessary for the Nigerian armed forces to respond, on the
basis
of self-defence, to incursions by Cameroon armed forces. This has been r
ecognised by the Cameroon
Government, for example, in its internal information bulletin in relatio
n to incidents in 1984 (see Annex MC
269, p. 2223). Internal Cameroonian documents also refer to the presenc
e of Nigerian marines at Abana in
1990 and in 1993 (see Annex MC 332).
(xxii) Acts of Administration by Nigeria after Independence in 1960
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(a) The Evidential Sources
3.142 A major component in the process of historical consolidation is th
e evidence of peaceful possession and
29
administration, consisting of acts involving "a manifestation of soverei
gnty" in respect of the Bakassi
Peninsula (cf. Minquiers and Ecrehos case), or "acts of such a character that they can be considered a
30
manifestation of State authority" in respect of Bakassi.
3.143 In the Judgment of the Chamber in the Land, Island and Maritime Frontier Dispute case, there is
repeated reference to the requirement of "effective administration." 31
3.144 The various types of evidence of administration by Nigeria will be
reviewed in the sections following.
The headquarters of the relevant Local Government Areas are as follows:
Ikot Nakanda (Akpabuyo L.G.A.),
Okopedi (Okobo L.G.A) and Enwang (Mbo L.G.A.). Bakassi L.G.A. was cr
eated in 1996 (see above
paragraph 3.97): its headquarters is at Abana
(b) The Maintenance of Public Order: the Investigation of Crime and th
e Exercise of Criminal Jurisdiction
3.145 Occupying a leading position in any chronicle of "acts of such a c
haracter that they can be considered a
manifestation of state authority" are the maintenance of public order an
d the investigation of crime. In this
context it may be recalled that in the Rann of Kutch Arbitration account was taken of the exercise of police
and criminal jurisdiction.32
3.146 The relevant evidence includes the exercise of jurisdiction by Cus
tomary Law Courts acting by virtue of
Nigerian legislation. This aspect has been examined above in paragraphs
3.115-3.119.
3.147 The documents available provide evidence of the following acts of
law enforcement by Nigerian police
officials in the Bakassi region:
(1) In 1963 a Nigerian police launch intercepted a Cameroon government
launch in the territorial waters of
Nigeria near Abana. This incident, on 16 November 1963, was the subject
(along with other similar incidents)
of a Nigerian protest dated 1 April 1964 (Annex NC-M 159).
(2) On 29 October 1965 a Nigerian police officer arrested members of a
Mobil Oil survey team in the delta of
the Cross River. The relevant Cameroon Note (dated 22 November 1965) r
eserves the position of the
Cameroon Government but no protest is made (Annex NC-M 160).
(3) In 1970 Nigerian officials were sent to the village of Eket to inv
estigate a murder case. The intervention of
Cameroon officials at Atabong prompted a Nigerian protest in the followi
ng terms:
"The Embassy of the Federal Republic of Nigeria presents its compliments
to the
Ministry of Foreign Affairs of the Federal Republic of Cameroon and has
the
honour to bring the following to the attention of the latter.
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On the 28 of May, 1970, two Nigerian Police Constables, Edem Asanga No.
114302 and Okon Willie No. 122304 were arrested by the Cameroon authorit
ies
at ATABONG, a fishing village while on their way to EKET to investigate
a
murder case.
The Embassy would be grateful if the Ministry would be good enough to ca
use
the immediate release of these men who were on official duty.
The Embassy of the Federal Republic of Nigeria avails itself of this opp
ortunity
to renew to the Ministry of Foreign Affairs of the Federal Republic of C
ameroon
the assurances of its highest consideration." (Annex NC-M 161)
(4) The two Nigerian detective constables involved were employed by th
e State Criminal Investigation
Department at Calabar. The relevant report, dated 17 June 1970, prepared
by the Nigerian police officers,
includes the following passages.
"We, Nos. 11431 Detective constable Edem Asanga and 12234 Detective
constable Okon Willie are of the State Criminal Investigation Department
,
Calabar, South Eastern State of Nigeria. There was a petition from one O
kon
Ononoedi Etto against Eket Police alleging of the bad handling of a murd
er case
which his late brother Sunday Ononoedi Etto was the victim. Therefore, w
e from
the State C.I.D., Calabar were scheduled to take up the investigation.
2. The petitioner alleged that some people from Ntak Inyang, Eket, fishi
ng at Ine
Odiong murdered his brother Sunday Ononoedi Etto their co-fisherman and
buried the corpse in the mud. We left Calabar on the 18th May, 1970 to I
ne
Odiong on investigation. On our way we called at Eket Police Station and
at
Etebi, Eket the village of the deceased. In order to allay suspicion as
to the
condition of the corpse during exhumation, at Etebi and Ntak Inyang we c
ollected
some of the deceased's relatives and the suspects and proceeded to Ine O
diong in
two canoes.
3. We arrived Ine Odiong on 22nd May, 1970. After necessary enquiries, o
n 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 there was a statement to 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 so
ldiers
and Navy at Edem Abasi water near to Atabong Fishing Port ...
[...........]
6. We have put in over 12 years in the Nigeria Police Force and have inv
estigated
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cases in Abana, Atabong, Ibekwe, Akpa Nkanya, Ine Odiong Fishing Ports e
tc.
We had also done tax assessment and tax drive in these areas before the
war, but
there had never been any interruption by the Cameroon. We are very much
embarrassed about this incident." (emphasis added) (Annex NC-M 162).
3.148 The final paragraph of this report provides clear evidence of the
existence of a status quo, subsisting (in
the experience of the two witnesses) for twelve years and more, involvi
ng the maintenance of law and order in
the Bakassi region by Nigerian police officers. Prior to this incident t
his peaceful state of affairs had not been
interrupted by Cameroon.
3.149 The crime rate on Bakassi is not high, but the following incident
reports appear in the Police Crime
Diary held at the police station in Ikang and were investigated by the p
olice from that police station (the
location of the incidents is shown on the map at Fig. 3.11):
(1) On 27 April 1984 there was a complaint of a case of grievous bodil
y harm from the Colony Fishing Port
[also known as Koloni Fishing Port] of Akpabuyo. (Annex NR 31)
(2) On 24 March 1986, there was a complaint by Nickson MacLean that Ch
ief Iyabo Agagbelewi had obtained
money under false pretences in Inua Mba, Bakassi. (Annex NC-M 163)
(3) On 24 September 1991, Effiong Edet from Abana complained that a pe
rson had gone missing. (Annex NC-
M 163)
(4) Also on 24 September 1991, Effiong Okon Ayakang from Nwanyo on Bak
assi complained that Etim Oto
Nwayang, also of Nwanyo, stole 3,600 Naira in cash, a fishing net worth
3,200 Naira and three paddles all
valued at 50 Naira. (Annex NC-M 163)
(5) A complaint on 9 December 1991 by Joseph Okon Ima of assault occas
ioning harm at Ine Ekoi. (Annex
NR 32)
(6) On 21 February 1993, Chief Ita Okon Ekpenyong from Abana complaine
d that Odiong Inyang, also from
Abana, had threatened violence against him, and assaulted him. (Annex N
C-M 163)
(7) On 20 June 1994, Laurence Obiene Wiehne of Koloni Fishing Port com
plained that Juliana Anthony John
stole a wrist watch valued at 700 naira. (Annex NC-M 163)
(8) On 18 October 1993 Etim Eyo Ekpo of Ine Unya Fishing Port in Akpab
uyo L.G.A. complained of theft by
various named individuals from the same village at Ikang Market Beach. (
Annex NR 33)
(9) On 28 September 1994, Ime Johnson Jimmy of Iso Ikot Ama Owo near A
bana on Bakassi complained that
Samuel Jackson of the same address had committed a negligent act. (Anne
x NC-M 163)
3.150 These incidents show that the Nigerian police based at Ikang polic
e station were responsible for law and
order throughout the Bakassi Peninsula over a long period of time. A rep
ort dated 28 December 1992 on the
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investigation by Ikot Nakanda police into the possibility of arson being
the cause of a fire incident at Abana is
at Annex NR 34. In 1994 a police station was established at Abana with t
he approval of the Head of State.
(Annex NC-M 164)
3.151 The Magistrates Court at Ikot Nakanda, presently within the Akpabu
yo Local Government Area, heard
criminal cases from various Bakassi villages, including Mbenmong, Inua M
ba and Abana Fishing Port.
Records available relate to the period 1981 to 1983: see Annex NR 35.
3.152 In 1995 Akpabuyo Local Government (Cross River State) was concer
ned to restrain threats to public
order arising from a chieftancy dispute affecting Archibong Town and nei
ghbouring villages: see the letter of
the Chairman dated 23 August 1995: (Annex NR 36).
3.153 The Government of Cameroon is unable to produce any reliable evide
nce concerning the administration
of justice in the Bakassi region. This is clear from a perusal of the Memorial, pages 490 to 496 and the Reply,
pages 307 to 312. No fact is alleged and no document invoked to prove th
e existence of a system of criminal
justice.
3.154 In respect of the existence of a police presence, the Memorial confines itself to some general assertions
as follows:
"Il en existe, conformément au régime du déploiement des servic
es publics, et
plus précisément des services de sécurité sur le territoire
camerounais, au chef-
lieu du département (Mudemba) et aux chef-lieux des arrondissements
(Bamuso,
Idabato, Ekondo Titi, Mundemba, Kombo Itindi). Au niveau des districts,
comme
celui d'Idabato, il existe seulement une unité de gendarmerie." 33 (Memorial, p.
493, paragraph 4.444)
3.155 In the list of names only West Atabong (named Idabato) refers to
a village in Bakassi. No dates are
indicated and no document cited.
3.156 The Reply of Cameroon makes no reference to the administration of justice or the
presence of police in
the Bakassi region: cf. Reply, pages 307-12.
(c) The Exercise of Civil Jurisdiction
3.157 It has already been pointed out that civil cases were heard by the
customary courts: see above,
paragraphs 3.115-3.119. Civil suits were also heard by the District Cour
t at Ikang. Cases were heard from the
following villages in Bakassi: Clear Heart Fishing Port (1970), Ine Ek
oi (1970), Inua Mba (1970) Nkan Okure
(1970), Ine German/Ine Akpa Ikang (1971), Ine Ekoi (1971), Koloni
Fishing Port (1974), Ine Ekpo and Ine
Ntakaba (1975), Nkan Okure (1977), Ine German/Ine Akpa Ikang (1979)
, Ine Nwayo (1982), Abana Fishing
Port (1982), Nkan Okure (1983), Nkan Okure (1983), Ine Akpa Ikang
(1983), Ine Akpa Ikang (1984), Ine
Akpa Ikang (1991), Ine Ekpo (1992) (See Annexes NR 37 to NR 57 and
Fig. 3.12).
3.158 The pleadings of Cameroon provide no precise evidence of the exerc
ise of civil jurisdiction in the
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Bakassi region. The relevant paragraphs in the Memorial (paragraphs 4.450 and 4.451) do not cite any
documents to support the assertions made. The Reply, pages 307 to 312, makes no claims relating to the
exercise of civil jurisdiction. The text of the Memorial (paragraph 4.451) refers to a Customary Court sited in
Mundemba, which is not located in the Bakassi region. No evidence is giv
en to indicate that this Court
actually exercised jurisdiction over any part of Bakassi or its resident
s.
(d) The Granting of Letters of Administration to Applicants in Respect
of the Property of Deceased Persons
3.159 The High Court of the South-Eastern State of Nigeria had the juris
diction to grant letters of
administration to applicants in respect of the property of deceased pers
ons who were residents of the Bakassi
region. Such a grant was given in the case of Miss Margaret Etim Ekpo, '
late of Archibong Town' on 2
September 1975: see Annex NR 58.
(e) Taxation
The location of places mentioned in this Section is shown onFig. 3.13
3.160 Of particular evidential value is the collection of tax from resid
ents of the Bakassi Peninsula by Cross
River State of Nigeria (Calabar Tax Division) and Mbo Local Government
(Akwa Ibom State). The evidence
takes the form of the Nominal Roll of tax payers who paid their taxes in
Akpabuyo Tax District in Calabar
Tax Division of South-Eastern State. Copies of this information (both i
n manuscript and in typescript) and a
selection of related individual tax receipts, relating to the fiscal yea
r 1967-68, can be found at Annexes NC-M
165 and NC-M 166. The evidence was provided by the Office of the Governo
r of Cross River State.
3.161 The Bakassi villages involved are as follows:
Akwa Town
Archibong Town
Mben Mong
Nwanyo
Atabong
Abana
3.162 Evidence in the form of the Internal Revenue Stock and Distributio
n Register (Eastern Nigeria)
establishes that, in the fiscal year 1969-70, income tax was being colle
cted in Abana village on the Bakassi
Peninsula (Annex NC-M 169 and Annex NR 59).
3.163 The taxable Population register for Effiat Mbo Clan in Oron LGA (
within Akwa Ibom State) for the
year 1987 includes the Bakassi villages of Ine Ekpo, Abana, Ine Atayo, I
ne Akpak and Ine Odiong (Annex NR
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60).
3.164 There can be no doubt that the imposition of taxes is recognised b
y tribunals as evidence of sovereignty.
This Court accepted evidence of the imposition of local and other taxes
as evidence of title in the Minquiers
34
and Ecrehos case. Evidence of taxation was regarded as admissible by the Court in its Adv
isory Opinion
concerning Western Sahara, 35 and also by the Court of Arbitration in the Rann of Kutch case. 36
3.165 The evidence available indicates that the inhabitants of the Bakas
si region habitually paid taxes to the
Nigerian authorities of the Cross River State. This appears from the fol
lowing contemporary report of an
attempt by officials of Cameroon to collect taxes from residents of Arch
ibong and Akwa. The report,
addressed to Force Headquarters in Lagos, and dated 28 September 1984 re
ads, in material part, as follows:
"NIGERIAN/CAMEROON BORDER
I wish to bring the following incident to your notice for urgent attenti
on.
2. On the 26th of September, 1984 at 1500 hours, seven persons of Archib
ong and
Akwa villages in Odukpani Local Government Area of Cross River State rep
orted
to the Police at Ikang with a document addressed to each of them by a
Cameroonian Divisional Officer stationed at Isangele. A photo-copy of th
e said
document is attached. These villages are just eight kilometres from Ikan
g town.
From their names "Archibong" and "Akwa" which are Nigerians, I have the
feeling that the villages are part of Nigeria. In nutshell, the content
of the
document is an official invitation by the Cameroon government official.
3. The seven Nigerians who are recipients of this invitation are law abi
ding
citizens and ordinarily reside in these villages. They have nothing to d
o
whatsoever with the administration of the Cameroon government. It is haz
ard
however that the invitation of the Nigerians to Isangele may be for the
payment of
taxes. But I will want it known that hitherto, these Nigerians pay their
taxes to
Nigeria authority. The villagers expressed surprise and fear at the invi
tation and
regard it as a calculated attempt by Cameroon government to extend its i
nfluence
and control over the area.
4. Although I am not detailed in the geographical boundary data of the a
rea, but I
am of the view that the presence of the Cameroon officials in these vill
ages
violates our territorial integrity. " (Annex NR 61)
3.166 This report was signed by the Commissioner of Police, Cross River
State.
3.167 In spite of a degree of interference from Cameroon officials, the
authorities of Cross River State have
continued to exercise the power of taxation in the Bakassi region on a r
outine basis. Tax was collected by
Cross River State and Akpabuyo LGA between 1989 and 1994: see the receip
ts ("Minimum Income Tax
Tickets" and "General Rate Tickets") relating to Abana in Annex NR 62 f
or example.
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3.168 The Effiat-Mbo Local Government Area imposed taxes on Bakassi vill
ages through its Brama Task
Force: see the Register for General Rate Tickets issued in 1990, Annex N
R 63.
3.169 Recent information from the six Clan Heads having authority in the
Bakassi villages confirms that the
villagers originally paid taxes to Akpabuyo LGA, Mbo LGA and Okobo LGA.
Since 1996, they have all paid
to the Bakassi LGA - see Appendix.
3.170 The Cameroon Government accepts that the power to levy taxes is on
e of the most significant
manifestations of title to territory: Memorial, page 493, paragraph 4.446. In support of its assertion that this
power had been exercised in the Bakassi region only two documents are pr
oduced. The first is a Poll Tax Roll
for the fiscal year 1981-82. In the text of the Memorial (page 494, paragraph 4.448) this document (at Annex
MC 255) is used as the basis for the following assertion:
"Le rôle des impôts collectés dans diverses pêcheries, notam
ment celles d'Idabato
I, Idabato II, Jabane I, Jabane II, Naumsi Wan, Kombo a Mpungu, Forisane
,
Kombo a Ngonja, Kombo a Monjo, Kombo a Jane, Ine Akarika, Kombo a Kiase,
Kombo Abedimo, Kombo a Billa, s'élevaient, pour l'exercice budgéta
ire 1980-
1982 à 9,450,000 FCFA." 37
3.171 Two points stand out. In the first place, no evidence is provided
relating to the period 1960 to 1980.
And, secondly, only five of the villages specified have been identified
by Cameroon as being within the
Bakassi region (Idabato I and II, Jabane I and II and Kombo Abedimo).
3.172 The Cameroon Reply invokes a second document, a list of tax collectors for the commune of
Tiko for
the year 1972-1973: Annex RC 34. The problem with this document is that
none of the villages specified is
located in the Bakassi region.
3.173 In the result there is only one document which refers, at least in
part, to the taxation of villages in
Bakassi, and this relates to a single tax year (1981-82). This does no
t constitute evidence of a consistent
pattern of activity. Moreover, the fragmentary and unreliable evidence o
ffered by Cameroon contrasts with the
evidence of Nigerian tax collection since the 1960s.
3.174 The evidence supports the view that Cameroon efforts to collect ta
xes were episodic, deeply resented by
the inhabitants of Bakassi, and constituted no more than acts of harassm
ent. As the Clan Heads indicated, the
villagers have never paid taxes to Cameroon except in consequence of thr
eats of force.
(f) Census Taking
The location of places mentioned in this Section is shown on Fig. 3.14
3.175 The taking of a census is a classic form of exercising sovereignty
in respect of territory. In its Judgment
in the Minquiers and Ecrehos case the Court took account of the visit of an official census enumerat
or to the
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islets as "a manifestation of sovereignty".8
3.176 There was a population census of Nigeria in 1953, during the perio
d of the trusteeship. This included as
part of Akpabuyo Rural District Council, as the area was then known, wit
hin Calabar Province, the following
villages located on the Bakassi Peninsula:
Ine Akpa Ikang
Ine Ekoi
Ine Nkan Okure
Ine Utan
Ine Utan Asukquo (Annex NC-M 142)
3.177 There was also a population census in Nigeria in 1963, in which th
e Eastern Region phase included a
return for Abana Ntuen within Ibaka Council (Annex NC-M 175).
3.178 In 1991 the National Population Commission visited Abana and made
a report, dated 14 November
1991, to the control centre, Mbo Local Government Area, in which they co
unted the number of buildings in
the village and drew a sketch map (Annex NC-M 176). They also sketched
and delimited a number of
Nigerian villages on Bakassi (Annex NC-M 177). Population Statistics a
vailable from the National Population
Commission are based upon the 1991 Census (Annex NR 64).
3.179 Evidence provided by the Clan Heads exercising authority over the
villages of the Bakassi establishes
that the people took part in the census of 1953 and more recent censuses
- see Appendix.
3.180 The pleadings of the Government by Cameroon contain a reference to
a census conducted in the region
by the Cameroon authorities, but no evidence is supplied: see the Memorial, page 493, paragraph 4.443.
(g) Non-participation of Bakassi Villages in the Plebiscite of 1961
3.181 There is no documentary evidence which indicates that the populati
on of the Bakassi villages took part
in the United Nations plebiscite which decided the future status of the
Southern Cameroons. Reference may be
made to the following official documents (among others):
(1) Report of the United Nations Commissioner for the Supervision of t
he Plebiscites in the Southern and
Northern Parts of the Trust Territory of the Cameroons under United King
dom Administration, Doc. T/1556, 3
April 1961.
(2) Report on the Plebiscite held in the Southern Cameroons on 11th Fe
bruary 1961 (by the Plebiscite
Administrator, H. Childs).
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3.182 There is no single item in these two Reports which indicates that
the plebiscite was held in the villages
of Bakassi. In paragraph 99 of the Report of 3 April 1961 there is a des
cription of the plebiscite district known
as Victoria South West. In the description of this area reference is mad
e to the Bakolle Clan, Bambuka, Bota,
Bimbia and Victoria Village Groups. As Map M9 of the Cameroon Memorial indicates, none of these areas is
sited in the Bakassi peninsula. Map M9 does not show Bambuka, but there
is no such settlement in the Bakassi
region. The tribal affiliations of all these areas are not Efik, unlike
the Bakassi people: see E. Ardener, in
Ardener, Ardener and Warmington, Plantation and Village in the Cameroons, London, 1960, p.272 (and table,
p. 412).
3.183 The Report of 3 April 1961 confirms that there were thirteen polli
ng stations in Victoria South West.
However, there is no evidence of the existence of polling stations in Ba
kassi.
3.184 In addition, there is evidence from the Clan Heads with authority
in respect of the Bakassi villages that
the villages did not participate in the plebiscite - see Appendix.
3.185 The issue of the plebiscite is given prominence in the Cameroon Memorial (paragraphs 3.230-3.239 and
3.35) and it is necessary to keep the question in an appropriate legal
perspective. The plebiscite held on 12
February 1961 in the Southern Cameroons, like other plebiscites, could n
ot affect the alignment of the relevant
boundaries as such: see the Cameroon Memorial, p. 157, paragraph 3.35. Nor could such a plebiscite present a
conclusive impediment to a process of consolidation of title or, if such
a process were beginning, to its
development in the future.
3.186 When the question of the plebiscite is properly related to the dev
elopment of title by consolidation, the
absence of participation in the Bakassi region is consistent with the ov
erall picture of affiliation, political,
social and economic, with the mainland of Nigeria.
(h) Delimitation of Electoral Wards
The location of places mentioned in this Section is shown on Fig. 3.15
3.187 In 1976 the programme for distribution of seats in the Odukpani Lo
cal Government Area included the
following Bakassi villages in Ikang Central Ward, as follows:
1. Ine Nkan Okure No. 1
2. Ine Nkan Okure No. 2
3. Ine Utan
4. Ine Utan Asuquo
5. Ine Ikang
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6. Ine Akpa Ikang
7. Ine Ibuot Owong
8. Ine Efiom
9. Ine Ukpono
10. Ine Ekoi (Annex NR 65).
3.188 The local government elections took place in 1976. Regulations for
the elections referred to the
following primary electoral units sited in Bakassi and forming part of I
kang Central electoral college:
1. Ine Nkan Okure No. 1
2. Ine Nkan Okure No. 2
3. Ine Utan
4. Ine Utan Asuquo
5. Ine Ikang
6. Ine Akpa Ikang
7. Ine Ibuot Owong
8. Ine Efiom
9. Ine Ukpono
10. Ine Ekoi (Annex NR 66).
3.189 In December 1976 the Secretary of the Odukpani Local Government se
nt a list of successful candidates
to the Chief Electoral Officer at Calabar: see Annex NR 67. The list inc
luded the above primary electoral units
comprising villages in Bakassi.
3.190 In 1982 steps were taken for the delimitation of wards within the
Akpabuyo Local Government Area
(Annex NR 68). The relevant documents show that several Bakassi villag
es were included in Ikang Central
Ward, as follows:
Ine Nkan Okure I
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Ine Nkan Okure II
Ine Ekoi
Ine Efiom
Ine Utan Asuquo
Ine Utan
Ine Ikang
3.191 Further action was taken in 1983 by the State Electoral Commission
in Calabar for the purpose of
delimiting the State Constituencies in Akpabuyo LGA into Council Wards i
n accordance with new guidelines:
see Annex NR 69. The following wards, forming part of Ward Akpabuyo III,
are within the Bakassi region:
Ine Nkan Okure No. 1
Ine Nkan Okure No 2
Ine Ukpono
Ine Ekoi
Ine Akpa Ikang
Ine Ikang
Ine Utan
Ine Utan Asuquo
Ine Efiom
3.192 In 1987 the National Electoral Commission commissioned the setting
up of registration centres for the
Odukpani Local Government Area: see Annex NR 70. In Ikang South Ward the
registration units
commissioned included the following villages in Bakassi:
Ine Nkan Okure I & II
Ine Ikang
Ine Ufang Idim
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Ine Akpa Ikang
Ine Efiom
Ine Ukpono
Ine Ekoi
3.193 Under the auspices of the National Electoral Commission Decree 198
7 (Annex NC-M 171), in 1990 the
whole of Nigeria was divided into Local Government Electoral Wards: see
the Local Government
(Delimitation of Electoral Wards) Notice 1990 (Annex NC-M 172).
3.194 In Ikang Central Ward (with code No. LG/29/CR) in Akpabuyo Local
Government Area, of the 15
villages constituting that ward, Ine Nkan Okure I, Ine Nkan Okure II, In
e Ekoi, Ine Utan Asuquo, Ine Ikang,
Ine Ukpono, Ine Akpa Ikang and Ine Utan are all on Bakassi (Annex NC-M
173).
3.195 Electoral Wards were designated in the Bakassi LGA under the auspi
ces of the National Electoral
Commission of Nigeria for Cross River State in 1996. There are now nine
electoral wards (Abana, Akpa
Nkanya, Atabong West, Atabong East, Efut Inwang, Akwa, Archibong, Odon A
mbai Ekpa and Odiong). The
delimitation by the Electoral Commission appears in Annex NC-M 174. From
this it is apparent that:
Abana Ward includes Abana Ntuen and Ine Ekoi
Odiong Ward includes Edem Abasi
Akpa Nkanya Ward includes Akpa Nkanya, Ine Mba and Ine Effiom
Archibong Ward includes Archibong Town.
3.196 The pleadings of the Cameroon Government do not contain any refere
nce to the creation of electoral
wards in any part of the Bakassi region. In this respect the Cameroon Reply fails to respond to the evidence set
forth in the Counter-Memorial, page 244, paragraphs 10.73 to 10.75.
(i) Participation in Parliamentary Elections
The location of places mentioned in this Section is shown on Fig. 3.16
3.197 In the 1959 Federal election, Mr. Okon John Eminue, a Methodist Sc
hool head teacher, was elected
member representing Eket East Constituency which included some of the Ba
kassi villages. During the 1964
Federal elections won by the then Barrister E.I. Nkereuwem (now a retir
ed Judge of the Akwa Ibom State
Judiciary), one polling booth was erected at Akpa Nkanya, two at Abana,
one at Ine Odiong, one at Ine Onosi,
one at Atabong East and one at Atabong West. Between 1960 and 1963 Etim
Effion Bassey, the retired
principal of Methodist Boys' High School, Oron (from Eyofai Enwang) wa
s a member representing Ward 5 -
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including Effiat villages in Bakassi - in the then Okobo-Oron County Cou
ncil of Eket Division. But between
1964 and 1966, Mr. Bassey was replaced by Ebi Umo, as the member represe
nting this ward in the said
Council. Ebi Umo, now the head of Akwa Obio Efiat, is a great grandson o
f Edidem Nteun Umo, the reputed
founder of Akwa Obio Effiat, and the fourth in the stock of the founder
of Abana Ntuen.
3.198 Further evidence is provided by Chief Edet Okon Isemin. In his own
words:
"I am a native of Ibaka in the present Mbo Local Government Area of Akwa
Ibom State of Nigeria [......].
From 1976-79, I was a Councillor in the then Oron Local Government
representing Effiat/Ibaka Wards which included the Bakassi area.
From 1st October 1979 to 30th September, 1983, I represented the Effiat/
Mbo
State Constituency in the defunct Cross River State House of Assembly in
Calabar. Up to this moment, Bakassi is still part of Effiat/Mbo State Co
nstituency
of Akwa Ibom State of Nigeria.
During the electoral rallies of those periods mentioned above, I persona
lly
campaigned for voters' support in the villages of Abana Ntuen, Atabong,
Ine
Okpo, Ine Odiong, Ine Ataya, Ine Akpak, Inua Mba etc. - all in Bakassi
Peninsula." (Annex NR 71).
3.199 The evidence of the Clan Heads exercising authority in the Bakassi
villages is helpful. According to the
Clan Heads villages have voted in recent elections in the following area
s: Archibong, Akwa, Atabong West,
Atabong East, Abana, and Ine Akpa Ikang, see Appendix.
3.200 The pleadings of the Cameroon Government do not contend that resid
ents of Cameroon have taken part
in parliamentary elections relating to Cameroon. In this respect the Reply of Cameroon fails to respond to the
evidence set forth in the Counter-Memorial, page 245, paragraph 10.76.
(j) Immigration
3.201 The immigration post at Ikang has been in use since October 1966 (
see the Handing Over Notes for the
Immigration Office at Calabar dated October 1966 and September 1977, Ann
exes NC-M 197 and NC-M 198).
This post was located at Ikang because Nigeria's internal road system in
the area terminated at Ikang, and
therefore any travellers by vehicle or foot to the border would mostly h
ave to pass through Ikang.
3.202 At Annex NC-M 199 are the records for the immigration post in Apri
l and May 1988. These show the
passage of persons entering Nigeria with identity cards. All the persons
mentioned were travelling into Nigeria
from Lobe in Cameroon (also known as Ekondo-Titi). No one from any of
the villages in Bakassi is noted. If
the people of Bakassi were Cameroonian, they would carry identity cards
and would have been noted down at
Ikang immigration post, giving Bakassi settlements as their Port of Emba
rkation. There is no evidence of this.
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3.203 The Clan Heads with authority over the Bakassi villages have repor
ted that the villagers do not carry
passports and move in and out of Ikang without being subjected to immigr
ation controls - see Appendix.
(k) Public Education
The location of places mentioned in this Section is shown on Figure 3.14 at the end of the Section
3.204 The provision of public education is clearly an exercise of State
functions constituting evidence of title.
In the Land, Island and Maritime Frontier Dispute the Chamber of the Court recognised that the provision of
public education counted as an effectivité.39 In the Report of the Court of Arbitration in the Beagle Channel
case, the Tribunal refers to the provision of public education as a Stat
e activity "customarily associated with
the existence of sovereignty".40
3.205 From as early as 1893 there was a Methodist School at Archibong, b
ut in the period prior to the 1960s,
the people of Bakassi, if they were able to afford the cost of transport
, tended to send their children to Duke
Town Primary School in Calabar, which had first been established in 1846
.
3.206 In the post-Independence period pupils from the Bakassi villages a
ttended the Methodist Primary
School at Ikang. Class Attendance Registers for the years 1961-62, 1963,
1965 and 1967, include pupils from
Archibong Town (Annexes NR 72-75).
3.207 A Methodist School was established in 1968 at Atabong, and this wa
s still within the authority of the
Nigerian Education and Examination board in 1975 (Annex NC-M 183).
3.208 In a Note dated 15 September 1969, Cameroon protested when a prima
ry school was established at
Abana by the Catholic Mission based at Uyo (Annex NC-M 148). Whilst th
e school was not supported by
public funds, the Government of Cameroon clearly regarded this developme
nt as evidence of a form of
Nigerian State activity.
3.209 Nine schools in total were established on Bakassi prior to 1994. T
hese were located in the following
settlements (see Annex NC-M 184):
Settlement Type of School Date of Number
Foundation Enrolled
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Archibong Town Methodist 1893 300
Nkan Okure Community 1962 200
Atabong West Government 1968 450
Atabong East Community 1968 345
Mbenmong Community 1975 150
Nwanyo Community 1981 100
Abana Town 41 Government 1992 405
Archibong Town State Secondary School 1993 150
State Secondary School 1993 160
Atabong Town
3.210 Some of these schools were forced to close during the troubles in
the period 1967-1968, and also during
the period at the beginning of 1994. This latter was as a result of the
threat posed by the sustained attacks and
occupation by Cameroonian soldiers and police. Such attacks in 1968 were
drawn to the attention of the
Etuboms at Calabar and were perceived as very serious (see paragraph 3.
139 above).
3.211 In Annexes MC 317 and MC 322, there are two internal notes, which
appear to be exactly the same but
which are given two different dates on their cover sheet, 18 February 19
92 and 18 December 1992
respectively. These show that even Cameroon recognises the fact that the
se schools are Nigerian. These notes
state:
"... the Community School, opened and directed by the Local Community of
JABANA (Cameroun) [called Abana by the Efiks], receives subventions fr
om
AKPABUYO LOCAL GOVERNMENT, the State Commune of AKWA-BOM
[sic] IN NIGERIA. Initially it was built of temporary materials and then
in the
process of being refurbished in permanent materials. The Teachers are al
l natives
of NIGERIA." (Annex NC-M 186)
3.212 In September 1992 construction of a new primary school had begun a
t Abana under the auspices of
Akpabuyo Local Government (Annex NR 76) and at Atabong West in Septemb
er 1994 (Annex NR 77).
3.213 More recently, the Cross River State Ministry of Education granted
permission to open fifteen primary
schools in villages on Bakassi which included Akpa Nkanya, Ibekwe, Ine E
koi, Mbenmong, Nwayo, Onosi
(Annex NC-M 187).
3.214 The particularly impressive aspect of the educational picture is t
he fact that many individuals provide
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testimony that they received their education in Nigerian-created schools
either in Bakassi or in Calabar. The
Bakassi Chiefs state that primary education and schools have existed on
Bakassi for quite a long time. Etinyin
Etim Okon Edet, the Clan Head of Abana, attests that he had attended the
Abana Catholic Mission School
from 1969. He submitted his report card for Elementary 1 (Annex NR 78)
. He said his school only had
Elementary 1, 2 & 3, after which he and others went over to the mainland
to continue their primary school
education. He remembers that his headmaster was called Mr. Friday Ebukan
son. He also remembers his class
teacher, Chief Nyong Etim Inyang. He is still alive and is now the villa
ge head of Adak Uko. The Clan Head
of Abana, His Royal Highness Etinyin Etim Okon Edet was the Chairman of
Akpabuyo Local Government
under which the northern part of Bakassi was administered before it was
made a separate Local Government
in 1996. He constructed a primary school at Abana in 1992 and as Chairma
n of the Local Government he
posted teachers to the school, and to other schools (see above paragrap
h 3.212 and Appendix).
3.215 His Royal Highness, Ededem Archibong, the clan head of Archibong c
lan stated that primary schools
existed in Archibong Town for a long time. A teacher named Samuel Udo is
still resident in Archibong Town.
He stated that he came to the village in 1977, and, discovering that the
re was no functioning school, created
one himself. It was run by the local community and received no funding o
r resources from either Nigeria or
Cameroon. He ran this primary school from 1978 until 1994, when the Nige
rian local government became
involved in the administration. The primary school has about 500 pupils
at present. A secondary school was
also built in Archibong in 1993, and this has about 200 pupils. The Clan
Head himself attended school in
Calabar. He stayed in Calabar during term time and returned to Archibong
during the holidays (see Appendix).
3.216 The Clan Head of Akwa affirmed that there is a community primary s
chool in Nkan Okure which is run
by the local people. This was re-opened during the 1970s and has been ap
proved by Akpabuyo LGA. There
are currently 4 teachers and 150 pupils there.
3.217 A secondary school was set up in West Atabong in 1995. It was fund
ed by the local government. A
primary school was also established by the LGA in 1994. The teachers of
both schools are paid by Nigeria.
Before then, there were community schools which were run by the churches
. Isaac Boro also started a school
in West Atabong in 1968 during the civil war. This was run by Antera And
em Ema, who is still alive today.
He stated that he was never paid as a teacher, and that when Isaac Boro
left, the community took over the
running of the school. Eventually it was abandoned. The children then us
ed to go to Ikang or to Calabar for
their education. The clan head attended school in Calabar, where he stay
ed during term time and returned to
West Atabong for the vacation (see Appendix).
3.218 In relation to East Atabong the Clan Head reports that a primary s
chool was set up in 1999. Prior to that
there was a community school run by the local people, or some attended t
he Isaac Boro school in West
Atabong or the schools in Ikang and Calabar. The Chief himself attended
school in Calabar.
3.219 The evidence relating to the provision of schools is to be appreci
ated in comparison with the evidence
offered by the Government of Cameroon. The Reply provides no evidence but refers to paragraphs 4.452-
4.456 of the Memorial (Reply, page 307, paragraph 5.218). In fact the Memorial offers only the following
statement:
'Des établissements scolaires construits par l'Etat camerounais, tant
du niveau
primaire que du niveau secondaire, existent également dans la péni
nsule. On
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mentionnera à titre illustratif, pour le niveau primaire: le Catholic School de
Mundemba, le Catholic School d'Ekondo-Titi, l'école primaire de Bamuso; pour
le niveau secondiare; le lycée de Mundemba (créé en 1975), le
s C.E.S. d'Issangele
(1992) et de Bamuso (1992) dans le domaine de l'enseignement géné
ral, et la S.A.
R. de Mundemba pour l'enseignement technique (la S.A.R. créée à
Bamuso s'étant
42
avérée non viable).' (paragraph 4.453)
3.220 In fact none of these locations are in Bakassi and thus in the res
ult Cameroon, in two rounds of written
pleadings, has failed to provide evidence of a single school run by the
Cameroonian authorities in the Bakassi
region. The absence of schools constitutes a powerful contradiction of t
he Cameroonian claim to sovereignty,
more especially when the region concerned is populated, and has been pop
ulated for generations. In this
context it is to be emphasised that the Reply of Cameroon has failed to respond to the evidence set forth in the
Counter-Memorial, pages 250 to 252, relating to public education.
(l) Public Works and Development Administration
The location of places mentioned in this Section is shown in Figure 3.18 at the end of the Section
3.221 The existence and the planning of public works and the provision o
f a subsidised infrastructure
43 44
constitute evidence of title: see the Rann of Kutch Arbitration, and the Judgment in the Minquiers case.
45
3.222 The South-Eastern State Development Administration Edict No.7 of 1
972 established a Development
Administration system, in which the territorial units were Development A
reas. The Development Areas
established extended to the Bakassi Peninsula. The relevant Areas and th
eir constituent villages were as
follows:
"CALABAR DIVISION
30. Ikang Development Area
Constituent Villages
1. Ine Nkani Okure No. 1 25. Ikot Antigha Ene
2. Ine Nkani Okure No. 2 26. Ikot Mkpang Esighi
3. Ine Utan 27. Ikot Abasi Ene Esighi
4. Ine Utan Asuquo 28. Ekepene Esuk Esighi
5. Ine Ikang 29. Itam Ikot Antigha
6. Ine Akpa Ikang 30. Efut Abua Esighi
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7. Ine Ibuot Owong 31. Udua Inwang Esighi
8. Ine Efiom 32. Ifiang Nsung
9. Ine Ukpono 33. Ifiang Edem Inyang
10. Ine Ekoi 34. Edik Okon Idem
11. Ikang Efio Ekpe 35. Esuk Aye
12. Ikang Town 36. Esuk Okon
13. Edik Idim Ikot Efanga 37. Ikot Inwang Okpo
14. Efut Abua Ikot Eyei 38. Abakpa Ikot Nkok Anie
15. Ikot Efio Odiong Ene 39. Ikot Okon Ekpriwong
16. Ikot Inyang Nsidung 40. Ikot Edem Oku
17. Akwa Obio Inwang Nsidung 41. Ikot Otu
18. Ekpri Obutong 42. Abakpa Efio Ase
19. Obutong Abasi Eke 43. Usung Esuk Efio Obori
20. Ekpri Ikang 44. Akpap Okon Ene Ita
21. Okukubarakpa Esighi 45. Fait Ikot Nsa Ewa
22. Ikot Ene Uyi Esighi 46. Fait Ikot Naidung
23. Usung Idim Ikot Antigha 47. Esine Ufot Nsidung
24. Ikot Enene Esighi 48. Nyomidibi Nsidung
ORON DIVISION
157.Effiat/Ibaka Development Area
Constituent Villages
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1. Ibaka 15. Utan Bramah
2. Akwa Obio Effiat 16. Mbe Ndoro
3. Inua Abasi 17. Ine Okpo
4. Ibuot Utan 18. Ine Akpak
5. Usuk Effiat 19. Ine Atayo
6. Obio Iyatta 20. Ine Odiong
7. Abana Ntuen 21. Akpa Nkanya
8. Esuk Enwang 22. Edi Abasi
9. Ibuot Ikot 23. Obong Nim
10. James Town 24. Onosi Abana
11. Mkpang Utong 25. Idak Okono
12. Utan Antai 26. Asiba
13. Utan Efiong 27. Ine Inua Abasi
14. Utan Udombo 28. Mbat Ekpa."
3.223 In accordance with the Edict of 1972, the Akpabuyo County Developm
ent Council (Establishment)
Instrument was promulgated in August 1972. This included within Ikang De
velopment Area, the Bakassi
villages of Ine Nkan Okure I, Ine Nkan Okure II, Ine Utan, Ine Utan Asuq
uo, Ine Ikang, Ine Akpa Ikang, Ine
Effiom, Ine Ukpono, and Ine Ekoi. (Annex NR 79). These same villages a
lso appear in the Ikang Area
Development Committee (Establishment) Instrument 1972 which establishe
d the Ikang Development
Committee: these villages constituted a separate ward, represented by on
e Committee-man (Annex NR 80).
3.224 In accordance with the Edict of 1972 the Co-ordinator of Developme
nt Administration established the
Effiat/Ibaka Area Development Committee, with authority to act in the ar
ea of the villages listed in the
Schedule to the Edict. The relevant Instrument, dated 16 August 1972 (A
nnex NC-M 179), included Abana
Ntuen on the Bakassi Peninsula.
3.225 A letter from the Department of Development Administration in Oron
to the Senior Divisional
Executive at the Oron Divisional Office, dated 12 December 1973 (Annex
NC-M 180), refers to the following
constituent villages being within Effiat/Ibaka Development Area of the O
ron East County Development
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Council:
Abana Ntuen
Ine Akpak
Ine Atayo
Ine Odiong
Akpa Nkanya
Edi Abasi
Onosi Abana
3.226 The Edict of 1972 (Edict No.7 of that year) was the basis for th
e Oron East County Development
Council (Establishment) Instrument of 1973 (Annex NC-M 181). The ins
trument 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 1972 and delega
ted to
me under the Development Administration Delegation of Powers Order 1972,
I,
MTIENYONG UDO AKPAN, Co-ordinator of Development Administration of
the South-Eastern State of Nigeria, hereby make the following -
INSTRUMENT
1. The Oron East County Development Council (hereinafter referred to as
'the
Council') is hereby established.
2. The Council shall exercise authority in accordance with the provision
s of the
South-Eastern State Development Administration Edict 1972 (hereinafter
called
"the Edict") throughout the Development Areas specified in Column 1 of
the
Schedule hereto.
3. The Council shall, exclusive of ex-officio members and such tradition
al rulers
and special members as may be appointed to the Council by the Co-ordinat
or as
provided in the South-Eastern State Development Administration (No.2)
(Amendment) Edict 1973, consist of a chairman and not more than twenty
-four
members selected from the constituent villages [or] combination of villa
ges set
out in the Schedule hereto, in accordance with the Development Administr
ation
(Selection of Councillors and Committeemen) Regulations 1972."
3.227 The schedule to the instrument includes the Bakassi village of Aba
na Ntuen in the development areas
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thus constituted.
3.228 In October 1994 the Cross River State Government purchased fishing
gear for fishermen of the Bakassi
Peninsula to replace losses caused by political disturbances involving A
rchibong Town, Abana, West Atabong
and East Atabong: see Annex NC-M 182.
3.229 The pleadings of Cameroon contain little or no evidence of public
works or development administration.
In the Cameroon Memorial there is only the following passage:
'Enfin, l'encadrement des agriculteurs de cette zone est assuré par d
es services
étoffés. Il existe en effet une délégation départementale
de l'agriculture à
Mundemba, des délégations d'arrondissement à Idabato, Issangele
et Mundemba,
et des postes agricoles dans les mêmes localités auxquelles s'ajou
tent un peu plus
au nord de la péninsule ceux d'Akpassang Korup, Bombage, Meangwe II e
t
46
Mundemba.' (page 495, paragraph 4.454)
This is characteristic of the approach to evidence adopted by Cameroon.
No documents are cited and no
reference is made to specifics. Moreover, with respect to the places men
tioned only one, West Atabong
(renamed Idabato), is situated within the Bakassi region. A serious in
adequacy is the absence of dates, a
question of the first importance from a legal standpoint. Furthermore, t
he link between West Atabong and
agriculture is very difficult to understand. West Atabong is exclusively
a fishing and trading village. There is
no commercial agriculture there.
(m) Provision for Public Health
The location of places mentioned in this Section is shown on Figure 3.19
3.230 In its Report in the Beagle Channel arbitration, the Court of Arbitration referred to 'the provision of
47
public medical services' as a State activity 'customarily associated wit
h the existence of sovereignty'.
3.231 Since 1959, the Nigerian authorities in Bakassi have established H
ealth Centres for the benefit of the
communities on Bakassi, and, indeed, these have often been built with th
e assistance of the local communities.
These health centres are supplied with Nigerian funding, and the residen
t public health workers are trained in
Nigeria. There are currently ten such health centres across the Bakassi
Peninsula providing a wide range of
health care and programmes (Annex NC-M 188). The following is a list o
f the foundation dates of some
Health Centres (Annex NC-M 184):
Name of Settlement Date of Establishment
Archibong 1959
Mbenmong 1960
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Atabong West 1968
48
Abana 1991
Atabong East 1992
3.232 Apart from health centres within the Bakassi region, the Health Ce
ntre at Ikang, on the Nigerian
mainland, treats patients from the Bakassi villages. Immunization Record
s are available for the years 1986 to
1990: see Annex NR 82. Patients resident in Archibong and Atabong are li
sted in the attendance records. The
ante-natal clinic at the Ikang Health Centre is attended by women from B
akassi. These records dating from the
period 1985-1999 include the following villages on Bakassi: Archibong To
wn, Ine Ikang, Ine Ekpo, Ine Akpa
Ikang, and Ine Utan. (Annex NR 83)
3.233 In the course of 1994, Cross River State made provision for the eq
uipping of health centres in
Archibong Town, Atabong West and Abana (Annex NC-M 189).
3.234 At no stage had the Cameroon authorities made provision for health
care in the Bakassi region. This
view of the position is essentially confirmed by the account of effectivités which appears in the Cameroon
Memorial, paragraphs 4.420 to 4.456, and also in the Cameroon Reply, paragraphs 5.218 to 5.232. The Reply
refers to health centres in the departments of Fako, Manyu, Meme and Ndi
an (Annex RC 197). In fact the
document relied upon is dated 1992 and the only health centre referred t
o in the document which is located in
Bakassi is at West Atabong (re-named Idabato). If this document is tak
en at its face value, it confirms that no
health centres existed in Bakassi prior to 1992. However, the Annex is e
ntitled 'Projet Cameroun/GTZ
(Allemagne)' and appears to be programmatic in character.
3.235 The Clan Heads with authority over the Bakassi villages confirm th
e provision of clinics by Akpabuyo
LGA, with assistance from Cross River State. In earlier times sick villa
gers attended clinics in Ikang or
Calabar - see Appendix. The Clan Heads made no reference to the provisio
n of medical facilities by the
authorities of Cameroon.
3.236 The Counter-Memorial of Nigeria contains detailed references to the provision of public heal
th in
Bakassi: see pages 252 to 253. Specific dates are given. The matter is d
ealt with in the Memorial in a single
sentence, with no dates given, thus:
"Il existe des centres de santé à Issangele, Kombo Abedimo, Idabat
o et Jabane,
dont les dotations financières sont régulièrement inscrites au
budget du Ministère
49
de la Santé." (page 495, paragraph 4.452)
The Reply fails to respond to the data provided by Nigeria in the Counter-Memorial.
(n) Local Administration
3.237 Before October 1, 1960, the Bakassi Peninsula was administered und
er Calabar in accordance with
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Akpabuyo County Council (Establishment) Instrument 1953, published in
the Eastern Region Public Notice
No.86 of 1953 as amended (Annex NC-M 137).
3.238 After Independence, Bakassi was administered as part of Nigeria by
virtue of the following legislation:
(1) The Local Councils (Calabar Division) (Establishment) Instrume
nt, 1953 of Eastern Region Legal Notice
No.88 of 1953, as amended by Legal Notice No.267 of 1959 and Eastern Nig
eria Local Government Notice
No.1 of 1963 (Annex NC-M 200).
(2) The South-Eastern State Development Administration Edict No.7 of 1
972 (which repealed South-Eastern
State Development Administration Edict No.18 of 1971) under "Ikang Deve
lopment Area" and "Effiat/Ibaka
Development Area" (Annex NC-M 178).
(3) The Cross River State Law on Local Government (No.9 of 1983) (s
ee in particular p.A 69) (Annex NC-M
201).
(4) The Akwa Ibom State Local Government Edict (No.3 of 1989) - see
in particular pages A.75-6 (Annex NR
84).
(5) Decree No.36 - States (Creation and Transitional Provisions) - o
f 1996. This Decree constituted Bakassi
into a Local Government Area under Cross River State of Nigeria with Hea
dquarters at Abana (Annex NC-M
202).
(6) Decree No.7 - Local Government (Basic Constitutional and Transiti
onal Provisions) Decree of 1997
(Annex NC-M 202).
3.239 In 1975 the appointment of Justices of the Peace was reported in t
he South-Eastern State of Nigeria
Gazette (Annex NC-M 204). The relevant South-Eastern Notice No. 248 refers to
the appointment of Chief
Akwu Edem Archibong in respect of the "Area normally covered by the Poli
ce Station at Ikang" (which, as
has been shown above (paragraphs 3.149 et seq.) included Bakassi).
(o) The Exercise of Ecclesiastical Jurisdiction
The location of the places mentioned in this Section is shown on Figure 3.20
3.240 A normal outwork of a system of civil administration is the exerci
se of an ecclesiastical jurisdiction by
religious authorities in the form of the registration of births, marriag
es and deaths. This type of evidence was
taken into account by the Chamber in the case concerning the Land, Island and Maritime Frontier Dispute. 50
3.241 The Court is respectfully requested to study the pages from the ba
ptismal and marriage registers of St.
Mark's Parish, Oron, which contain the names of members resident in Aban
a in the Bakassi Peninsula (Annex
NC-M 170). The dates stretch from 1938 to 1979. Another certificate of
baptism, dated 7 December 1986, is
provided by the Apostolic Church at Abana: see Annex NR 85.
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3.242 The relevance of the role of the Catholic Church of St. Mark at Or
on in Akwa Ibom State is
considerable. Oron is a Roman Catholic Parish which is currently a part
of Uyo Diocese. Before the formation
of Uyo Diocese, Oron was a part of the Calabar Diocese. Roman Catholic D
ioceses are, as is well-known,
stable formations. Neither Diocese has at any stage included any part of
Cameroon.
3.243 The southern part of Bakassi fell within Oron Parish. Persons bapt
ised in Oron Parish include persons
from Abana. In the entire Bakassi region the Parish Priest from Oron has
always said masses. Neither the
present incumbent nor his predecessor has ever encountered a priest from
Cameroon.
3.244 As a result of early missionary activity in the area the Methodist
Church was established in Archibong
Town, part of the Calabar Circuit. A Certified True Copy of a Baptism Ce
rtificate is available from this church
dated 15 February 1970: see Annex NR 86.
3.245 The Clan Heads with authority over the Bakassi villages provide re
liable evidence of the creation of
churches by authorities based in Nigeria or by individuals from Nigeria.
The evidence of the Clan Heads
confirms the existence of churches with exclusively Nigerian affiliation
s in the following villages: Archibong,
Akwa (1955), Atabong West (circa 1940), Atabong East (circa 1940), Abana (circa 1950), and Ine Akpa
Ikang (1993) - see Appendix.
3.246 Churches, like local schools, form part of the fabric of life in t
he Bakassi villages. The fabric of life is
Nigerian in character, both at the level of official activity and at the
social level. As in the case of education,
so in the case of churches, the Cameroon pleadings provide no evidence o
f the existence of any churches
affiliated with Cameroon: see the Cameroon Memorial, Vol. I, pages 486-96; and the Reply, pages 307-12.
(p) Internal Nigerian State rivalry over Bakassi
3.247 The northern villages on Bakassi have always been administered by
a different local authority to those
in the south, but both were within the same sub-region of Nigeria (see
above, Section (viii)). After the division
of Cross River State into two smaller States, Akwa Ibom and Cross River
in 1987, the villages were
administered by different local authorities in two separate Nigerian Sta
tes. Akpabuyo Local Government Area
in Cross River State administered those villages situated in the north o
f the peninsula and Effiat/Mbo Local
Government Area and Okobo Local Government Area in Akwa Ibom State admin
istered those villages
situated in the south of the peninsula (see paragraph 3.96 and Fig. 3.7 above).
3.248 As a result of this division of authority, there arose some confus
ion over which local authority should
administer the Bakassi Peninsula as a whole. Both States claimed that th
e Bakassi Peninsula was within its
sphere of administration for a number of traditional, cultural and econo
mic reasons. The Military
Administrators of the two States were both increasingly involved in prom
oting the Nigerian presence on
Bakassi through State administrative activities.
3.249 The rivalry between the States continued through to 1996, when the
States (Creation and Transitional
Provisions) Decree 1996 (Annex NC-M 202) was promulgated. This Decree
created Bakassi Local
Government Area, with its headquarters at Abana, as part of Cross River
State. This has gone some way
towards resolving the internal Nigerian confusion as to which State has
the rightful authority and
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administration over the whole of the Bakassi Peninsula.
3.250 In 1999 the issues outstanding between Cross River State and Akwa
Ibom State became the subject of
proceedings in the Supreme Court of Nigeria: Suit No. SC/124/1999 between Attorney-General of Cross River
51
State and Attorney-General of Akwa Ibom State and 5 others. This major litigation can only serve to
emphasise the depth of concern relating to the region of Bakassi on the
part of important Nigerian political
constituencies. Recently a Presidential Commission has been established
to examine the issue and has
delivered a first report.
(q) The Collection of Customs Duties
3.251 The collection of customs duties was taken into account by the Cou
rt in the Minquiers and Ecrehos
case.52 The exercise of customs jurisdiction was also taken into account in the
Rann of Kutch Arbitration. 53
3.252 Nigeria has operated a regular Customs patrol in the Bakassi area.
Documents from the Nigerian
Customs Service reveal that officers of the Customs Department at Ikang,
Nigeria, regularly patrolled the
Bakassi Peninsula until at least July 1970 (Annex NC-M 195). The area
of their patrol included, for instance,
the Bakassi village of Nkan Okure (ibid.).
3.253 The Cameroon pleadings provide no sufficient evidence of customs p
atrols within the Bakassi region:
see the Memorial, page 493, paragraph 4.445. The Cameroon Reply fails to respond at all to the evidence
provided in the Counter-Memorial: see the Reply, pages 307-312.
(r) Use of Nigerian Passports by Residents of the Bakassi Peninsula
3.254 Residents of the fishing villages in the Bakassi Peninsula use Nig
erian passports. The passport
application forms at Annex NC-M 196 show that people from Akpa Nkanya, N
kan Okure and Ine Mba (see
Fig. 3.21) have applied to Nigeria for Nigerian passports in order to travel to
Cameroon and elsewhere.
Bakassi villagers travelling to mainland Nigeria through Ikang are not s
ubjected to immigration procedures.
(s) The Existence of a Nigerian Postal Administration
3.255 International tribunals recognise that the existence of a postal a
dministration constitutes significant
evidence of title to territory: see the Report of the Court of Arbitrati
on, Beagle Channel case (Argentina v.
Chile), I.L.R. Vol. 52, p. 93. In this case the Court took account of t
he establishment of a postal service on
Picton Island by Chile in 1905: ibid., p. 221, paragraph 166 (b).
3.256 According to the Clan Head of West Atabong, the villagers send and
receive their post through Ikang,
and visit Ikang to collect and post letters (see Appendix).
3.257 A postal agency was established at Ikang in 1963 and sponsored par
tly by Posts and Telegraphs and
partly by the Local Government. The Agency became dormant in about 1997.
Postal records available include
a selection of Notices, Reports and correspondence for the period 1962-1
998 (Annex NR 87). The last
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postmistress appointed affirmed that the Agency served the principal set
tlements in Bakassi. Thus post was
received from the area for delivery to the main sorting office in Calaba
r, and incoming post for Bakassi
addressees was made available for collection on a poste restante basis. Letters addressed to residents on
Bakassi (Annex NR 88), and a registered items delivery receipt book in
cluding receipts for residents in
Archibong (NR 89) were all found in the Agency by members of Nigeria's
legal team on a visit to Ikang in
August 2000.
3.258 There is no evidence that Cameroon has at any time sought to estab
lish a postal administration in the
Bakassi region: see the Cameroon Memorial, pages 490-96, and the Reply, pages 307-12.
(t) The Licensing of Canoes belonging to Residents of Bakassi
3.259 Akwa Ibom State imposes a charge on canoe owners landing fish, des
cribed as a 'haulage fee'. Relevant
receipts for 1994 are to be found in Annex NR 90. The receipts relate to
payers resident in Ata Obong
(Atabong and Abana).
3.260 The Government of Cross River State imposes Canoe Landing Fees: an
example of a receipt issued in
1988, relating to Atabong, is at Annex NR 91.
3.261 In addition the Effiat-Mbo Local Government (of Akwa Ibom State)
requires the licensing of canoes
and the use of official number plates. Copies of Numbered Receipts for C
anoe Licence Fees are at Annex NR
92. The Effiat Mbo Register referred to above at paragraph 3.168 in conn
ection with the collection of the
General Rate also contains the record of issued Canoe Licence Plates. Th
e relevant pages for 1990 are at
Annex NR 93. Once again collection of the fees for Bakassi is entrusted
to the Brama Task Force. Numbers
appearing on the copy receipts in Annex NR 92 appear also in the Registe
r.
(u) The Granting of Oil Exploration Permits
3.262 In the Reply the Government of Cameroon appears to rely upon the granting of oil lic
ences as evidence
of sovereignty in relation to the Bakassi Peninsula : see the Reply, pages 244-245, paragraphs 5.14-5.16.
3.263 However, the legal consequences of the situation described in the
Reply are not specified by Cameroon.
In a Commentary which appears at the end of this Section the Government
of Nigeria examines the data
referred to in this part of the Reply. It is now proposed to set forth the Nigerian position on both the fact
s and
the law.
3.264 After the Independence of Nigeria, private operators interested in
petroleum prospects recognised the
existence of Nigerian title to the Bakassi Peninsula. Thus in 1965 surve
yors, acting on behalf of Mobil Oil
Cameroun, approached the Nigerian Government for permission to carry out
survey work: "on the Western
bank at the mouth of the Calabar River" (Annex NC-M 190). It is not cl
ear whether this was a reference to the
western coast of the Bakassi Peninsula or to territory in Akwa Ibom Stat
e.
3.265 In any event the resulting survey work was carried out at least in
part on Bakassi and gave rise to an
incident described in a Nigerian internal report as follows:
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"We have been approached by the Cameroun Ministry of Foreign Affairs in
respect of an incident which befell certain American employees of Mobil
Oil
Cameroun in the Rio-del-Rey area of the Cross river. Apparently, inadver
tently,
they trespassed on Nigerian soil in order to carry out certain surveys w
hich they
were doing for Mobil Oil Cameroun. They were discovered by a Nigerian
Policeman on the 29th October who seized their passports and ordered the
m to
quit within a week. The Cameroun Ministry of Foreign Affairs are not con
testing
the fact that the territory is Nigerian; however, they are pleading that
the
Americans trespassed inadvertently and would be grateful if their passpo
rts are
returned." (Annex NC-M 191)
3.266 The approach by the Cameroun Ministry of Foreign Affairs was (in
material part) as follows:
"A petrol survey team of the geographical section of the 'Mobil Oil' who
were
operating on a land concession given by the Cameroun Authorities in the
delta of
the Cross River (long. 8°33 E, lat. 4°30 N) were arrested on 29t
h October 1963 by
a Nigerian police officer who considered that this land was part of the
Nigerian
territory and called the whole team to leave the place in a week's time;
he also
took his passport from Mr. Guy Cogswell an American citizen and a member
of
the team.
The Ministry has been informed of this incident. ... it deeply regrets i
t and
reserves the position of the Cameroon Government as for the elements of
the
problem.
The Ministry requests the Embassy to approach their Government so that M
r.
Cogswell's passport be given back to him and seizes this opportunity to
renew to
the Embassy the assurance of its highest consideration." (Annex NC-M 19
2).
3.267 The picture which emerges from the documents contains two basic el
ements. First, the area in dispute
was the subject of competing exploration activities and, secondly, the i
ncidence of oil-related activities was
not regarded as conclusive of the issue of sovereignty.
3.268 There is evidence that Cameroon was at all material times aware of
the views of the Nigerian
Government concerning entitlement to oil resources. Thus, the author of
an internal Cameroon report of 1981
relating to the situation at the mouth of the Rio del Rey addressed to t
he Directeur General du CND at
Yaoundé made the following observation:
"Par ailleurs, on dit que les nigérians en principe ne sont pas satis
faits de voir la
Société Nationale de Raffinage entrer en sa phase opérationnell
e puisqu'ils disent
que c'est leur petrole que nous sommes en train d'exploiter". (Annex MC
260) 54
3.269 The expression of Nigerian concerns continued through the 1980s. O
n 29 October 1986 the Permanent
Secretary of the Nigerian Ministry of External Affairs wrote to the Amba
ssador in Yaoundé. Under the
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heading 'Nigerian Border and Oil Exploration' he had this to say:
"Further to my telegram No. CWN.121 dated 27th October, 1986, I am direc
ted to
inform you that an inter-ministerial meeting was held recently on the ab
ove-
mentioned subject. One of the decisions reached was that you should be a
sked to
ascertain the extent of the Camerounian violation of the Nigerian border
as it is
understood that Cameroun has resumed oil exploration in the disputed Bak
asi
peninsula area.
2. I should be grateful if you would kindly verify the correct position
and report
back as early as possible." (Annex NR 94)
3.270 The outcome of this continuing concern was the meeting of the Nige
ria/Cameroon Joint Commission in
Yaoundé from 24 to 28 August 1987. At the inaugural session of the Jo
int Commission a Protocol was agreed,
which reads (in material part) as follows:
"At the opening ceremony, the heads of the delegations in their speeches
reviewed the level of bilateral economic relations existing between Nige
ria and
Cameroon and observed that there was much room for improvement in order
to
translate into concrete actions, the desires of both countries for stron
ger ties. The
two Ministers therefore re-affirmed the commitment of their two countrie
s
towards consolidation and expansion of the existing ties and co-operatio
n
between the two countries.
The Joint Commission which conducted its work in a full plenary session,
considered and adopted the following items on the agenda:
(1) Petroleum ...
Below is a summary of the outcome of the deliberations on the various it
ems
tabled:
1. PETROLEUM
The Nigerian Side, considering that a lot of oil activities have been ca
rried out in the boundary
between Nigeria and Cameroon within the continental shelf area and in th
e Chad and Benue
basins by the two countries, proposed the establishment of a contingency
plan for controlling or
containing oil pollution, against marine life, which may arise from petr
oleum exploitation.
Furthermore, having regard to the fact that offshore oil fields always l
ook close by and since
each side is likely to accuse the other of boundary violations, particul
arly in areas where the oil
reserve is believed to be common to both countries ... the Nigerian Side
also proposed co-
operation by the two countries in having a properly delineated boundary.
The Cameroonian Side took note of the observations and proposals made by
the Nigerian Side
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and promised to convey them to the appropriate Cameroonian authorities f
or
consideration." (Annex NPO 51; emphasis supplied)
3.271 This agreement confirms the state of affairs relating to oil activ
ities. Both Governments were aware of
the existence of a dispute concerning the Bakassi region and were anxiou
s to maintain a stable situation but
one in which the issue of title was not prejudiced.
3.272 The status quo recognised and sustained in the 1987 Protocol was to continue. The same
state of affairs
can be seen recorded in the Joint Meetings of Experts in 1991 and 1993.
During the Meeting in Yaoundé
between 28 to 29 August 1991, reference was made to the Maroua Declarati
on. In the Minutes of the 1991
meeting the following passages appear:
"La Partie Nigériane a relevé l'importance de cette question; elle
a estimé que la
position du gouvernement Nigérian sur cette question est connue du
gouvernement Camerounais. La partie Nigériane a precisé que tous l
es accords
signés dans le domaine des frontières avant la création en 1987
de la commission
nationale du frontiers du Nigéria ont été remis a cette commiss
ion. S'agissant en
particulier de la déclaration de Maroua, la partie Nigériane a sou
ligné que celle-ci
n'a pas été ratifiée par le Nigéria et que par consequent el
le ne constitute pas pour
elle, un instrument légal.
La partie Camerounaise a pris note de cette déclaration tout en pré
cisant que pour elle tous les
accords sont valables et qu'elle n'a jamais été notifée de cett
e position de la partie Nigériane.
La partie Nigériane a souligné la necessité pour les deux pays
de s'accorder sur un
cadre réaliste de négociations en vue de la réunion prévue à
Abuja." (NPO 52)
3.273 The two sides continued to agree to differ at the meeting of the J
oint Commission in 1993. The relevant
part of the Minutes read as follows:
"(A) - Examination of agreements and treaties relating to the land bor
der
In pursuit of the conclusion of the Abuja joint meeting of experts of De
cember
1991, recommending the assemblage of an inventory of existing documents
pertinent to the delimitation and demarcation of the two countries' land
border the
Cameroonian side proposed that such instruments identified by both parti
es be
examined without further delay.
The Nigerian delegation pointed out that the examination of these legal
instruments, since it was an important element, could not be done at thi
s meeting.
The two sides regretted that the joint sub-committee of twenty (20) ex
perts set up
at Abuja meeting of 1991 to draw up these instruments had not met as sch
eduled.
Both parties, therefore, agreed that the sub-committee should meet in Ni
geria in
the near future on a date to be determined and conveyed through diplomat
ic
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channels.
On the Lake Chad, the Nigerian delegation affirmed that the outstanding
works
had been satisfactorily completed and that the Nigerian experts had sign
ed the
technical report on the exercise. However, the southern extremity connec
ting with
the Ebeji river, which is bilateral between Nigeria and Cameroon, had be
en
referred to the two countries by the Lake Chad Basin Commission for reso
lution.
As regards the maritime sector of the border, the Nigerian delegation re
-affirmed
its non-recognition of the Maroua declaration of 1975 on the ground that
it was
not ratified. The Cameroonian delegation re-affirmed the validity of the
Maroua
declaration for her, the delcaration was a result of a long negotiation
and
detailed work by experts.
After a long and inconclusive discussion, which re-established the paral
lel
positions of the two parties, it was agreed that the matter to submitted
to the two
heads of delegation for consideration.
After due consultation the heads of delegation observed that the grounds
of
disagreement between Nigeria and Cameroon over the Maroua declaration of
1975 are more political than technical. In order not to hinder the furth
ering of the
existing excellent relations between the two nations, they resolved to r
efer the
matter to their respective heads of state for determination.
It was further observed that attempts by Nigeria and Cameroon to explore
and
exploit separately the resources straddling the maritime border from Poi
nt I to
Point G, in part covered by the Maroua declaration, have led to avoidabl
e wastage
and losses for both countries. In the light of this, the two heads of de
legation
agreed to recommend arrangements for joint ventures in the exploration a
nd
exploitation of the resources of the area.
Concerning exploitation of hydro-carbon resources south of point G, the
two
delegations confirmed the spirit and the letter of the provisions of the
minutes
signed in Abuja between the two delegations on 19 December 1991. In part
icular,
the freedom of each country to develop its resources along the border.
In the meantime, the two heads of delegation emphasised the need to main
tain a
regime of peace in the area and to prevail on their respective law enfor
cement
agencies in this regard." (Annex NPO 55 and NR 173 below; emphasis supp
lied)
3.274 The Joint Communiqué produced at the close of the meeting of th
e Joint Commission reflected these
positions.
3.275 The records of meetings and the pattern of oil concessions in gene
ral has reflected the regime of what
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might be described as concerted indecision in relation to land territory
. The offshore areas are resource-
related. The Bakassi Peninsula is inhabited, has been inhabited for gene
rations, and is the home of 100,000
Nigerians. If oil exploration on the mainland had been prejudicial to ti
tle, it would have also been prejudicial
to the rights of a settled population of Nigerians.
3.276 The attitude of the two parties is apparent from the fact that it
was not uncommon for concession blocks
to be unrelated in dimension to any claimed alignment. Thus immediately
after Independence Block OML 10,
granted by Nigeria to Shell/BP, extended from the mainland of Nigeria ac
ross Bakassi and eastwards across
the Rio del Rey into Cameroon (see Fig. 3.22).
3.277 The licensing pattern in the Bakassi region is referred to in the
Commentary below. Existing wells have
been capped and the onshore developments have been disappointing both in
terms of oil and gas. The trend of
opinion within the oil industry appears to be to the effect that explora
tion has been entirely without prejudice
to the issue of sovereignty. Moreover, in view of the existence of the d
ispute relating to Bakassi, it is not
surprising that the degree of activity on the Bakassi Peninsula was mini
mal when compared with the
production offshore. Ninety-five per cent of Cameroonian oil comes from
the offshore area.
3.278 In the Cameroon Reply the point is made that the granting of concessions in the disputed area
by
Cameroon did not lead to any protests on the part of Nigeria: see the Reply, page 244, paragraph 5.16. The
absence of protests is, of course, irrelevant given that the petroleum-r
elated activities were unrelated to the
incidence of title to territory.
3.279 In any event the Government of Cameroon expressly recognises that
it did not protest in response to
Nigerian oil activities: see the Reply, paragraphs 9.114 and 9.115. Cameroon seeks to explain her silence by
reference to the arrangements agreed at Abuja on 19 December 1991 (Anne
x NPO 54), according to which
information would be given of any action that might cause a nuisance. Th
is reasoning is unconvincing. There
was no obligation to give notice of concessions. The fact is that activi
ties might be pursued but without
prejudice to questions of title and subject to the ultimate settlement o
f the dispute.
3.280 Existing oil activities which involve overflight and related opera
tions are subject to the permission and
co-operation of the local Nigerian security forces.
3.281 The progress of oil development in Nigeria has been accompanied by
a type of development which is
aware of and responsive to the development needs of local communities an
d the preservation of the
environment. An example of such development is provided by the operation
s of Moni Pulo.
3.282 Moni Pulo Limited was the licensed holder of Block OPL 230 under a
licence issued by the Federal
Republic of Nigeria in accordance with the provisions of the Petroleum A
ct 1969 for a term of 5 years
commencing on 8 May 1992 (see Annex NR 95). Moni Pulo Limited is a Por
t Harcourt based oil company
formed in response to the Federal Government of Nigeria's initiative in
promoting opportunities for
indigenous companies in the exploration for, and production of, oil and
gas. OPL 230 lies offshore some 30km
from the city of Calabar, South Eastern Nigeria (see Fig. 3.23). On 27 April 1995, the Department of
Petroleum resources authorised Moni Pulo Limited to commence operations
in the block (Annex NR 96). An
extensive seismic program was initiated in July 1996 (see Annex NR 97)
. This led to the drilling of four
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exploration wells in 1997, two of which discovered the Abana oil field.
3.283 In 1998, Moni Pulo received approval from the Department of Petrol
eum Resources for field
development. As of February 1999, nine horizontal production wells have
been drilled, completed and tested.
A production barge with water injection facilities was assembled and a p
ipeline was constructed to transport
produced crude to the FPSO, Knock Taggert, located in Block OPL 98, oper
ated by Addax Petroleum
Limited. On 12 May 1999, Moni Pulo Ltd. received the approval of the Fed
eral Government of Nigeria for the
conversion of Oil Prospecting Licence (OPL) 230 to an Oil Mining Lease
(OML) 114 (see Annex NR 98). A
certified copy of the concession map for OML 114 is at Annex NR 99.
3.284 During the period of development Moni Pulo has undertaken various
community development projects
together with the communities in the Bakassi Peninsula. The projects und
ertaken and completed include the
provision of boats, the construction of boreholes and distribution pipes
, and the building of an assembly hall
for a secondary school (see Annex NR 100).
3.285 The company and the host communities on the peninsula are currentl
y negotiating a memorandum of
understanding which will guide future policies of development. An Enviro
nmental Impact Assessment is
being carried out and submitted to the Federal Ministry of Environment f
or review (Annex NR 101).
3.286 It is worth recalling that in the recent Arbitration between Eritr
ea and Yemen relating to sovereignty
over islands in the Red Sea the Tribunal, after an exhaustive examinatio
n of the complex concession history,
arrived at certain conclusions which, so far as material for present pur
poses, were as follows:
"437. The offshore petroleum contracts entered into by Yemen, and by Eth
iopia
and Eritrea, fail to establish or significantly strengthen the claims of
either party
to sovereignty over the disputed islands.
[......]
439. In the course of the implementation of the petroleum contracts, sig
nificant
acts occurred under state authority which require further weighing and e
valuation
by the Tribunal." 56
3.287 The principal conclusion is significant not least because the Cour
t of Arbitration had devoted much
effort to the examination of the granting of concessions. And yet the ou
tcome was characterised by a degree of
caution on the part of the Tribunal.
3.288 With respect to the second of the conclusions formulated by the Tr
ibunal, Cameroon has not provided
any evidence of any such 'significant acts'.
3.289 In the respectful submission of the Government of Nigeria the Cour
t should regard the need for caution
as inevitably enhanced in the case of an inhabited territory with a long
history of administrative economic and
social affiliations with Nigeria. In any case the attitude of the two pa
rties in the relevant period militates
against the view that title was based upon the ebb and flow of explorati
on permits. It may be recalled that in
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the Corfu Channel case (Merits) the Court took account of the 'attitude' of Albania in
forming a view of the
knowledge or otherwise of the presence of mines on the part of Albania:
I.C.J. Reports, 1949, pp. 19-20. In the
very different circumstances of the present case, both parties displayed
the same attitude in face of their
knowledge of oil activities. There was in fact a complementarity of atti
tude, amply confirmed in the
documents, to the effect that oil exploration and the issue of title to
land territory were not coincident.
3.290 In conclusion it is necessary to recall the context, which is desc
ribed in some detail in the foregoing
sections of this chapter. The Government of Nigeria has been exercising
sovereignty in respect of the Bakassi
Peninsula since the Independence of Nigeria in 1960. It was Cameroon whi
ch, especially in the 1970s, began a
policy of harassment of Nigerian villages and attacks on Nigerian police
and security forces. The granting of
permits on the part of Cameroon formed the background to this expansioni
st policy in the Bakassi region. It
would be ironical if the Court were to allow the oil activities of Camer
oon to threaten the stability of the
Nigerian communities and the long-established Nigerian administration. I
n the actual circumstances the
granting of permits by Cameroon was part of a pattern of attempted usurp
ation of a pre-existing Nigerian title.
3.291 In fact as time went by the two States evolved a modus vivendi in relation to oil activities in the Bakassi
region and, for this reason alone, it would be inappropriate to treat th
e granting of permits in this region as
evidence of title.
Commentary on Chapter 5 § 2 of Cameroon's Reply entitled "Economic Geography"
Para No
5.14 "Oil prospecting effectively started with the granting of licence H
-14 Rio del Rey to Elf Serepca on 27 th
May 1964."
In January 1961, Nigeria's Block OML 10 (a Shell/BP concession - see Fig 3.22 below) extended from the
west bank of the Cross River Estuary, right across the Bakassi Peninsula
and the Rio del Rey, and into
Cameroonian coastal areas. There is no evidence to indicate that any pro
specting by Cameroon licensees was
actually carried out onshore.
"The licence extends over the southern part of the Bakassi Peninsula and
the off-shore part of
the Rio del Rey, covering a surface area of 2,950 km 2 ."
The original concession did extend over those areas, but was reduced by
the grant of further concessions. The
true area disclosed in Annex RC-14 is 2,650 km 2, not 2,950 km .
"This area was reduced to 1,475 km 2upon renewal of the licence in 1968".
The order to renew the permit was actually dated September 1969.
"Elf Serepca drilled four wells between 1967 and 1968."
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All these four wells were drilled over 20 km offshore.
"From 1969 to 1975 five seismic surveys, each lasting at least two month
s, were carried out by
Elf Serepca and Pecten."
It is probable that all 5 seismic surveys were offshore.
"A programme involving the drilling of 25 wells was also begun during th
is period, resulting in
the discovery of the Asoma, Betika and Kole oils fields in the early 197
0s. Prospecting
intensified during these years."
All the wells drilled between 1969-1975 were offshore. The Asoma, Betika
and Kole oil fields are all offshore.
"In the space of 12 years (1976-1988) some 140 prospecting and apprais
al wells and almost 50
development wells were drilled."
In the period 1976 -1988 (see Fig 6), only 10 out of over 150 wells were drilled onshore: all of these wel
ls
were drilled in the period 1979-1982. There is some uncertainty as to wh
o drilled these wells. None of them
have led to commercial production.
5.15 "Between 1977 and 1990 Cameroon granted six mining licences (1 pro
specting licence and 4 concessions
for liquid or gaseous hydrocarbons) to various oil companies in the are
a in question (Annex CR 41):
Mining licence Date of grant Company Surface area
Ekundu concession 18th August 1977 Elf Serepca 170 km 2
Mokoko Abana 14th April 1981 Pecten Cam Tepcam 98 km 2
concession
Moudi concession 7thJuly 1981 Tepcam then Perenco 215 km 2
th 2
Kita Eden concession 13 October 1980 Elf Serepca 185 km
Licence H-60 30th August 1990 Elf Serepca 845.8 km 2
Sandy Gaz Elf Serepca"
The Ekundu, Mokoko Abana, Moudi and Kita Eden permits are wholly offshor
e.
H-60 appears to be in six separate portions, the result of several phase
s of relinquishment and re-award. Whilst
one of these appears to cover onshore areas it is quite unclear what the
licensing status is for that area.
The Sandy Gaz permit straddles onshore and offshore areas but, again, th
e licensing status is unclear.
"One single oil-related incident is worthy of note: in November 1989 a N
igerian army helicopter
flew over the Betika West well drilling site obliging the operator Elf S
erepca to withdraw its
drilling rig."
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Cameroon has failed to provide any evidence of this incident. The IHS da
tabase (see the Appendix to Chapter
10 for reference to this database) has no reference to any Betika well
being drilled in the late 1980s.
"In total, since the start of oil exploration in 1964, the zone off the
Bakassi peninsula has seen
considerable prospecting under the authority of the Cameroon government.
It is now covered by
a hydrocarbons concession (Sandy Gaz), two prospecting licences (perm
it H-60 and H-59) and
three blocks, OLHP 9 and 10 and MLHP 9 resulting from former licences no
s. H37 and H 35
(see Maps R 24 and R 25 reproduced in Chapter 9 of the present Reply).
"
Whilst all of these concessions include onshore areas, the MLHP and OLHP
licences were offered in the 1999
Cameroon Third Licensing Round (in which, OLHP-9 was referred to as OLH
P-6, and OLHP-10 as OLHP-7).
"It is this peaceful economic activity, essential to Cameroon's future,
which is being
compromised by Nigeria's military operations and unwarranted claims."
This statement begs the essential question of proof of title to Bakassi:
in any event the reality is that
Cameroon's offshore industry has not been affected at all and 95% of Cam
eroon's oil production is based
offshore. The remaining 5% produced onshore does not include Bakassi.
(v) The Gazetteer published by the Director of Federal Surveys
3.292 In 1965 the Director of Federal Surveys of Nigeria published a Gazetteer in several volumes. Section IV
of Volume II is devoted to Eastern Nigeria. It lists the following locat
ions sited in the Bakassi region: Abana,
Hanley Point and Sandy Point (see Fig. 3.24). These places are all described as villages and the precise co-
ordinates are given (Annex NR 102).
3.293 The Gazetteer is obviously authoritative, and its very nature and purpose dictate tha
t it is a reliable
source concerning the realities on the ground in Bakassi five years afte
r Independence. The evidential value of
this source depends upon its having an expert provenance and being based
upon contemporaneous data.
(xxiii) Conclusion: the Elements of Historical Consolidation
3.294 The various elements constituting the process of historical consol
idation of title can now be
summarised:
(1) The original title of the City States of Old Calabar.
(2) The attitude and ethnic affiliations of the population of the Baka
ssi Peninsula.
(3) The Efik and Effiat toponymy of the Bakassi fishing villages.
(4) The administration of Bakassi as part of Nigeria in the period 191
3 to the date of Independence.
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(5) The exercise of authority over the villages and clans of Bakassi b
y traditional Rulers either based in
Calabar or otherwise owing allegiance to Nigeria.
(6) The exercise of jurisdiction by customary law courts by virtue of
Nigerian legislation.
(7) The long-established settlement of nationals of Nigeria in the reg
ion.
(8) Manifestations of sovereignty by Nigeria after Independence in 196
0.
3.295 To these elements may be added two others: acquiescence and recogn
ition. These significant elements
will be examined in the following two sections.
D. The Acquiescence of Cameroon in face of the Peaceful Exercise of Sove
reignty by Nigeria
(xxiv) The Legal Relevance of Acquiescence
3.296 As Nigeria indicated in the Counter-Memorial, acquiescence has three distinct roles. In the first place,
acquiescence forms a very significant element in the process of historic
al consolidation of title. Thus its first
(but by no means exclusive) role is played alongside the elements of h
istorical consolidation reviewed above.
3.297 The second role of acquiescence is that of confirming a title on t
he basis of the peaceful possession of
the territory concerned, that is to say, the effective administration of
the Bakassi Peninsula by Nigeria, acting
as sovereign, and an absence of protest.
3.298 In the third place, acquiescence may be characterised as the main
component of title, that is, providing
the essence and very foundation of title rather than a confirmation of a
title logically anterior to and
independent of the process of acquiescence. There can be no doubt that i
n appropriate conditions a tribunal
can properly recognise a title based upon tacit consent or acquiescence.
3.299 The relevant jurisprudence of the Court is set forth in the Counter-Memorial, pages 260-1, paragraphs
10.124-10.127.
(xxv) The Evidence of Acquiescence by Cameroon in face of the Exercise
of Sovereignty by Nigeria
3.300 The evidence of acquiescence by Cameroon is set forth in Nigeria's
Counter-Memorial, pages 267 to
280. This examination of the evidence in a temporal sequence resulted in
three conclusions, which were as
follows:
First, until 1972 the Government of Cameroon acquiesced in the long-establishe
d Nigerian administration of
the Bakassi region. From 1972 onwards, there were various Cameroon initi
atives, and, in particular, the
project for the renaming of villages, which clearly demonstrate the prev
ious absence of a Cameroonian
administration. On the ground there were sporadic Cameroonian activities
which did not result in the
establishment of effective or exclusive Cameroon control in the region.
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Secondly, at no stage did Cameroon exercise peaceful possession. From the time of
Independence in 1960
until 1972 the Government of Cameroon failed to challenge the legitimate
Nigerian presence in the region. In
the years after 1972, in spite of a growing intrusiveness on the part of
Cameroon, this late development of an
expansionist policy (almost certainly related to the prospects of petro
leum exploration) could not erase the
effects of the earlier attitude of acquiescence.
Thirdly, this assessment receives general confirmation from the passages of the
Cameroon Memorial which
are concerned 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 related to the years 1976 and later.
3.301 A striking characteristic of the Cameroon Reply is that it avoids making any detailed comment upon the
evidence of Cameroonian acquiescence set forth in the Counter-Memorial at pages 267 to 280: see, in
particular, the Reply, p. 312, paragraph 5.236. In another section of the Reply (at pages 92-94) Cameroon
purports to examine the acts of acquiescence 'alleged by Nigeria'. In th
is section Cameroon avoids dealing
with specific issues of fact and law and instead resorts to abstract leg
al argument, ignoring the actual evidence.
3.302 Similarly, in the section of the Reply relating to "the role of protests" (pages 94 to 97), there is an
avoidance of an examination of the actual evidence advanced by Nigeria.
Moreover, the Reply makes a partial
admission, when it states:
"Il est vrai que le gouvernement camerounais n'a pas toujours protesté
contre les
violations de son territoire commises par les autorités nigérianes
ou par des
particuliers avec l'appui de ces autorités. Mais on ne saurait déduire d'une
passivité dans un nombre de cas limité des conséquences juridiq
ues négatives
pour le Cameroun. Premièrement, la présentation des faits par le N
igéria n'est pas
correcte. Le Cameroun, a bien envoyé de nombreuses notes de protestat
ion au
gouvernement nigérian (v. infra, par exemple, chapitre 5, pars. 5.233 - 5.234, et
chapitre 11, pars. 11.94 - 11.99 et par. 11.216). De plus, le Cameroun
a défendu
ses droits sur Bakassi et la région de Darak, non seulement par des a
ctes
diplomatiques au niveau intergouvernemental, mais aussi par des actes d'
autorité
manifesant sa souveraineté. Ainsi, l'envoi de gendarmes et de soldats
, que le
Nigéria mentionne lui-même (v. CMN, vol. I, p. 263, par. 10.129)
, n'était
nullement une action de harcèlement, mais constituait au contraire l'
exercice
légitime de la souveraineté territoriale. Le Cameroun a toujours d
éfendu ses droits
par sa présence sur les lieux et sa ferme opposition aux ambitions an
nexionnistes
57
poursuivies par le Nigéria." (Reply, pp. 94-5, paragraph 2.153; emphasis added).
3.303 But these qualifications do not add up to very much. When one turn
s to pages 311 to 312 (paragraphs
5.233-5.234) of the Reply, there is a list of 'official protests' by Cameroon "à l'occasion d'
incidents sur
Bakassi". This short section should be read in conjunction with the pass
age of the Reply quoted in the previous
paragraph: the two passages of the Reply are complementary.
3.304 The Reply of Cameroon presents a list of seven protests covering the period 1970 to 1994. Only one
protest listed is earlier than 1980. This relates to 1970 and concerns a
maritime incident which took place at
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the entrance to the Rio de Rey, off Inua Abasi: see Annex RC 20. The cir
cumstances lying behind the alleged
incident are obscure and the relevant Note raises no issue concerning ti
tle to Bakassi.
3.305 The second protest, dated 13 October 1980, makes the assertion tha
t "Jabane" is under Cameroonian
sovereignty: see Annex RC 51 (second item). This appears to be the fir
st Cameroonian protest (in this list)
directly related to the issue of sovereignty over Bakassi.
3.306 The third protest, dated 17 August 1985, relates to the intercepti
on of a Cameroonian pirogue by a
Nigerian customs vessel at the 'forisane fishery': OC, Livre II, Annex 1
, pp. 382-3. The incident, according to
the Cameroon Reply, implied that "Idabato" was Nigerian.
3.307 The next document relates to the arrest of a Cameroonian trawler.
The circumstances of the arrest
remain obscure and the issue of sovereignty over Bakassi was not involve
d: see Annex RC 146, dated 18 July
1986.
3.308 The Cameroon Note of 25 March 1988 relates to an incident near the
Kole oil terminal some 25
kilometres offshore, and the protest bears no relation to the question o
f sovereignty over Bakassi: see Annex
RC 170.
3.309 The final protest invoked in the Cameroon Reply provides no more than confirmation of the exercise of
sovereignty by Nigeria in the principal villages. This protest, dated 16
May 1991, relates to the 'persistent
presence' of Nigerian police at Abana (Annex NC-M 220). The other docu
ment cited (referred to as Annex
NC-M 328) cannot be identified.
E. Recognition and Admissions by Cameroon in face of the Peaceful Exerci
se of Sovereignty by Nigeria
3.310 The conduct of Cameroon has been the subject of a preliminary exam
ination in the Counter-Memorial,
pages 280 to 284. When in 1968 the Nigerian fishing port of Abana was at
tacked by Cameroonian security
forces, the Nigerian Government promptly protested the violation of Nige
rian sovereignty: Annex NC-M 206.
A further episode of harassment in 1970 was also the subject of protest:
Annex NC-M 207. This activity by
Cameroon was not accompanied by any assertion of sovereignty in response
to the Nigerian protests.
3.311 In the period after Independence, the Bakassi Peninsula was admini
stered as a part of Nigeria à titre de
souverain, was inhabited by Nigerian nationals, and had exclusively Nigerian soci
al and economic affiliations.
In these proceedings Cameroon now claims that she has consistently exerc
ised sovereignty in the region. But,
if this were really the case, there would have been a series, a pattern,
of protests in face of the Nigerian
presence.
3.312 The actual incidence of protests confirms the view that the admini
stration of the region by Nigeria after
Independence was not contested by Cameroon until a considerable number o
f years had elapsed. The Nigerian
presence was public in every way and involved the exercise of authority
over a substantial population. In the
event the first Cameroon protest was sent on 15 September 1969: Annex NC
-M 148. This refers to the
building of a primary school (by 'the Religious authorities of Nigeria'
) at 'Abana, in Cameroun territory'. No
reference is made to the extent of the Cameroon claim.
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3.313 The next relevant item is a Note Verbale dated 13 October 1980: An
nex RC 51.
3.314 There is also a Cameroon Note dated 31 December 1976 (Annex NC-M
216) relating to an incident at
Abana. It is to be noted that in the Reply Cameroon omits this item from the list of 'official protests' recorded
in the Reply at pages 311 to 312, paras. 5.233-5.234. The first relevant protest in
this list is the Note Verbale
dated 13 October 1980 (Annex RC 51).
F. The Alleged Evidence of Nigerian Acquiescence : A Rebuttal
(w) Introduction
3.315 The Cameroon Reply seeks to establish that Nigeria has, by its conduct, acquiesced in the
claims of
Cameroon. The evidence offered is inconclusive and in some cases wholly
irrelevant. Moreover, the
diplomatic background and chronology present an ambience which strongly
militates against any possibility of
Nigerian acquiescence. Cameroonian incursions in 1968 and 1970 were met
with prompt and decisive
Nigerian protests: see above, paragraph 3.307, and the Counter-Memorial, pages 267 to 269, paragraphs
10.155-10.161.
(x) The Termination of Trusteeship
3.316 In the first place, Cameroon invokes the transactions of 1961 rela
ting to the termination of the regime of
trusteeship: see the Reply, pp. 89-91, paragraphs 2.140-2.143. In this context three points stand
out. First, the
transactions and the related instruments involved changes of status and
a process of State succession. They
were not related to localised questions. Secondly, in any event there is
no sufficient evidence to prove that the
Bakassi villages took part in the plebiscite involved in the transitiona
l arrangements: see above paragraphs
3.181-3.186. And, thirdly, the outcome could hardly be decisive in relat
ion to a process of historical
consolidation of title the critical phase of which occurred after the In
dependence of Nigeria.
(y) The Alleged Activities of the Consul-General at Buea
3.317 Secondly, Cameroon seeks to rely upon the activities of the Nigeri
an Consul-General at Buea: see the
Reply, paragraph 2.145, and pages 315-19.
3.318 Such activities involved the routines of a low-ranking official wh
ich were by nature unrelated to the
issue of sovereignty. Consular officials are not mandated to deal with i
ssues of title to territory. The general
character of the duties of consular officers is described in a passage f
rom Hall approved by Dr. Clive Parry,
the distinguished editor of the British Digest of International Law, as follows:
"Consuls are persons appointed by a state to reside in foreign countries
, and
permitted by the Government of the latter to reside, for the purpose par
tly of
watching over the interests of the subjects of the state by which they a
re
appointed, and partly of doing certain acts on its behalf which are impo
rtant to it
or to its subjects, but to which the foreign country is indifferent, it
being either
unaffected by them, or affected only in a remote and indirect manner. Mo
st of the
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duties of consuls are of the latter kind. They receive the protests and
reports of
captains of vessels of their nation with reference to injuries sustained
at sea; they
legalise acts of judicial or other functionaries by their seal for use w
ithin their
own country; they authenticate births and deaths; they administer the pr
operty of
the subjects of their state dying in the country where they reside; they
send home
shipwrecked and unemployed sailors and other destitute persons; they arb
itrate on
differences which are voluntarily brought before them by their fellow-
countrymen, especially in matters relating to commerce, and to disputes
which
have taken place on board ship; they exercise disciplinary jurisdiction,
though not
of course to the exclusion of the local jurisdiction, over the crews of
vessels of the
state in the employment of which they are; they see that the laws are pr
operly
administered with reference to its subjects, and communicate with their
government if injustice is done; they collect information for it upon co
mmercial,
economical and political matters. In the performance of these and simila
r duties
the action of a consul is evidently not international. He is an officer
of his state to
whom are entrusted special functions which can be carried out in a forei
gn
country without interfering with its jurisdiction." (Hall, International Law (4th
58
ed., 1895), pp. 330-1)
3.319 The authoritative treatise by Patrick Daillier and Alain Pellet de
scribes consular duties in essentially
similar terms:
"Les consuls et les postes consulaires ne sont pas chargés d'un rô
le de
représentation politique. Leurs fonctions revêtent un caractère
purement
administratif.
Ce caractère remonte à l'origine de l'institution consulaire. C'es
t en effet au XII e
siècle, au moment où les peuples commençaient à entrer dans
la voie des
échanges économiques, que les premiers consuls furent désigné
s par les
Républiques italiennes et envoyés dans les ports de pays du Levant
. Leur mission
était alors limitée au contrôle du mouvement des bateaux de leu
r nationalité et à la
protection de leurs compatriotes.
Aujourd'hui, selon l'article 5 de la Convention de 1963 qui codifie les
anciennes
pratiques, les consuls sont principalement chargés de protéger dan
s l'État de
résidence les intérêts de l'État d'envoi et de ses ressortis
sants, personnes
physiques et morales; de favoriser le dévelop-pement des relations co
mmerciales,
économiques, culturelles et scientifiques entre l'Etat d'envoi et l'É
tat de résidence;
d'exercer certaines fonctions concernant les nationaux se trouvant dans
l'État de
résidence (état civil, assistance judiciaire et parajudiciaire, d
élivrance des
passeports); d'accorder des visas aux personnes étrangères qui dé
sirent se rendre
dans l'État d'envoi; de surveiller les bateaux, navires, aéronefs
et leurs équipages
59
en provenance de l'État d'envoi et de leur prêter assistance."
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3.320 This formulation by Professors Daillier and Pellet places emphasis
on the purely administrative nature
of consular functions. The functions of the Consul-General consisted onl
y of routine administrative acts which
were completely divorced from the issues of boundaries. In the present c
ase the consular officers had no
authority, express or implied, to make assessments of questions of sover
eignty.
3.321 In the final analysis, the assumptions made by the consuls were ba
sed upon a fundamental error, an
error in which they were undoubtedly encouraged by their Cameroonian col
leagues and security escorts.
(z) The Visit of the Nigerian Ambassador to Atabong in 1986
3.322 The Cameroon Reply (page 319, paragraph 5.264) refers to a visit by the Nigerian Ambassa
dor to
Idabato (West Atabong) in 1986. The only document cited in this respec
t (Annex RC 149) is an itinerary for
the tour prepared by the staff of the Consul-General in Buea. There is n
o evidence that a visit to West Atabong
actually took place and no indication of the source of the itinerary. In
any event the Consul-General had no
authority to make determinations as to title to territory.
(aa) The Attitude of the Nigerian Local Authorities
3.323 Cameroon also asserts that the Nigerian local authorities had know
ledge of a Cameroon presence and
that this knowledge constituted evidence of acquiescence: see the Reply, page 312, paragraph 5.238. This
contention is inherently weak. Knowledge does not constitute consent, an
d the critical fact is that Nigeria
protested promptly in face of Cameroon incursions into Nigerian territor
y: see above, paragraph 3.307. These
protests of 1968 and 1970 were ignored by Cameroon.
3.324 Even if it were the case that local officials did not report or pr
otest in reaction to every incident
involving Cameroonian police or security forces, this would not constitu
te acquiescence in legal terms.
(bb) Map Evidence
3.325 In the context of the Cameroon argument based upon acquiescence, c
onsiderable reliance is placed upon
map evidence: see the Memorial, pages 258-321. In this respect the Reply (page 313, paragraph 5.239) relies
upon the material presented in the Memorial.
3.326 For present purposes the map evidence relating exclusively to the
question of Bakassi will be
considered. The relevance of map evidence to other sectors of the litiga
tion will be considered in the
appropriate context.
3.327 As a further preliminary point, it is to be emphasised that the le
gal context is the Nigerian claim to title
based upon historical consolidation of title, either as an autonomous ba
sis of title, or as a confirmation of the
original title to the Bakassi Peninsula inherited by Nigeria at the time
of Independence.
3.328 It must follow that the map evidence prior to the Independence of
Nigeria in 1960 is not of direct
relevance to the position in the period 1960 to 1994.
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3.329 It must also follow that the map evidence can hardly be conclusive
of the issue of sovereignty on the
basis of historical consolidation of title. In this particular legal con
text, if there is a difference between the map
evidence and the administrative and social status quo on the ground, it would be legally inappropriate, and
incongruous on other grounds, to afford a decisive role, or indeed any r
ole, to the map evidence.
3.330 The Government of Nigeria does not intend to trouble the Court wit
h a collection of judicial
assessments of map evidence. For the reasons advanced below, Nigeria con
siders that map evidence cannot
overrule the administrative status quo on the ground, and therefore many of the precedents concerning map
evidence are simply not applicable in the circumstances of this case.
3.331 However, the following assessment by the Chamber in the Frontier Dispute case is particularly apposite:
"Whether in frontier delimitations or in international territorial confl
icts, maps
merely constitute information which varies in accuracy from case to case
; of
themselves, and by virtue solely of their existence, they cannot constit
ute a
territorial title, that is, a document endowed by international law with
intrinsic
legal force for the purpose of establishing territorial rights. Of cours
e, in some
cases maps may acquire such legal force, but where this is so the legal
force does
not arise solely from their intrinsic merits: it is because such maps fa
ll into the
category of physical expressions of the will of the State or States conc
erned. This
is the case, for example, when maps are annexed to an official text of w
hich they
form an integral part. Except in this clearly defined case, maps are onl
y extrinsic
evidence of varying reliability or unreliability which may be used, alon
g with
other evidence of a circumstantial kind, to establish or reconstitute th
e real
60
facts."
3.332 It would be especially inappropriate to give priority to the map e
vidence in the present case. The map
evidence, in so far as it relates to Bakassi, is not based upon direct k
nowledge of the situation. The maps are
all compiled maps, repeating the assumptions of other map makers. 61 There cannot be a focus upon the
question of title to Bakassi in such circumstances. And this is particul
arly true when the Bakassi region
represents a very minor feature on maps of small scale.
3.333 Against this background the map evidence presented by Cameroon can
be analysed. Nineteen maps
appear to support the Cameroon position: M 11, M 12, M 13, M 17, M 20, M
21, M 51, M 55, M 57, M 60, M
71, M 80, M 81, M 86, M 87, M 88, M 89, M 91 and M 92.
3.334 All of these maps are compiled from other sources. Nearly all are
of small scale. None of these maps
was prepared by experts concerned with highly localised and specialised
issues of sovereignty.
3.335 Of the maps relied upon by Cameroon, two (M 11 and M 80) are Cam
eroonian official maps of late date
(1976 and 1989) and therefore self-serving. Three of the maps relied u
pon by Cameroon are maps published at
or soon after the Independence of Nigeria (M 51, M 17, and M 20), in o
ther words very early in the period of
historical consolidation.
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3.336 Several of the maps relied upon by Cameroon emanate from the Feder
al Surveys of Nigeria, namely, M
17 (1963), M 60 (1968), M 20 (1960), and M 21 (1972). These maps
are of very small scale with the
exception of the Calabar sheet (M 17), published in 1963. It is import
ant for the Court to note that the general
indication of the boundary status quo on these maps is firmly contradicted by the Gazetteer published by the
Director of Federal Surveys in 1965: see Annex NR 102. Section IV of Vol
ume II is devoted to Eastern
Nigeria. The Gazetteer lists three locations in the Bakassi Peninsula: Abana, Hanley Point and
Sandy Point.
Each location is described as a village and the co-ordinates are given.
3.337 It must be obvious that the Gazetteer reflects the political and social reality in the Bakassi Peninsula five
years after Independence and not the work of the compilers of small scal
e maps. None of the villages listed in
the Gazetteer as forming part of Eastern Nigeria are marked on the maps relied upon b
y Cameroon. The
Government of Nigeria submits that the Gazetteer provides the expert evidence in this respect and not the
maps.
3.338 There are three maps favourable to the position of Nigeria, as fol
lows:
M 18a: Administrative Map of Nigeria, 10 thedition, 1990, Federal Survey, Lagos.
M 90: Cross River State, 1991.
M 93a: Map of Nigeria, 1992.
(cc) The Resolution of a Local Dispute
3.339 As further evidence of acquiescence, Cameroon refers to an episode
in which a 'local dispute' between
Otu and Ekang was settled, it is said, in favour of Cameroon in 1962: se
e the Reply, pages 313-15, paragraphs
5.240-5.248. This argument is difficult to follow as a matter of princip
le. But in any event the evidence is
worthless because the two locations referred to are far to the north of
Bakassi region: see Fig. 3.25 and RC
Vol. II, Map 25.
(dd) Conclusion
3.340 In summary Nigeria rejects the suggestion that she has, by her con
duct, or otherwise, acquiesced in the
claims of Cameroon.
G. Conclusion
3.341 The evidence of the process of the consolidation of Nigerian title
in the Bakassi Peninsula does much
more than reflect a particular legal doctrine or concept. The evidence h
as the important quality of translating
possession as a basis of title into a pattern of human relations and of
direct connections between the
communities living in Bakassi and the Nigerian mainland. The carapace of
State activities and civil
administration reflects the pattern of human relations.
3.342 The possession exercised by Nigeria since Independence consists of
a pattern of political, social, ethnic
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and economic relationships. These are longstanding and reflect the exist
ence of an original title inhering in
Nigeria and its predecessors, the City States of Old Calabar.
3.343 The pattern of relations between Bakassi and the mainland of Niger
ia includes the following elements:
(1) The historical affiliations;
(2) The ethnic affiliations involving the Efik and Effiat groups and c
lans;
(3) The religious connections with churches on the mainland;
(4) The activities of the Ekpe Society and other associations;
(5) The exercise of authority by the traditional rulers, functioning a
s a public order system;
(6) The functioning of the Nigerian customary court system in Bakassi;
(7) The settlement of Nigerian nationals over a long period;
(8) The exclusively Nigerian character of the economic life of the reg
ion and the use of Nigerian currency;
(9) The maintenance of public order and also a Nigerian security prese
nce, both military and naval;
(10) A pattern of peaceful routine administration, including taxation,
census taking, participation in elections,
development and public works, and postal administration.
3.344 The practical and human aspects of the Nigerian administration are
illustrated very well in the evidence
concerning schools. Cameroon has failed to provide evidence of a single
school in the Bakassi region run by
the Cameroon authorities. The absence of schools constitutes a powerful
contradiction of the Cameroonian
claim to sovereignty, more especially in a region which has long been po
pulated.
3.345 The crucial fact is that, after the presentation of two written pl
eadings, the evidence offered by
Cameroon concerning the exercise of sovereignty in the Bakassi Peninsula
is demonstratively inadequate. The
Court is respectfully referred to the table relating to the evidence. Th
is is based upon twenty categories of state
activity. In relation to eight categories, Cameroon has presented no evi
dence of any kind. In relation to a
further eight categories, Cameroon makes assertions but provides no docu
mentary evidence.
Acts of Nigerian Assertion by Cameroon Documentary evidence relating to such
relating to such acts of acts of administration produced by
Administration on administration Cameroon
Bakassi
Use of the Nigerian No reference -
Currency
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Exercise of Authority No reference -
by Traditional Rulers
Jurisdiction of Reference made No documentary evidence produced
Customary Law
Courts MC para.4.451
Exercise of Military No reference -
Jurisdiction
Maintenance of Reference made No documentary evidence produced
Public Order
MC para.4.444
Exercise of Civil Reference made No documentary evidence produced
Jurisdiction
MC para. 4.450
Taxation Reference made The Court is respectfully referred to
paras. 3.170-3.174 of this Rejoinder
MC paras. 4.436, 4.446-4.449
Reply para. 5.228
Census Taking Reference made No documentary evidence produced
MC para. 4.443
Delimitation of Reference made Annex MC 266
Electoral Wards
MC para.4.442
Letters of No reference -
Administration
Participation in No reference -
Parliamentary
Elections
Immigration No reference -
Public Education Reference made No documentary evidence produced
MC para. 4.453
Public Works and Reference made No documentary evidence produced
Development
Administration MC para. 4.454
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Provision for Public Reference made MC made The Court is respectfully referred to
Health MC para. 4.452 paras. 3.235 and 3.237 of this Rejoinder
RC para. 5.232 and Annex RC
197
Local Administration Reference made The Court is respectfully referred to
paras. 3.235-3.237 of this Rejoinder
MC paras. 4.430-4.443
Exercise of No reference -
Ecclesiastical
Jurisdiction
Collection of Reference made No documentary evidence produced
Customs Duties
MC para. 4.445
Postal Administration No reference -
Licensing of Canoes No reference -
3.346 In summary, out of twenty categories of evidence of the exercise o
f sovereignty, Cameroon produces no
evidence in relation to seventeen categories.
3.347 Reference is made to documentary evidence only in connection with
taxation, health and local
administration. The Cameroon Memorial devotes several passages to taxation (at pages 493 to 494, paragraphs
4.446 to 4.449). The Government of Cameroon refers to only one document
: Annex MC 255. This consists of
a record of taxes collected for the years 1980 to 1982. This document is
the only document which indicates
that taxes were actually collected and it relates to a period twenty yea
rs after Independence. In contrast,
Nigeria has provided evidence of tax collection for the period commencin
g in 1967-8 and Cameroon
acknowledged the collection of taxes by Nigeria in December 1964: Annex
NC-M 167.
3.348 The Reply of Cameroon adds very little to the evidential picture. Two documents a
re referred to. The
first is Annex RC 18, a report dated 28 February 1969. This document mak
es clear that the inhabitants of
Atabong are Nigerian. It also establishes two other facts: that the inha
bitants had habitually resisted paying
taxes and also that Cameroon did not provide any social services in this
area.
3.349 The second document referred to in the Reply is Annex RC 34. This document (dated October 1972)
refers to tax collection at Tiko. Tiko is a place located north-east of
Victoria, more than 90 kilometres from
Bakassi. The document thus has no relevance.
3.350 On health, only one document (Annex RC 197), has been produced b
y Cameroon. That document, as
was pointed out in paragraph 3.234 above, is programmatic only.
3.351 In relation to the issue of local administration, the relevant pas
sages of the Memorial of Cameroon have
been analysed in the Counter-Memorial, at page 264. It is there pointed out that there is an absence of proof
of
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actual acts of administration. The Cameroon Reply does not add very much: see pages 307 to 310. Thus, the
materials relied upon by Cameroon in the context of the evidence of loca
l administration demonstrate that
there was little or no reality behind the legislation purporting to esta
blish an administration. As the Table
shows, for a long time after Independence it was Nigeria which was exerc
ising practical authority in the
Bakassi region.
3.352 In this context it is helpful to recall the 'fundamental principle
' propounded by Sir Gerald Fitzmaurice
according to which 'greater probative force' is 'attributable to a State
's acts and conduct than to its professions':
British Year Book, Vol. 32 (1955-6), pp. 63-4. As Fitzmaurice points out, the Court in
the Minquiers case laid
stress on the concrete evidence 'which relates directly to the possessio
n of the ... groups': see the Minquiers
case, I.C.J. Reports, 1953, p. 55. Much of the Cameroonian evidence of a
dministration is not concrete but
theoretical, as the documents analysed above clearly demonstrate.
3.353 The importance of stability in boundary matters is often stressed
and the Government of Nigeria has
major concerns in this regard. The recognition of the political, social
and economic status quo in the Bakassi
region by the Court will militate in favour of continuity and stability
in the affairs of the region, including the
adjacent States of Nigeria of which Bakassi forms a part. The rationale
of the principle of historical
consolidation is precisely the preservation of a well-established condit
ion of things in the context of the
determination of title to territory.
3.354 The evidence thus amply substantiates the four bases of the Nigeri
an claim to title over the Bakassi
Peninsula, namely:
(1) Long occupation by Nigeria and by Nigerian nationals constituting
an historical consolidation of title and
confirming the original title of the Kings and Chiefs of Old Calabar whi
ch title vested in Nigeria at the time of
Independence in 1960.
(2) Effective administration of Bakassi by Nigeria, acting as sovereig
n, and an absence of protest.
(3) Manifestations of sovereignty by Nigeria together with the acquies
cence by Cameroon in Nigerian
sovereignty over the Bakassi Peninsula.
(4) Recognition of Nigerian sovereignty over Bakassi by Cameroon.
As Nigeria has already observed, these four bases of claim apply both in
dividually and jointly. In the view of
the Nigerian Government, each of the bases of title would be sufficient
on its own.
__________
1 Recueil des Cours, Vol. 163 (1976, V), p.9 at pp. 68-69; footnotes omitted: "2. The mea
ning of these necessary and
fundamental principles is perfectly clear: it is contrary to internation
al law to use force to challenge the boundaries of a
State and thus do damage to its territory by dismembering it. But one ca
nnot go beyond that, so as, by sliding,
sometimes deliberately, down an almost unnoticeable slope, to extend the
principles of territorial integrity and the
inviolability of boundaries, to confound and confuse them with the disti
nct concepts of the immutability and
intangibility of dividing lines. In other words, if boundaries are invio
lable, they are not immutable, and their
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intangibility can in no way constitute a mandatory rule of jus cogens.
To claim, as has frequently been done, that the Charter of the OAU and t
he Cairo resolution consecrate the principle of
the intangibility of boundaries is an abuse of language. The draftsmen o
f these texts never said that the boundaries of
the African States, as they existed at the moment of their accession to
independence, were fixed forever and could not
be modified by peaceful means; they merely said that they must be "respe
cted", i.e. that they may in no circumstances
be challenged by force, in conformity with the principle of territorial
integrity.
Is it necessary to remind ourselves that in international law submission
to the text is the cardinal rule of all
interpretation and that, as Anzilotti noted, 'every rule must be taken i
nto account for what it really contains, without
extending or restricting its sense'."
2 I.C.J. Reports,. 1992, p. 565, para. 345; and see further NC-M, para.
10.6.
3 I.C.J. Reports, 1986, pp. 632-33, para. 148.
4 Copies of the 1963 Constitution and 1967 Decree will be lodged with th
e Court.
5 I.C.J. Reports 1951, pp. 138-9.
6 "The Validity of the Maroua Declaration. The Nigerian side underscored
the importance of this matter and pointed
out that the position of the Nigerian Government on this question is wel
l known by the Cameroon Government. The
Nigerian delegation indicated that as far as the Maroua Declaration is c
oncerned, the Nigerian Government never
ratified the agreement and consequently, in Nigeria's view, it is not bi
nding on Nigeria.
The Cameroonian side took note of the Nigerian position but stated in it
s view, that, the said declaration is valid and the
Cameroon Government has never been formally notified of the Nigerian pos
ition.
The Nigerian side underscored the necessity for the two countries to agr
ee on a realistic framework for negotiations at
the meeting scheduled for Abuja." (Annex NPO 52).
7 Annex NPO 55 and NR 173, below.
th
8 Droit international public, 6 ed., Paris, 1983, p. 207 (emphasis in the original): "It was also tho
ught possible,
following a dictum of the ICJ in the Fisheries case (1951, p. 116) and the work of C. de
Visscher, to present a different
legal analysis of the facts relating to the exercise of sovereignty, rel
ying on historical consolidation based on long
usage. This would be distinguished from prescription because the latter can only take effect against any adverse claim,
from occupation because it also applies to maritime areas, and from recognition, the effect of which is instantaneous. It
would depend upon a sufficiently long absence of opposition from the int
erested States; here the time factor would play
an essential part. Consolidation would work simultaneously for the maint
enance and for the acquisition of territorial
sovereignty; it would permit an imperfectly established sovereignty (inchoate title, case of the Island of Palmas cited
above), to be perfected.
This concept was expounded by C. de VISSCHER, in particular in "Les effe
ctivités en DI public", p. 107, and "Le
régime des confins", p. 128, as well as by other authors such as Y.Z.
Blum "Historic titles in IL", (The Hague, Nijhoff,
1965). It has all the merits of a portmanteau conception, applicable to
all the hypotheses while emphasising the
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importance of the effective exercise of sovereignty when the latter is p
ossible. It confers no right upon such an exercise
of sovereignty when it meets with opposition."
9 Recueil des Cours, Vol. 183 (1983-V), pp. 147-8 "d) The Consolidation of title
Faced with contradictory claims to sovereignty over a territory, advance
d in reliance on very diverse titles which are
sometimes difficult to separate out, the international case law, both ar
bitral and judicial, has always attached the
greatest importance to the peaceful and continuous exercise of state com
petences, i.e. to effectivités by state authority,
manifested for the duration.
The continuous exercise of state authority thus makes possible the conso
lidation of a title which, taken on its own,
would not have enabled the holder to acquire the territorial sovereignty
(discovery, contiguity), or to purge a title of an
initial vice (conquest). It can prevail even over a title resulting fr
om a treaty or other legal act (case of the Island of
Palmas, RSA, II, pp. 845 et seq.)."
10 First Award, 9 October 1998, I.L.R. Vol. 114, p.1 at p.117, paras. 45
0-1.
11 9 thed., Vol. I by Sir Robert Jennings and Sir Arthur Watts, 1992, pp. 709-
10, para. 272.
12 See Chapter 1, para. 1.6 et seq.
13 op.cit, p. 100.
14 A copy of this book has been lodged with the Court.
15 See para. 3.64 above for reference to Anderson Report.
16 A copy of this has been lodged with the Court.
17 9 ed., Vol. I, p. 710, para 272.
18 I.C.J. Reports, 1951, p.133.
19 I.L.R. Vol. 50, p.1 at p. 510.
20 ibid., pp. 510-11.
21 I.C.J. Pleadings, Vol. II, p. 161.
22 The original document from which this schedule is taken is Annex NC-M
149.
23 Annex NC-M 153 contains the relevant pages. The full text has been lo
dged with the Court.
24 Annex NC-M 154 contains the relevant pages. The full text has been lo
dged with the Court.
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25 Ine Nkan Okure has a number of different spellings throughout the Nig
eria legislation and documents, eg Nkan
Ekure, Nkanekuwe, Nkane Okure. These have been made consistent throughou
t the text as Ine Nkan Okure, except in
direct quotes.
26 A full copy of this text has been lodged with the Court.
27 Recueil des Cours, Hague Academy, Vol. 92 (1957, II), p. 149.
28 I.C.J. Reports 1992 pp. 470-1, para. 179.
29 I.C.J. Reports 1953 pp. 58-59.
30 ibid., p. 71.
31 See I.C.J. Reports 1992 pp. 418-19, para. 56, p. 515, para. 264.
32 R.I.A.A., Vol. XVII, pp. 558-9 (Opinion of the Chairman).
33 "In accordance with the system of deploying public services, and more
particularly security services, throughout the
Cameroonian territory, there are Gendarmerie and customs services at the
administrative centre of the Division
(Mundemba)and at the administrative centres of the Districts (Bamuso,
Idabato, Ekondo Titi, Mundemba, Kombo
Itindi). At the district level, such as in Idabato, there is only one g
endarmerie unit."
34 I.C.J. Reports 1953, pp. 65, 69.
35 I.C.J. Reports 1975, pp. 45-47, paras. 99-103.
36 I.L.R Vol. 50, p. 1 at p. 461.
37 "The taxes levied in the various fisheries, particularly those at Ida
bato I, Idabato II, Jabane I, Jabane II, Naumsi
Wan, Kombo a Mpungu, Forisane, Kombo a Ngonja, Kombo a Monja, Kombo a Ja
ne, Ine Akarika, Kombo a Kiase,
Kombo Abedimo, Kombo a Billa, amounted to 9,450,000 FCFA for the 1980-19
82 accounting period."
38 I.C.J. Reports 1953, pp. 66, 69.
39 See, for example, I.C.J. Reports 1992, pp. 397-99, paras. 60-62; pp.
542-43, para. 304.
40 I.LR. Vol. 52, p. 93 at p. 222.
41 The School was actually established in 1969 in a local church buildin
g by the Roman Catholic Mission at Uyo (now
in Akwa Ibom State). In 1992, Akpabuyo Local Government Council built a
new building. Mr Michael Edet Okon was
Head Teacher from 1980 to 1992. His statement is at Annex NC-M 185.
42 "Schools built by the Cameroonian Government, at both the primary and
secondary levels, are also found in the
Peninsula. The catholic school in Mundemba, the catholic school in Ekond
o-Titi, and the Primary School in Bamuso
might be mentioned as illustrations at the primary level, and at the sec
ondary level, the Lycée in Mundemba (founded in
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1975), the CES in Issangele (1992) and Bamuso (1992) as regards gen
eral education and the SAR in Mundemba as
regards technical education (the SAR founded in Bamuso proved unviable)
."
43 R.I.A.A., Vol. XVII, p. 557 (Opinion of the Chairman).
44 I.C.J. Reports 1953 p. 69.
45 Annex NC-M 178 contains the relevant pages. A full copy of the text h
as been lodged at the Court.
46 "Lastly, there are ample services to meet the needs of training for f
armers in this area. For example, there is a
Divisional Agricultural Branch at Mundemba, and there are District Branc
hes at Idabato, Issangele and Mundemba, as
well as Agricultural Posts. There are also agricultural posts a little f
urther north [of] the Peninsula, at Akpassang Korup,
Bombage, Meangwe II and Mundemba."
47 I.L.R.Vol. 52, p. 93 at p. 222.
48 Documentary evidence of the administration of the Health Clinic at Abana, for example, is at Annex NR 81.
49 "There are health centres at Issangele, Kombo Abedimo, Idabato and Ja
bane, whose funding normally comes under
the budget of the Ministry of Health."
50 I.C.J. Reports 1992 p. 351 at pp. 397-99 paras. 60-62, pp. 435-6 para
. 123, pp. 469-70 paras. 177-8, pp. 471-2 paras.
180-1, p.516 paras. 265-6, pp. 542-3 para. 304.
51 Copies of written pleadings will be lodged with the Court.
52 I.C.J. Reports 1953 pp. 66, 69.
53 See the Opinion of the Chairman, R.I.A.A., Vol. XVII, pp. 557-8.
54 "Incidentally, it is said that the Nigerians are dissatisfied with se
eing the National Refinery Company going into its
operational phase because they say that it is their oil which we are in
the process of exploiting." (Annex MC 260).
55 "The Validity of the Maroua Declaration. The Nigerian side underscore
d the importance of this matter and pointed
out that the position of the Nigerian Government on this question is wel
l known by the Cameroon Government. The
Nigerian delegation indicated that as far as the Maroua Declaration is c
oncerned, the Nigerian Government never
ratified the agreement and consequently, in Nigeria's view, it is not bi
nding on Nigeria.
The Cameroonian side took note of the Nigerian position but stated in it
s view, that, the said declaration is valid and the
Cameroon Government has never been formally notified of the Nigerian pos
ition.
The Nigerian side underscored the necessity for the two countries to agr
ee on a realistic framework for negotiations at
the meeting scheduled for Abuja." (Annex NPO 52).
56 I.L.R. Vol. 114, p.1 at p.114.
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57 "It is true that the Cameroonian Government has not always protested
against the violations of its territory
committed by the Nigerian authorities or by individuals with the support
of those authorities. But it would be wrong to
draw negative juridical consequences from passivity in a limited number
of cases. First, Nigeria's presentation of the
facts is incorrect. Cameroon did indeed send a number of protest notes t
o the Nigerian Government (see infra, for
example, Chapter 5, paras. 5.233-5.234, and Chapter 11, paras. 11.94-11.
99 and 11.216.) Moreover, Cameroon has
defended its rights over Bakassi and the Darak area, not only by diploma
tic acts at intergovernmental level, but also by
actions manifesting its sovereign authority. Thus the sending of gendarm
es and soldiers, which Nigeria itself mentions
(see NCM Vol. I, p.263, para 10.129) was in no way an act of harassmen
t, but, on the contrary, constituted a legitimate
exercise of territorial sovereignty. Cameroon has always defended its ri
ghts by its presence on the spot and its firm
opposition to the annexionist ambitions pursued by Nigeria.' (emphasis
added).
58 British Digest, Vol. 8, London, 1965, pp. 211-12.
59 Droit international public, 6th ed., 1999, pp. 737-8, para. 466. "Consuls, and their posts, are no
t charged with the
role of political representation. Their functions are purely administrat
ive.
This characteristic dates from the origins of the institution of consuls
. In fact it was in the 12th century, at the time
when peoples were beginning to enter into economic exchanges, that the f
irst consuls were appointed by the Italian
republics and sent to the Levantine ports. Their mission at that time wa
s limited to the regulation of the movement of
vessels of their nationality and the protection of their compatriots.
Today, in accordance with Article 5 of the Convention of 1963, which cod
ifies the long-standing practices, consuls'
main responsibilities are to protect the interests of the sending State
and its nationals (individuals and corporate) in the
State of residence; to assist the development of commercial, economic, c
ultural and scientific relations between the
sending State and the State of residence; to carry out certain functions
concerning nationals present in the State of
residence (civil registration, legal and paralegal assistance, delivery
of passports); to issue visas to foreign persons who
desire to travel to the sending State; to carry out surveillance of boat
s, vessels, aircraft and their crews, originating from
the sending State, and to provide them with assistance."
60 I.C.J. Reports, 1986, p.582, para. 54; also quoted in the Judgment of
the Court in the Case Concerning Kasikili/
Sedudu Island (Botswana/Namibia, 1999, para. 84).
61 'Compilation' is defined as follows: 'The selecting, extracting, and
assembling of map detail from various sources
(such as existing maps, aerial photographs and surveys), followed by t
he production of a new or improved map based
th
on this data.' (McGraw-Hill Dictionary of Scientific and Technical Term
s; 5Ed. New York, 1993).
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Appendix
PART I
BAKASSI
CHAPTER 3
APPENDIX
Statements made by the Bakassi Clan Heads concerning attribution of titl
e
The Efik society is administered through a number of groups and sub-grou
ps. The Obong of Calabar
heads the society, and the traditional governing body is the Obong's Cou
ncil, the leading members of
which are called Etuboms.
The area under the jurisdiction of the Obong's Council is divided into c
lans. Each clan has a Clan Head.
The clans were originally extended family-based structures, but have gra
dually incorporated other
members from other parts of Nigeria. The members of the clan tend to be
related to one another and
often claim common ancestry. A clan may consist of one town (e.g. Archi
bong) or a collection of
villages.
The Clan Head has primary responsibility for the traditional governance
and administration of the
villages within his authority, including the collection of taxes and the
maintenance of public order.
There are six clans on the Bakassi Peninsula: Archibong, Akwa, West Atab
ong, East Atabong, Abana
and Ikang. The first five of these are the principal towns on the penins
ula. The villages on Bakassi all
fall within the jurisdiction of one of these clans.
The clan unit forms part of the administration of the area (e.g. the ma
intenance of public order and the
collection of taxes). However, the peninsula is also administered on a
non-traditional basis for more
modern concepts. For example, there are nine electoral wards on Bakassi:
Abana, Akpa Nkanya, West
Atabong, East Atabong, Efut Inwang, Akwa, Archibong, Odon Ambai Ekpa and
Odiong. Each ward has
15 polling units within it.
Christopher Hackford and Charles Dalglish of the Nigerian legal team int
erviewed each of these Clan
Heads during a visit to the area in June 2000. These Clan Heads spoke on
behalf of all the villagers
under their traditional jurisdiction.
Archibong
The Clan Head of Archibong is His Highness Edidem Archibong, who has bee
n Clan Head for 2 years.
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Appendix
Before that time, his father was Clan Head.
Archibong was founded by Obong Asibong Edem. It is a very old well-estab
lished village on the banks
of the Akpa Yafe. The current population of the village in about 2000, a
nd that of the extended clan
about 10,000. They are all Efiks.
The villagers pay their taxes in Naira to Bakassi Local Government Area
(LGA). Before that was
created in 1996, they paid to Akpabuyo LGA in Nigeria. These taxes inclu
de income tax, canoe licences
and an education levy.
Samuel Udo, a resident of Archibong, informed the legal team that he cam
e to the village in 1977, and,
discovering that there was no school, created one himself. It was run by
the local community and
received no funding or resources from either Nigeria or Cameroon. He ran
this primary school from
1978 until 1994, when the Nigerian local government became involved in t
he administration. The
primary school has about 500 pupils at present. A secondary school was a
lso built in Archibong in 1998,
and this has about 200 pupils.
The Clan Head himself attended school in Calabar. He stayed in Calabar d
uring term time and returned
to Archibong during school holidays.
A clinic was established in the village in 1997, by Bakassi LGA. There a
re currently five nurses, who
are all paid by the LGA. Previously, when villagers were sick, they visi
ted the mainland for treatment, or
if the illness was serious, the hospital at Ikot Ene, in Akpabuyo LGA. A
Mobile Health Clinic, arranged
by Akpabuyo LGA, also visited Archibong carrying out immunisation progra
mmes. The last such
programme was in 1997.
The Nigerian Government is involved in a number of building projects in
Archibong. Aside from the
health clinic and the schools, there is a local government sub-office, a
market, a water project, an
electricity-generating scheme and a government guest house.
The villagers do not have passports, or any other type of identification
. They are not subject to
immigration checks at Ikang when visiting Akpabuyo LGA or Calabar.
The villagers have voted in recent elections, both at a state and a loca
l level. Polling booths are erected
in the village. The Clan Head maintained that the villagers did not vote
in the 1961 plebiscite, and this
was confirmed by the elders present. The Clan Head also confirmed that C
ross River State of Nigeria
has carried out censuses on Bakassi in the past.
If there is any legal dispute, either criminal or civil, in Archibong, t
he matter is dealt with first by the
Clan Head. If he does not succeed in resolving the matter, the dispute i
s referred to the Customary Court
in Ikot Nakanda, Akpabuyo. This is the traditional method for dispute re
solution. The police at Ikang or
Ikot Nakanda will become involved in criminal matters as and where neces
sary.
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A Roman Catholic Church was established by the Nigerian Roman Catholic M
ission in Archibong in
1893. There is now also an Apostolic Church which is administered from N
igeria.
Allegiance to the Ekpe society is shared by all Efiks.1 In this context Archibong has an Ekpe shrine
situated in the village. The practice of Ekpe preceded the arrival of th
e Christian missionaries and co-
exists with Christianity. Ekpe shrines also exist in Calabar, Ikang, Akw
a, Abana and West Atabong.
During the civil war, many of the local villagers left the village and m
oved to Akpabuyo or Calabar.
Only a few "hard-hearted" villagers remained. The area was supervised by
Isaac Boro, although he did
not have a permanent presence in the village. Isaac Boro was a major who
fought for the Federal army
during the Nigerian civil war (1967-1970). As most of the population h
ad deserted the village, there was
little administration. The remaining inhabitants did not pay taxes durin
g this time. When the war was
over, many of the population moved back to Archibong.
The Cameroonians first started to visit Archibong after the civil war en
ded and Isaac Boro had departed.
They never set up a permanent presence in the village nor any kind of ad
ministration. They would come
as "pirates" and demand taxes to be paid to them. Some local villages di
d pay because of the use of
force, both verbal and physical, but some still refused to pay.
These sporadic raids continued from the end of the civil war until 1993.
They became increasingly
regular and were often violent. The gendarmes would rape and occasionall
y kill villagers, and boats and
fish were stolen as well as money.
Since the strengthening of security in the area by the Nigerian army in
1994, the village has been
peaceful.
Akwa
The Clan of Akwa includes the villages of Akwa, Mbenmong, Nwanyo and Nka
n Okure (I and II). The
Clan Head is His Royal Highness Okon Beto Nyong, who is now 73 years old
.
Akwa was founded in about 1580 by Ananche Effiok Oho. The clan currently
includes a number of
villages strung out along the southern bank of the Akpa Yafe (Akwa, Mbe
nmong and Nwanyo) and a
few smaller fishing villages such as Nkan Okure I and II. Akwa itself is
situated a short walk eastwards
from Archibong, and the remaining villages are found further west and so
uth-west from here. The
population of Akwa Town is about 5000, but the clan is much larger with
a population of about 20,000.
All the population are Efiks.
The villagers pay their taxes in Naira to Bakassi Local Government Area
(LGA), but before that was
created in 1996, they paid to Akpabuyo LGA in Nigeria. The taxes include
income tax, canoe licences
and an education levy.
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A primary school was set up in Mbenmong in 1992. This was funded by Nige
ria and the teachers are
paid by the local government (now Bakassi LGA, but previously Akpabuyo)
. The Clan Head attended
school in Henshaw Town, Calabar. Many of the children in and around Akwa
attended the school in
Archibong after 1978, but travelled to the mainland or Calabar for secon
dary education. There is also a
primary school at Nkan Okure, established in the 1970's, which currently
has 4 teachers and 150 pupils.
A small clinic was established in Mbenmong in 1996 by Bakassi LGA, and t
he villagers also use the
clinic in Archibong. If the villagers are very sick, they attend the hos
pital at Ikot Ene, in Akpabuyo
LGA. Before the clinic was established, the population visited Ikang whe
n they were sick, or waited for
a visit from the mobile health centre which was administered by Akpabuyo
LGA.
Akwa and the surrounding villages share the same facilities, such as the
water project and the electricity-
generating scheme, which have been established in Archibong.
An Apostolic Church was founded in about 1955 in the clan. This was admi
nistered by Calabar.
The villagers do not have passports, or any other type of identification
. They are not subject to
immigration controls at Ikang when visiting the mainland or Calabar, whe
re they carry out most of their
trade.
The villagers have voted in recent elections, both at a state and a loca
l level. A polling booth is erected
in each of the villages within the clan. The Clan Head maintained that n
either he nor any of the villagers
had voted in the 1961 plebiscite.
If there is any legal dispute in the village, either criminal or civil,
it is dealt with first by the Clan Head.
If he does not succeed in resolving the matter the dispute is referred t
o the Customary Court in Ikot
Nakanda, Akpabuyo. This is the traditional method for dispute resolution
. The police at Ikang or Ikot
Nakanda will become involved in the more serious criminal matters.
During the civil war, many of the villagers left the village and moved t
o the mainland. Only a few
remained. The area was supervised by Isaac Boro. As most of the populati
on had deserted the village,
there was little administration, and no taxes were paid by the remaining
inhabitants of Akwa throughout
the duration of the war. The population returned at the end of the war.
The Cameroonians first started to visit Akwa and the villages within the
clan after the civil war ended.
They never set up a permanent presence in the village nor any kind of ad
ministration. They would come
and demand taxes to be paid to them. Some local villages paid because of
the use of force, both verbal
and physical.
These sporadic raids continued from the end of the civil war until 1993.
They became increasingly
regular and were frequently violent.
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Security was strengthened in 1994 to prevent these attacks, and since th
at date the situation in the village
has been peaceful. The Clan Head and the villagers have no recollection
of any attacks since 1994 by
Cameroonian gendarmes.
West Atabong (Atai Ema)
West Atabong is a substantial town located on the western bank of the Ba
kassi Sound. There are twelve
villages within this clan area, and these are all located in close proxi
mity to West Atabong in the south
west of the Bakassi peninsula. These include Ebighi Edu, Esit Ufak, Ibuo
t Utan Ibekwe and Ine Ekaya
(the locations of these villages are on Map 5 of the Atlas to Nigeria's Counter-Memorial).
The Clan Head is His Royal Highness Etubom Okon Etim Okon Asuquo III. He
has been Clan Head
since 1992, and a village head since 1985. He is 65 years old. West Atab
ong was founded by Obong
Atai Ema Otong Otu Mesembe.
The current population of West Atabong is about 15,000, and the populati
on of the whole clan is
significantly larger. West Atabong is a substantial settlement. It is we
ll-populated and busy. Aside from
fishermen, there is a large market, a cinema, bars, barbers, food stalls
, and many shops selling a large
variety of goods.
The people currently pay their taxes in Naira to Bakassi LGA, and previo
usly paid to Okobo LGA in
Akwa Ibom State in Nigeria. The taxes include income tax and canoe licen
ces.
A secondary school was set up in West Atabong in 1995. It was funded by
the local Nigerian
government. A primary school was established in 1994, also by the LGA. T
he teachers of both schools
are paid by Nigeria.
Before then, there were community schools which were run by the churches
. Isaac Boro also started a
school in West Atabong during the civil war. This was run by Antera Ande
m Ema, who is still alive
today. He stated that when Isaac Boro left, the community took over the
running of the school. It was
gradually abandoned. The children then used to go to Ikang or to Calabar
for their education.
The Clan Head attended school in Calabar, where he stayed during term ti
me and returned to West
Atabong for the vacation.
There are a number of churches in West Atabong, but the principal one is
the Methodist Church, which
was set up by Methodist missionaries from Oron in Nigeria in the 1940s.
The preachers all came from
Nigeria and the Chief himself was baptised in 1942 in that church.
A clinic was established by Okobo LGA in 1993, and the nurses are paid b
y Nigeria. Before that time,
sick villagers attended clinics in Ikang or Jamestown. From the 1930s on
wards, a mobile health clinic,
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arranged by the Nigerian local government, would regularly visit the are
a.
In addition to these, the local government has, since 1993, also built a
revenue office, started a water
project, and runs a generating plant for electricity.
The villagers now send and receive their post through Ikang. They have a
n address there and visit Ikang
to collect and post mail.
The people do not have passports, but used to have them issued by Calaba
r to enable them to trade in
Equatorial Guinea and Cameroon.
Nigerian elections have taken place a number of times in West Atabong. P
olling booths with corrugated
iron roofs were erected as far back as 1963. The Clan Head confirmed tha
t the local population did not
vote in the plebiscite.
The population also took part in the Nigerian census of 1953.
Petty criminal matters are dealt with by the Clan Head and in his absenc
e, or if he fails to resolve the
matter, it is referred to the police at Ikang or Jamestown. Other legal
disputes are also dealt with
primarily by the Clan Head, but may be referred to the Customary Court a
t Jamestown.
Isaac Boro was sent to West Atabong in December 1967. He was sent to pro
tect the Efiks and to prevent
the Biafran insurgents from coming into Calabar via Ikang. He positioned
himself at the old village of
Itung which is now Isaac Boro camp.
Village life here, on the south of Bakassi, was not greatly affected by
the civil war, and the residents
carried out their daily lives in peace.
The Cameroonians did not start to visit the village until after Isaac Bo
ro left. However, they did not
establish a permanent presence in the village itself and never stayed fo
r more than two or three hours.
They made intermittent raids on the villages. They plundered the propert
y of the locals and extorted
taxes from them. These taxes were never receipted.
This situation continued and deteriorated over the period from 1970 to 1
994, and the local population
became more desperate. The local people sent a series of reports to the
Nigerian government, but
nothing was done in this period.
In April 1994, the Nigerian army strengthened the security in West Atabo
ng. Since that time there have
not been any attacks on the villages by Cameroonian gendarmes. However t
hey continue to attack the
local fishermen when they are out to sea, or when they stray too far to
the eastern side of the peninsula.
The gendarmes will take the outboard engines from the fishermen, steal t
heir catch and extort money.
The brother of the Clan Head was killed by Cameroonian gendarmes while h
e was fishing on the high
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seas.
East Atabong (Ekpot Abia)
The clan of East Atabong consists of nine villages strung along the sout
h-eastern coast of the Bakassi
Sound. The clan was founded by Obong Ekpot Abia Ntekim Antai Umo, an Efi
k, in the 17 thcentury.
The Clan Head is His Royal Highness Okon Effiong Edem, who has been Clan
Head since 1999, and a
chief since 1975. He is currently 48 years old.
The clan area includes a number of villages around East Atabong, such as
Ine Amamong, Ine Itung,
Akwa Ine Ibekwe and Ine Okopedi.
The population of the main village, East Atabong, is about 5,000, while
that of the clan is approximately
20,000, of whom some are Efik and some Effiat.
The people now pay their taxes in Naira to Bakassi LGA, but previously p
aid to Okobo LGA. These
taxes include income tax and canoe licences. They have only ever paid to
Cameroon when they have
been forced to do so by gendarmes. These Cameroonian taxes are never rec
eipted.
A primary school was set up in 1999. Prior to that there was a community
school run by the local
people. Some children attended the Isaac Boro school in West Atabong or
the schools in Jamestown and
Calabar. The Chief himself attended school in Calabar.
A clinic has recently been established in East Atabong by Bakassi LGA. B
efore then, the local people
used to travel to Jamestown or rely on a mobile health clinic provided b
y the local Nigerian LGA.
Bakassi LGA is introducing a water project and electricity generating pr
oject into the main village, East
Atabong.
A Methodist Church was established in East Atabong in the 1940s and this
was run from what is now
Akwa Ibom State.
The villagers do not carry passports with them, and pass through Ikang a
nd Jamestown without
hindrance. They have also voted in past and recent elections, when a pol
ling station has been set up in
the village. They did not vote in the Plebiscite.
The Clan Head first tries to resolve any legal or petty criminal offence
s. In the event that he is unable so
to do, it is referred to the customary court or the authorities in James
town.
There is a large amount of inter-relation between East Atabong and West
Atabong, and the two clans
often share the same facilities - in health, education and trade.
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Isaac Boro stationed an officer, Rafael Eken, in East Atabong during the
civil war to control that area.
He managed to maintain a peaceful existence for the inhabitants and the
village was hardly affected by
the war.
The Cameroonians started to visit the villages after the departure of Ra
fael Eken in 1969, but they would
not stay long, and they did not establish a permanent presence in the ar
ea.
Attacks and tax raids by the Cameroonian gendarmes continued throughout
the period from 1970 to
1994, when the Nigerian army strengthened its presence in the village in
order to protect the villagers
from these attacks.
Since the Nigerian military strengthened security in the area, the villa
ge has been peaceful, although
Cameroonian gendarmes still continue to attack Nigerian fishermen in the
high seas.
Abana
The clan area of Abana includes all the villages situated on the western
side of the Bakassi Peninsula,
from Onosi in the south to Ine Ekoi in the north.
Abana was founded over 300 years ago by an Efik called Obong Abana Ntuen
Umo. The current
population of the clan is over 50,000, of which about 30,000 live in Aba
na itself. There are no
Cameroonians living there.
The Clan Head of the area is His Royal Highness Etim Okon Edet. He is 39
years old, was born on 23
December 1960 and grew up in Abana.
The Clan Head explained that Abana was part and parcel of Old Calabar an
d the people owe their
allegiance to the Obong of Calabar.
The villagers pay their income taxes in Naira to Cross River State and t
o the Chairman of Bakassi LGA.
Previously they paid to Mbo LGA. They also pay their canoe licence fees
to Bakassi LGA, and to Mbo
LGA. They have never paid taxes to Cameroon.
Abana has a primary school which was set up by the Catholic Church in 19
69. The Clan Head attended
this school for two years before moving to a school in Calabar. The head
master of the school was Mr
Friday Ebukanson, and his class teacher was Chief Nyong Etim Inyang, who
is now the village head of
Adak Uko. A new primary school was established in 1992 by Akpabuyo LGA.
A clinic was also established in 1992 by Akpabuyo LGA. Prior to that dat
e, the sick and injured attended
the Nigerian mainland for treatment, such as St Joseph's Hospital in Iko
t Ene, Akpabuyo, or at clinics in
Oron.
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Bakassi Local Government Area is situated at Abana, and has its offices
there. Also the Nigerian
authorities have built a magistrates court, a guest house, an electricit
y generator, a water project and a
number of offices in the town. The Clan Head was concerned about the pro
blem of erosion of the shore
line.
The town contains an Ekpe shrine and there are now several churches. The
main churches are the
Catholic Church and the Apostolic Church which were established in the 1
950s and were administered
from Nigeria.
During the 1950s and 1960s, the population took part in Nigerian electio
ns. Abana itself was not a ward
at that time, but the local population would travel to Ikang, Eket or Or
on to vote. In more recent
elections polling stations have been established in the town. The clan c
hief stated that the village of
Abana was part of Eket Division and therefore the villagers did not part
icipate in the 1961 plebiscite.
In the event of crime or when legal disputes arise in the village, the C
lan Head tries to resolve them by
traditional means. If this attempt fails, criminals are taken to Ikang o
r Atimbo police stations in Nigeria,
and legal disputes are referred to Ikot Nkanada or Jamestown Customary C
ourts.
During the civil war the village was occupied by Nigerian soldiers, and
neither Cameroonian soldiers
nor the insurgents were present. Isaac Boro stationed an officer in the
village. This enabled the
population to carry on their livelihood in peace.
When Isaac Boro left and moved to Jamestown, the Cameroonian soldiers sa
w that the village was
empty. They began periodically to attack the Nigerian people, coming int
o the villages to try and extort
money from them. They never stayed very long in the village. During thes
e raids the local people would
run away and hide in order to avoid having to pay anything.
These attacks continued from 1970 onwards, and in 1992 the gendarmes hoi
sted their flag over the
village during one of these raids. It was removed by the Clan Head when
he returned to the village.
The legal team were introduced to a man who had been blinded in one eye
by the Cameroonian
gendarmes. He was called Okon Asibong. Over 15 years ago, the gendarmes
attacked him because he
tried to prevent them from going into the Ekpe shrine and arresting the
chiefs of the village. They beat
him up, blinding him in one eye.
Since the Nigerian army strengthened security in 1994, the village has b
een peaceful and has not been
subject to attacks by Cameroon. The gendarmes still carry out attacks on
the fishermen who are fishing
on the high seas, and steal their engines. This occurs particularly if t
he fishermen pass to the east of East
Atabong towards Ine Odiong.
Ikang Clan
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Ikang itself is not on Bakassi, but it is a major administrative centre.
The area under the authority of the
Clan Head of Ikang includes a significant number of villages on Bakassi.
As a direct consequence, Ine
Ikang, Ine Akpa Ikang and the surrounding fishing hamlets, owe allegianc
e to the Clan head based at
Ikang on the mainland.
The villages on Bakassi which are in this clan are strung out along the
banks of the Akpa Yafe, in the
north-western part of the Peninsula.
Ine Akpa Ikang is the hub of the group of settlements. Ine Akpa Ikang us
ed to be known as Ine German.
The assistant chief of the village, Akpan Utong Otu, stated that the tot
al population of these villages is
more than 2000. There are a number of tribes living in this village in a
ddition to Efiks, including Ijaws,
Andoni and Ibibios, who are all from Nigeria.
The assistant chief explained that all the villages in the group were pe
rmanent and that a number of the
villagers have second homes and/or relations in Akpabuyo, at Ikang, Ikot
Nakanda and Calabar.
The villagers pay their tax to Akpabuyo LGA at Ikang. They have never pa
id any taxes to
Cameroonians. They also pay for canoe licences.
A primary school has been established in the village by Akpabuyo LGA. Th
is has six teachers (paid by
Akpabuyo LGA) and four classes, with a pupil enrolment of about 100. Th
e Chief himself did not go to
school.
There is no clinic in the village and the sick visit the clinic in Ikang
if necessary. From time to time,
nurses come from Archibong to carry out inoculations.
An Apostolic Church was established in 1993, and more recently a Christi
an Life Bible Church. The
villagers still practice Ekpe.
The villagers have voted within Ikang ward in local elections as far bac
k as the 1960s. They did not vote
in the plebiscite.
Local disputes are settled by the local chief, or are referred to Ikang
or Ikot Nakanda if there is no
resolution.
__________
1 The Ekpe society is more fully described in Chapter 3 of this Rejoinder.
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apter 4
PART II
LAKE CHAD
CHAPTER 4
THE ASCERTAINMENT OF THE BOUNDARY WITHIN LAKE CHAD: THE ABSENCE OF A
DELIMITATION
A. Preliminary Matters: the Basis of Nigeria's Claim
4.1 The Claim of Nigeria relates to the following villages in the Lake C
had region:
1 Aisa Kura
2 Ba shakka
3 Chika'a
4 Darak
5 Darak Gana
6 Doron Liman
7 Doron Mallam (Doro Kirta)
8 Dororoya
9 Fagge
10 Garin Wanzam
11 Gorea Changi
12 Gorea Gutun
13 Jribrillaram
14 Kafuram
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15 Kamunna
16 Kanumburi
17 Karakaya
18 Kasuram Mareya
19 Katte Kime
20 Kirta Wulgo
21 Koloram
22 Logon Labi
23 Loko Naira
24 Mukdala
25 Murdas
26 Naga'a
27 Naira
28 Nimeri
29 Njia Buniba
30 Ramin Dorinna
31 Sabon Tumbu
32 Sagir
33 Sokotoram
4.2 As Nigeria had occasion to indicate in the Counter-Memorial, whilst some of the villages lie to the
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West or South of the provisional demarcation of Lake Chad boundaries car
ried out by IGN, most of the
villages lie to the East. It is a basic premise of the present Chapter t
hat title to the named villages vests in
Nigeria independently both of the present status of the demarcation as s
uch, and of the incidence of the
provisional alignment.
4.3 It is the position of Nigeria that the areas of Lake Chad to the nor
th and east of the terminus of the
land boundary at the mouth of the Ebeji (see Chapter 7, below) constit
ute territory the title to which is
undetermined, subject to the existence of title to specific areas (see
paragraph 4.1 above and Chapter 5
below) based upon historical consolidation of title and acquiescence.
4.4 It is accepted that, if an agreed delimitation had emerged from the
work of the Lake Chad Basin
Commission (LCBC), then various treaty instruments would have constitu
ted data upon which the
delimitation would have been based. However, as demonstrated in Chapter
16 of the Counter-Memorial,
the work of the LCBC did not produce a result which was final and bindin
g upon Nigeria. In the absence
of a jointly agreed delimitation, there is no boundary in place which is
opposable to Nigeria.
4.5 It is to be emphasised that Nigeria's is not the only opinion to the
effect that there is no definitive
delimitation in place. That was the opinion of the LCBC itself when it e
mbarked on a procedure
intended, subject to the lex specialis of the LCBC as an organisation, to result in a final delimitation.
This is also the opinion of the majority of the riparian States expresse
d in their conduct outside the
framework of the LCBC. Thus in the recent months Nigeria has agreed to b
ilateral talks concerning the
boundary in Lake Chad with Chad and Niger respectively. Nothing could in
dicate the realities of the
existing position with greater clarity.
4.6 The arguments advanced on behalf of Cameroon involve both ignoring t
he consensual nature of the
LCBC, and asserting that the interpretation and application of the relev
ant treaty instruments, that is, the
operations called for by the LCBC in mandating the IGN operation, only c
onstituted a process of
"demarcation" in relation to a pre-existing delimitation.
4.7 As a further preliminary, it is to be noted that Cameroon complains
that Nigeria does not claim a
boundary line but claims only specific villages (Reply, page 101, paragraph 3.03; and page 119,
paragraph 3.33). In response, Nigeria contends that the claim has a hig
h level of specificity and thus
complies with the requirement that the Court should be informed of the p
recise nature of the claim:
compare Article 38 of the Rules of Court in relation to the institution
of proceedings by means of an
application and Article 39 in relation to the bringing of proceedings on
the basis of a special agreement.
4.8 In order to increase the degree of specificity, the Nigerian claim h
as been reformulated, and is set out
in further detail in Chapter 5, below.
B. The Cameroonian Assertion that a Treaty-based Boundary Already Exists
4.9 A major element in the position of Cameroon is the contention that a
treaty-based boundary already
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exists (Reply, pages 101-135, paragraphs 3.01-3.66). The concomitant assertion is th
at Nigeria denies
that there is a treaty-based delimitation in existence: see the Reply, page 101, paragraph 3.02.
4.10 It is necessary, first of all, to clarify the position of Nigeria.
Nigeria accepts that the delimitation of
the boundary within Lake Chad must involve appropriate reference to the
treaty instruments of 1906,
1908, 1910 and 1931. A careful description of these instruments and the
related transactions is to be
found in Chapter 15 of the Nigerian Counter-Memorial, pp. 343-376.
4.11 At the same time the Nigerian position differs from that of Cameroo
n in the following particular
respects:
First: There is a considerable difference between the acceptance by the parti
es of the evidential
relevance of a series of treaty instruments and the question of the vali
dity or applicability of one or more
of the treaty instruments to particular areas or localities.
Second: The tasks presented to the contractors (IGN France International) by
the Member States of the
LCBC were in no way confined to the technical process involving the dema
rcation of a previously
agreed and precisely described alignment. As a consequence, the process
of boundary-making involved
both a delimitation and a demarcation. In this context it is inaccurate to refer to an already
existing
"treaty-based" boundary.
Third: In any event, the operation intended to lead to an overall delimitatio
n of boundaries on Lake Chad
is legally without prejudice to the title to particular areas of the Lak
e Chad region inhering in Nigeria as
a consequence of the historical consolidation of title and the acquiesce
nce of Cameroon.
4.12 In insisting on the existence of a treaty-based title Cameroon reli
es upon the Thomson-Marchand
Declaration, in the form of an Anglo-French Exchange of Letters of 9 Jan
uary 1931 (Reply, pages 101-
103, paragraphs 3.04-3.11). This reliance involves a number of solecism
s. In the first place, the
transactions of 1931 did not involve a final determination of the Anglo-
French boundary but provided
for delimitation by a boundary commission. In this respect the British N
ote (Annex NC-M 54) gives the
picture:
"2. His Majesty's Government agree that this Declaration is, as you poin
t out, not the
product of a boundary commission constituted for the purpose of carrying
out the
provisions of Article 1 of the Mandate, but only the result of a preliminary survey
conducted in order to determine more exactly than was done in the Milner
-Simon
Declaration of 1919 the line ultimately to be followed by the boundary c
ommission; that,
none the less, the Declaration does in substance define the frontier; an
d that it is therefore
desirable that the agreement embodied therein shall be confirmed by the
two Governments
in order that the actual delimitation of the boundary may then be entrusted to a bound
ary
commission, appointed for the purpose in accordance with the provisions of Article
1 of
the Mandate.
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3. His Majesty's Government note that the French Government by their not
e under
reference confirm, for their part, the agreement embodied in the Declara
tion; and I have
the honour in reply to inform your Excellency hereby that His Majesty's
Government
similarly confirm this agreement.
4. His Majesty's Government in the United Kingdom accordingly concur wit
h the French
Government that the actual delimitation can now be entrusted to the boundary
commission envisaged for this purpose by Article 1 of the Mandate." (emphasis added)
4.13 It is clear from the language of the Exchange of Notes that the arr
angements were essentially
procedural and programmatic. In other words, after the work had been car
ried out, there would be an
agreement on the delimitation thus effected. This stage has not yet been
reached in relation to Lake Chad
and certain parts of the land frontier.
4.14 In light of the complex diplomatic history relating to Lake Chad, i
t is not surprising that the
Members of the LCBC did not take the view that the Exchange of Notes of
1931 was in any way
definitive. Thus, when in 1988 the LCBC drew up the Technical Specifications for Boundary
Demarcation and Survey in the Lake Chad (Annex NC-M 279) the documents included the following:
"(iii) Texts and documents dealing with border demarcation in the Lake
Chad:
(a) Convention between Great Britain and France respecting the delimit
ation of the
frontier between British and French possessions east of the Niger (sign
ed in London on 29
May 1906);
(b) Convention confirming the boundary between Cameroon and French Con
go (signed in
Berlin on 18 April 1908);
(c) Agreement between the United Kingdom and France on the delimitatio
n of the border
between the British and French possessions east of the Niger (signed in
London on 19
February 1910);
(d) Exchange of notes between His Majesty's Government in the United K
ingdom and the
French Government concerning the boundary between British and French Cam
eroons
(done in London on 9 January 1931);
(e) Minutes of the meeting of 2 March 1988 between Chad and Niger to d
etermine their bi-
points on the Lake Shore."
4.15 It is evident from this document that the Exchange of Notes of 1931
was not regarded by the LCBC
either as exclusively relevant or as definitive.
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4.16 In this context the text of the contract awarded to IGN France Inte
rnational is equally significant.
The contract (Annex NC-M 281) provided (in material part) as follows
:
"Article 7: Documentation handed to the Contractor by the Lake Chad Basi
n Commission
The Lake Chad Basin Commission shall supply the Contractor with the foll
owing
documents:
[.................]
(iii) Texts and documents dealing with boundary demarcation in Lake Ch
ad:
(a) Agreement between Great Britain and Germany concerning the boundar
y between
British and German territories from Yola to Lake Chad, signed in London
on 29 May
1986 [sic];
(b) Convention confirming the boundary between Cameroon and French Con
go, signed in
Berlin on 18 April 1908;
(c) Agreement between the United Kingdom and France on demarcation of
boundaries
between British and French possessions East of the Niger, signed in Lond
on on 19
February 1910;
(d) Exchange of notes between the Governments of His Majesty of the Un
ited Kingdom
and France concerning the frontiers between French Cameroon and British
Cameroon in
London on 9 February [sic] 1931;
(e) Minutes of the meeting of 2 March 1988 between Chad and Niger to d
etermine the bi-
point of the North Frontier of Chad-Niger in Lake Chad."
4.17 Once again, the instrument of 1931 was not treated either as exclus
ively relevant or as definitive.
And it is necessary to recall that Cameroon, as a Member State of the LC
BC, had accepted these
provisions in the contract awarded to IGN.
4.18 This series of relevant documents is completed by reference to the
Report of the Marking-Out of the
Boundaries in Lake Chad adopted by the Heads of State of the Member States of the LCBC at
N'Djamena on 14 February 1990 (Annex 5 to the Additional Application). The relevant passages are as
follows (in the English translation provided by the Registry of the Cou
rt):
"We the undersigned,
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experts from the Member States of the (CBLT/LCBC Cameroon, Niger, Niger
ia and
Chad), duly designated by our States to supervise and monitor the work
on the
demarcation of our boundaries in accordance with resolution No. 2 adopte
d by our
Governments at their Sixth Summit Meeting held in N'Djamena on 28 and 29
October
1987,
on the one hand,
and IGN-France International (IGN-FI), holder of contract No. CBLT/MO2
/88, approved
on 26 May 1988, for the delimitation of the boundaries between the territories of
Cameroon, Niger, Nigeria and Chad.
on the other,
have proceeded, from 13 June 1988 to 12 February 1990, to effect the delimitation and
marking-out of the said boundaries and submit to the approval of the respective
Governments the following description of the boundaries that we marked o
ut.
Chapter I. General Considerations.
1.1 Nature of the work
The work consisted of a faithful reconstitution, on the ground, of the i
ndications defining
the course of the inter-State boundaries, as given in the agreements, tr
eaties, exchanges of
notes, conventions and maps currently in force.
1.2 Course of the boundary
The boundary line is drawn as a straight line from one beacon to another
, and marked out
on the ground by major beacons linked to each other by intermediate beac
ons, erected
every 5 kilometres or so.
Seven major beacons have been set up at the points defined in the texts
and maps in force.
Sixty-eight intermediate beacons have been strung out along the traverse
for traverses I-II,
I-VII, II-V, III-VI, and follow the curve of the geographical parallel f
or traverses I-IV and
II-III...
Chapter VI. Cameroon-Nigeria Boundary in Lake Chad
This section of the boundary has been reconstituted in accordance with the indications
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given in:
(1) the Exchange of Notes between His Majesty's Government in the Unit
ed Kingdom and
the French Government, respecting the boundary between the French and Br
itish zones of
the Mandated Territory of the Cameroons, effected in London on 9 January
1931.
(2) the report of the meeting of experts relating to the determination
of the co-ordinates of
the mouth of the El-Beid (Ebedji), which was held on 15 and 16 Septemb
er 1988 in
N'Djamena, Chad. The co-ordinates of the mouth of the El-Beid (Ebedji)
as defined by the
experts were approved by the national Commissioners in their resolution
No. 2 relating to
the demarcation of the boundaries in Lake Chad, during the 36 th Session of the Lake Chad
Basin Commission meeting in Maroua, Cameroon, from 1 to 2 December
1988." (emphasis added)
4.19 As Nigeria pointed out in her Counter-Memorial it is significant that the first of the passages
quoted above refers to "the delimitation of the boundaries" and also "th
e delimitation and marking-out of
the said boundaries." Of particular significance is the definition of th
e "nature of the work". The work
thus consisted of "a faithful reconstitution, on the ground, of the indi
cations defining the course of the
inter-State boundaries, as given in the agreements, treaties, exchanges
of notes, conventions and maps
currently in force." The different essays in delimitation contained in t
hose agreements, treaties,
exchanges of notes, conventions and maps were depicted on Maps 43-49 and
51-52 of the Atlas to
Nigeria's Counter-Memorial, and are produced here (with relevant amendments) as Figs. 4.1 to 4.9
.
[4.1; 4.2; 4.3; 4.4; 4.5; 4.6; 4.7; 4.8; 4.9]
4.20 These documents lead to the following conclusions. The procedure di
d not, and in the
circumstances, could not, constitute a process of demarcation alone. The
procedure involved the use of
the LCBC to effect the original purposes of the colonial treaty instrume
nts. But those purposes had been
to effect a final delimitation by means of a boundary commission. No suc
h implementation had taken
place in Lake Chad and the Member States of the LCBC were engaged in an
attempt to resolve issues
left open since 1931. In the light of the actual history, it is misleadi
ng to assert the existence of a
delimitation, as opposed to a procedure for delimitation (see the Briti
sh Note of 1931, above), based
upon a treaty. In the event, even the procedure was not that envisaged b
y the Exchange of Notes of
1931, and no treaty-based boundary has existed on Lake Chad since 1931.
4.21 It is unfortunate that in her Reply Cameroon has avoided any comment upon the content of the three
documents analysed above, that is to say, the explicit references to the
relevant treaty instruments, which
necessarily involved a process of precise interpretation and application
of the treaties, a process
connoting delimitation, that is to say, the ascertainment of the boundar
y line in principle.
4.22 However, somewhat inconsistently, Cameroon does refer to a document
of the LCBC of 1984, the
relevant passages of which are as follows:
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"5. Après discussions et échange de vues, la sous-commission a ret
enu comme documents
de travail, les textes suivants traitant de la délimitation des front
ières dans le Lac Tchad:
"- Accord entre la Grande Bretagne et la France concernant les possessio
ns britanniques et
françaises à l'Est du Niger signé à Londres le 29 mai 1906;
"- Convention pour préciser les frontières entre le Cameroun et le
Congo français signée à
Berlin le 18 avril 1908;
"- Accord entre le Royaume Uni et la France sur la délimitation des f
rontières entre les
possessions britannique et française à l'Est du Niger signé à
Londres le 19 février 1910;
"- Echange de notes entre les Gouvernements de sa Majesté du Royaume
Uni et de la
France concernant la frontière entre le Cameroun français et brita
nnique fait à Londres le
9 janvier 1931." 1
4.23 This document is quoted by Cameroon in its Reply (page 126, paragraph 3.57), although it
contradicts the thesis that the 1931 Exchange of Notes is the only treat
y instrument which is relevant.
The document as a whole, produced by a sub-committee of experts of the L
CBC in November 1984, is
of interest because it prefigures the considerable legal and technical p
roblems involved in the
delimitation of boundaries in the Lake Chad region.
C. The Relevance of the Exchange of Notes of 1931 to the Land Boundary B
etween Lake Chad and the
Sea
4.24 The position of Nigeria in relation to the land boundary has been s
tated in clear terms in the
Counter-Memorial as follows:
"Nigeria accepts in principle the course of the boundary as described by
the instruments
which are principally relevant to the delimitation of the boundary and r
elied on by
Cameroon (referred to in paragraph 18.28 above). During the course of
the Preliminary
Objections phase of the present case, Nigeria had occasion to state that
(it being
understood of course that there was an admitted dispute as regards the L
ake Chad and
Bakassi areas which had implications for the boundary in those areas) t
he established
boundary was accepted in principle by Nigeria, and that there was, so fa
r as Nigeria was
concerned, no dispute between Nigeria and Cameroon over the land boundar
y as such
between Lake Chad and Bakassi. Notwithstanding the view expressed by the
Court in
paragraphs 85, 87 and 93 of its Judgment of 11 June 1998 on Nigeria's Pr
eliminary
Objections, that remains the position: there is in principle no dispute
that the delimitation
of the land boundary between Lake Chad and Bakassi is to be carried out
on the basis of
the instruments invoked by Cameroon." 2
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4.25 The position of Nigeria remains the same, and the matter is adverte
d to here only because
reaffirmation may be called for in the light of the Cameroon argument th
at Nigeria accepts the treaty
instruments concerning the land boundary, whilst rejecting the same inst
ruments in relation to the sector
of the boundary within Lake Chad (Reply page 103, paragraphs 3.10-3.11).
4.26 The inconsistency alleged by Cameroon, however, lacks substance. Th
e issue of delimitation qua
Lake Chad has been treated as a discrete enterprise by the Member States
of the LCBC since 1983: see
the Counter-Memorial, pp. 391-410. This position was shared by Cameroon, at least until 1994
, when
she commenced these proceedings.
4.27 There is a further consideration, which appertains to the substance
of the matter. Apart from the
operational separation of the Lake Chad question from the land boundary,
the position in other respects
does not involve any inconsistency. In the case of Lake Chad the issues
outstanding since 1931, or 1906,
or 1908, are substantial. They include the determination, in relation to each other, of two tripoints on the
Lake. The 1931 Exchange of Notes did not leave a boundary in place withi
n Lake Chad. There was no
treaty-based boundary which could be either accepted or rejected. In rel
ation to the land boundary, with
the exception of certain significant local anomalies, the situation is s
ubstantially different (see Chapter 6
below).
D. The Decision of the Court in the Phase of Preliminary Objections
4.28 In the Reply the Government of Cameroon contends that the position of Nigeria concer
ning Lake
Chad, as maintained in the Counter-Memorial, ignores the decision of the Court in the Preliminary
Objections phase of these proceedings: see the Reply, p.101, paragraph 3.01 and p.119, paragraph 3.35.
4.29 This contention on the part of Cameroon is based upon a misundersta
nding and can be disposed of
briefly. In the part of the Judgment to which Cameroon refers, the relev
ant passages (I.C.J. Reports,
1998, pp. 307-309, paragraphs 70-72) conclude with the Court pointing o
ut that the issues relating to the
powers of the LCBC and the legal consequences of the pertinent proceedin
gs of the LCBC were issues
reserved for the Merits phase. In the words of the Court:
"It is not for the Court at this stage to rule upon these opposing argum
ents. It need only
note that Nigeria cannot assert both that the demarcation procedure init
iated within the
Lake Chad Commission was not completed and that, at the same time, that
procedure
rendered Cameroon's submissions moot. There is thus no reason of judicia
l propriety
which should make the Court decline to rule on the merits of those submi
ssions."
E. The Distinction Between Delimitation and Demarcation
4.30 It is necessary to look briefly at the classical distinction betwee
n delimitation and demarcation.
Rousseau provides a clear description of the classical distinction in th
ese works:
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"A la différence de la délimitation, acte juridique qui s'analyse comme une décision de
principe sur la détermination des éléments qui constituent la f
rontiére, la démarcation
désigne l'ensemble des opérations matérielle qui aboutiront á reporter sur le terrain le tracé
3
de la frontiére établi par voie conventionnelle." (emphasis in the original)
4.31 The reader of the documents produced by the LCBC in relation to the
exercise in boundary-making
on Lake Chad must inevitably recognise that the operation is not limited
to demarcation alone.
4.32 A number of authors recognise that in the language of diplomacy the
use of the terms delimitation
4
and demarcation is sometimes confused: The following observations by Brownlie are also relevant to
the present case:
"It is common practice to distinguish delimitation and demarcation of a
boundary. The
former denotes description of the alignment in a treaty or other written
source, or by
means of a line marked on a map or chart. Demarcation denotes the means
by which the
described alignment is marked, or evidenced, on the ground, by means of
cairns of stones,
concrete pillars, beacons of various kinds, cleared roads in scrub, and
so on. The principle
of the distinction is clear enough, but the usage of the draftsman of th
e particular
international agreement or political spokesman may not be consistent. In
fact the terms are
sometimes used to mean the same thing.
The distinction is logical and reflects the general experience. However,
in certain
circumstances the relations between delimitation and demarcation are sig
nificantly
different. In the first place, a not uncommon procedure is for two gover
nments to define
their common boundary in principle and at the same time agree to establi
sh a joint
commission which will establish a more precise alignment by means of a d
etailed survey
and demarcation. The work of the joint commission will then be embodied
in an
international agreement to which will be annexed an elaborate boundary d
escription,
usually in the form of a lengthy schedule of boundary pillars and, or, m
ap sheets. In such
an operation the process of ascertainment of the alignment, dependent up
on survey work
and agreement of the commissioners, merges with the procedure of demarca
tion.
"Description" and the establishment of the alignment upon the terrain be
come a single
5
phase."
F. The Relevance of the Principle of Uti Possidetis
4.33 In the course of its argument in the Reply, Cameroon invokes the principle of uti possidetis (Reply,
page 103, paragraph 3.09). The argument appears in the context of the c
ontention by Cameroon that a
treaty-based delimitation within Lake Chad has existed since the 1931 Ex
change of Notes.
4.34 The Nigerian Government considers that the reference to uti possidetis is unhelpful because it is
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question-begging. The purpose of uti possidetis is conservative, that is, to produce a transmission of the
status quo. The question which divides the parties in this connection is
the nature of the status quo which
was continued after independence.
G. The Absence of a Final Delimitation Binding Nigeria
4.35 In response to the Reply of Cameroon, Nigeria maintains the position that the work of the LCBC
relating to the delimitation and demarcation of the boundary within Lake
Chad did not produce a result
which was final and binding on Nigeria.
4.36 The Court will recall that during the Ninth Summit (the Minutes ar
e at Annex NC-M 286) on 30-31
October 1996, the Heads of State and Governments adopted as Decision No.
2 (p. 11):
"Country Reports on the Adoption and Signing of Document on Boundary Dema
rcation"
Considering the item on adoption of the document on boundary demarcation
;
Noting the sensitivity of the issue in view of recent developments;
Considering the necessity for peace and tranquility in the sub-region;
Noting the absence of the Heads of State of Cameroon and Nigeria,
The Heads of State decided:
- To defer discussions on the issue.
- To mandate the President of the Summit to intervene either through con
sultations or
meeting with the two Heads of State of Cameroon and Nigeria, to find an
amicable
solution to the problem in the spirit of African brotherhood."
4.37 The Minutes of The Forty-Fourth Session of the Lake Chad Basin Comm
ission held at N'Djamena
on 26-28 October 1996, which include the resolutions adopted, make no re
ference to the question of
delimitation within Lake Chad (Annex NR 103)
4.38 In the same way no reference to the question of delimitation appear
s in the resolutions adopted by
the Commission at its Forty-Fifth Session in 1998 (Annex NR 104) or it
s Forty- Sixth Session in 1999
(Annex NR 105).
4.39 At the Tenth Summit of the Heads of State and Government held on 28
July 2000 in N'Djamena no
reference was made to the question of boundaries within the Lake Chad: s
ee Annex NR 106. Thus the
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position has not changed since the Ninth Summit in 1996.
4.40 Accordingly, Nigeria affirms the facts set forth and conclusions of
fered in Chapter 16 of the
Counter-Memorial.
H. The Present Legal Position
4.41 The present legal position can be summarised as follows:
First: The tasks pursued by the LCBC involved both delimitation and demarcati
on.
Second: The treaty instruments of the colonial period had not created a final
delimitation within Lake
Chad.
Third: The work of the LCBC did not produce an outcome which was legally bindi
ng on Nigeria.
Fourth: In any event, the operation intended to lead to an overall delimitatio
n of boundaries on Lake
Chad is legally without prejudice to the title to particular areas of th
e Lake Chad region inhering in
Nigeria as a consequence of the historical consolidation of title and th
e acquiescence of Cameroon.
4.42 In the next chapter of the present Rejoinder the issues of the historical consolidation of title and the
acquiescence of Cameroon will be examined.
__________
1 Annex MC 271, pp. 2239-2241 "After discussions and exchange of views,
the sub-commission retained as
working documents the following texts dealing with the delimitation of b
oundaries in Lake Chad:
- the Agreement between Great Britain and France concerning British and
French possessions to the East of the
Niger signed in London on 29 May 1906;
- Agreement to define the boundaries between Cameroon and the French Con
go signed in Berlin on 18 April
1908;
- Agreement between the United Kingdom and France on the delimitation of
the boundaries between the British
and French possessions East of the Niger, signed in London on 19 Februar
y 1910;
- Exchange of notes between the governments of His Majesty in the United
Kingdom and France concerning the
boundary between the French and British Cameroons effected in London on
9 January 1931."
2 Counter-Memorial, p. 500, para. 18.54 (footnotes omitted).
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3 Charles Rousseau, Droit International Public, Vol. III, Paris 1977, p. 269, para. 184: "By contrast with
delimitation, a legal act which is, on analysis, a decision in principle as to the determinat
ion of the elements
which constitute the boundary, demarcation means the collectivity of material operations which lead to the
transfer onto the terrain of the boundary line established by treaty or
agreement".
4 See Rousseau loc. cit. supra.
5 Brownlie, African Boundaries, London, 1979, p. 4.
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apter 5
PART II
LAKE CHAD
CHAPTER 5
THE BASES OF NIGERIA'S TITLE TO DARAK AND OTHER LAKE CHAD
VILLAGES
A. Introduction: The Bases of the Nigerian Title
5.1 The three bases of the Nigerian claim to title over Darak and the as
sociated villages are as follows:
(1) long occupation by Nigeria and by Nigerian nationals constituting
an historical consolidation of title;
(2) effective administration of the area by Nigeria, acting as soverei
gn, and an absence of protest; and
(3) manifestations of sovereignty by Nigeria together with the acquies
cence by Cameroon in Nigerian sovereignty
over Darak and the associated Lake Chad villages.
5.2 These three bases of claim apply both individually and jointly. In t
he view of the Nigerian Government each
of the bases of title would be sufficient on its own.
5.3 The villages in Lake Chad which are in dispute between Nigeria and C
ameroon are as follows:
1. Aisa Kura
2. Ba shakka
3. Chika'a
4. Darak
5. Darak Gana
6. Doron Liman
7. Doron Mallam (Doro Kirta)
8. Dororoya
9. Fagge
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10. Garin Wanzam
11. Gorea Changi
12. Gorea Gutun
13. Jribrillaram
14. Kafuram
15. Kamunna
16. Kanumburi
17. Karakaya
18. Kasuram Mareya
19. Katti Kime
20. Kirta Wulgo
21. Koloram
22. Logon Labi
23. Loko Naira
24. Mukdala
25. Murdas
26. Naga'a
27. Naira
28. Nimeri
29. Njia Buniba
30. Ramin Dorinna
31. Sabon Tumbu
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32. Sagir
33. Sokotoram.
5.4 It is to be noted that the villages of Wulgo and Dambaure are not in
dispute. Map 42 of the Atlas to the
Nigerian Counter-Memorial indicates thirty-five place names. This map, which is illustrative in p
urpose, includes
Dambaure and Wulgo (Numbers 20 and 21).
5.5 The thirty-three villages listed in paragraph 3 above have various c
haracteristics in common, have a very
similar economy, and form part of the Ngala Local Government Area ("LGA
") within Borno State, which
comprises a part of the Federal Republic of Nigeria. The administrative
centres for these villages are Ngala,
Gamboru, Wulgo and Darak. The locations of these and other Nigerian admi
nistrative centres in the Lake Chad
area of Borno State are depicted on Fig. 5.1.
5.6 Whilst some of these villages (including Sagir) lie to the West of
the provisional delimitation of Lake Chad
boundaries carried out by IGN, most of the villages lie to the East. The
legal relevance of the IGN delimitation has
been assessed in the previous Chapter, and it is a basic premise of the
present Chapter that title to the named
villages vests in Nigeria independently both of the present status of th
e delimitation as such, and of the incidence
of the provisional alignment.
5.7 The activities of the fishermen and farmers who founded these commun
ities were open and peaceful, and the
process of administration by Ngala Local Government Area, which followed
the process of settlement, was
equally open and peaceful.
5.8 At no stage prior to the present proceedings before the Court did th
e Government of Cameroon make any
reservation or protest. This is the more remarkable when it is recalled
that representatives of both the
Cameroonian and the Nigerian Government have been meeting on a regular b
asis in the forum of the Lake Chad
Basin Commission since its creation in 1964. Matters of joint concern su
ch as the joint military patrols of the lake
and lake bed were regularly discussed. There is however no record in the
LCBC Minutes of Meetings of any
discussion of alleged occupation by Nigeria of Cameroon villages, let alone protest by Cameroon. The general
issue of acquiescence on the part of Cameroon is addressed further below
at paragraphs 5.115 et seq.
5.9 Cameroon has complained that Nigeria does not propose a boundary lin
e (Reply paragraphs 3.03 and 3.33).
Although Nigeria believes that the international boundaries within Lake
Chad are yet to be determined (see
paragraphs 4.35-4.40 above), in order to increase the degree of specifi
city, Nigeria has reformulated its claim, and
this is depicted on Figs.5.2 and 5.3. This claim reflects the administrative patterns of the Nigerian Local
Governments Areas of Ngala and Marte. Ngala Local Government Area has ad
ministrative authority over the vast
majority of the villages in dispute (see further below, paragraphs 5.16
-5.82), and includes the administrative
centres of Wulgo and Darak. The easternmost limit of Ngala LGA is thus c
laimed by Nigeria as its boundary with
Cameroon, without prejudice to the other international boundaries within
Lake Chad which Nigeria considers are
still to be determined.
B. Historical Consolidation of Title: the Legal Concept
5.10 The elements of the legal concept of historical consolidation of ti
tle have been elaborated upon earlier in
Chapter 10, paragraphs 10.21-10.24, of the Nigerian Counter-Memorial, and also in the present Rejoinder Chapter
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3, paragraphs 3.42-3.51.
C. The Specific Components of the Historic Consolidation of Nigerian Tit
le
(i) The Attitude and Affiliations of the Population of Darak and the o
ther Lake Chad Villages
5.11 The legal relevance of the attitude and affiliations of the populat
ion in the territory in question has been
canvassed in Chapter 17 of the Counter-Memorial, paragraphs 17.17-17.19. The inhabitants of these villages
regard themselves as Nigerians and are in fact Nigerians by nationality.
The contemporaneous notes which
recorded interviews with the bulamas (headmen) of the villages in May 1998 show the significant sense of
allegiance to Nigeria by the people of the area. These notes are include
d as an Appendix to Chapter 17 of the
Counter-Memorial.
(ii) Historical Associations
5.12 The historical associations of the Lake Chad region have been descr
ibed in the Counter-Memorial, pages 420
to 421, paragraphs 17.20-17.23. The Government of Nigeria reaffirms the
importance and the reality of the
historical associations and, in particular, the preservation of the syst
em of traditional rulers and the significant role
of the Shehu of Bornu.
(iii) The Exercise of Authority by Traditional Rulers
5.13 The exercise of authority by the traditional rulers remains an impo
rtant element in the public order system of
modern Nigeria. The system applicable in the Lake Chad villages appertai
ning to Nigeria has been described in
the Counter-Memorial, pages 421-22, paragraphs 17.24-17.29. The Shehu of Borno and the tradi
tional rulers
constitute a part of the administration of the villages and the collecti
on of taxes.
(iv) The Settlement of Nationals of the Claimant State
5.14 As Nigeria has stated in the Counter-Memorial, in the formulation of title by a process of historical
consolidation there can be no doubt that the existence of long-establish
ed settlements of the nationals of the
claimant state plays a significant role. The settlement of nationals has
been treated as relevant in the jurisprudence
of international tribunals. The relevant material is set forth in the Counter-Memorial, pages 234-37, paragraphs
10.50-10.55.
5.15 The villages claimed by Nigeria are inhabited by Nigerians, who are
in the majority in all of the villages
except one (in which the majority are Malians, and these people live ha
ppily under Nigerian administration). In
none of them is there a significant Cameroonian population.
(v) Acts of Administration by the Federal Government of Nigeria and by
Borno State
(a) Introduction
5.16 As Nigeria has pointed out in her Counter-Memorial, a major component in the process of historical
consolidation is the evidence of peaceful possession and administration,
consisting of acts involving "a
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manifestation of sovereignty" in respect of the Lake Chad villages (cf. the Minquiers and Ecrehos case, ) or "acts
of such a character that they can be considered as involving a manifesta
tion of State authority" in respect of the
villages.2
5.17 For the greater convenience of the Court the Government of Nigeria
has decided to provide a consolidated
presentation of the evidence of Nigerian state activities, combining the
materials contained in the Counter-
Memorial with evidence which has become available since the preparation of that
pleading.
5.18 The evidence of administration and peaceful state activity by Niger
ia in the disputed villages will now be
reviewed.
(b) The Maintenance of Public Order
5.19 The contemporaneous notes (in the Appendix to Chapter 17 of the Counter-Memorial) show that the police
station in Darak was established by the Federal Government. This was in
1981: see Annex NR 107 which also
includes details of Nigerian police outposts at Wulgo, Chika'a, Kirta Wu
lgo and Doro Kirta (which is also known
as Doron Mallam).
5.20 There is also a mobile police unit stationed at Darak. The unit can
be seen in its general role of maintaining
public order, for example in 1987-1988 (NR 108). In addition to this,
there is an army unit stationed in Darak.
There is also a police station at Kirta Wulgo.
5.21 There have, in the past, been a number of occasions when armed band
its from other countries, in particular
from Chad, have harassed the Nigerian fishermen and villagers, extorting
money and, in one or two cases,
committing more serious acts of atrocity. It is usually the case that th
e small police station on Darak is under-
equipped to deal with such a serious situation. Therefore the Chairman o
f Ngala LGA is contacted and he requests
assistance from the Governor of Borno State. The Governor mobilises unit
s from the 21st Armoured Brigade of
the Nigerian Army, which is based at Maiduguri. These are sent to the ar
ea to act as peacekeepers, and protect the
villagers and fishermen from further attack or harassment.
5.22 The Divisional Police Headquarters is at Gamboru in Ngala Local Gov
ernment Area. There is ample
documentation of the police administration based upon the Gamboru-Ngala
Division. This includes lists of police
stations and the details of postings to Nigerian villages including Kirt
a Wulgo, Darak, Doro Kirta, Chika'a and
Katti Kime, in the period 1987 to 2000 (NR 109). In addition there are
crime diaries from Ngala Police Station for
the period 1987 to 1988 which refer to the following villages: Jribrilla
ram, Kasuram Mareya, Doro Kirta, Darak,
Katti Kime and Kirta Wulgo (NR 110). The locations of these villages a
nd those in the following paragraph are
shown in Fig. 5.2.
5.23 Police reports are available for the period 1987 to 1991 (NR 111)
. These reports derive from Ngala
Divisional Headquarters, from Doron Mallam (Doro Kirta) and from Darak
police station. In a report, for
instance, from Darak police station, dated 2 February 1989, reference is
made to a crime reported by a resident of
the village of Ramin Dorinna.
5.24 The Police are also involved in the monitoring of the "dumba" fishi
ng method in association with the Federal
Department of Fisheries, Borno State (Annex NR 112).
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(c) Taxation
5.25 The Lake Chad villages all pay community tax (Haraji) to Ngala Local Government Area in Borno State. An
extract from the Cash Book recording receipts for 1991 is at Annex NC-M
288. Examples of Community Tax
Receipts for 1991 are at Annex NC-M 289. These records relate to the fol
lowing villages:
Chika'a
Darak
Dororoya
Fagge
Garin Wanzam
Gorea Gutun
Kafuram
Katti Kime
Kirta Wulgo
Mukdala
Murdas
Naga'a
Njia Buniba
Ramin Dorinna
Sagir
5.26 Haraji Cash Books in respect of Wulgo village unit, recording receipts for 198
9 and 1990 are at Annexes NR
113 and NR 114. These records relate to the following villages: Chika'a,
Darak, Dororoya, Fagge, Garin Wanzam,
Gorea Changi, Gorea Gutun, Kafuram, Kamunna, Katti Kime, Kirta Wulgo, Mu
kdala, Murdas, Naga'a, Njia
Buniba, Ramin Dorinna, Sagir and Sokotoram.
5.27 Cattle tax (Jangali) is also paid by the residents of the villages to the Borno State auth
orities: see the extract
from the Jangali cash book for 1990 (NR 115), which relates to Naga'a, Katti Kime and
Darak. Reference to the
payment of cattle tax is also made in the contemporaneous notes appended
to Chapter 17 in the Counter-Memorial.
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5.28 The residents also pay an education levy. Extracts from the Educati
on Cash Book and Receipts for 1991 are
at Annex NC-M 290. They relate to the following villages:
Chika'a
Darak
Kafuram
Kasuram Mareya
Katti Kime
Kirta Wulgo
Naira
5.29 Extracts from the Wulgo Village Unit Education Cash Books for 1988
and 1989 are at Annexes NR 116 and
NR 117. These relate to the following villages: Chika'a, Darak, Darak Ga
na, Dororoya, Fagge, Garin Wanzam,
Gorea Gutun, Kafuram, Kamunna, Katti Kime, Kirta Wulgo, Mukdala, Murdas,
Naga'a, Naira, Njia Buniba,
Ramin Dorinna, Sagir and Sokotoram.
5.30 The residents of these villages originally paid all these various t
axes to Dikwa Native Authority in the 1960s
and 1970s: since the 1980s they have paid them to Ngala Local Government
Area. Further examples of individual
tax receipts for community taxes (Haraji) and for the education levy are at Annex NR 118.
5.31 The Wulgo Village Unit Haraji Tax Assessment Register for the tax year 1973-4 includes Chika'a and
Naga'a (NR 119). The Community Tax Assessment Register for 1980-1981 i
ncludes Katti Kime and Naga'a (NR
120). Community Tax Assessment Registers are also available for the yea
rs 1982-3 and 1984-5. Extracts of these
are at Annexes NR 121 and NR 122 and these include the villages of Chika
'a, Darak, Doro Kirta (Doron Mallam),
Dororoya, Fagge, Garin Wanzam, Gorea Changi, Gorea Gutun, Kafuram, Katti
Kime, Kirta Wulgo, Mukdala,
Murdas, Naga'a, Njia Buniba, Ramin Dorinna and Sagir.
5.32 In 1975 the District Head of Ngala wrote to the Village Head of Wul
go in the following terms:
'Greetings. I write to inform you that nomadic Fulanis are beginning to
troop into your territory.
They are currently in the region of Lake Chad around the area of Katti K
ime and Kirta Wulgo.
In view of the above therefore I herewith send two of my body guards who
should join your people
in approaching their people to collect poll tax.' (Annex NR 123)
5.33 There is an additional feature of the situation which is of conside
rable importance. At no time have the
residents of these villages paid taxes of any kind to the authorities in
Cameroon. Indeed, it is a matter of record
that the residents refused to pay taxes when Cameroon officials appeared
in their villages - see Appendix to
Chapter 17 of the Counter-Memorial.
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(d) Voluntary associations
5.34 The fishermen of the villages in the Lake Chad area form themselves
into voluntary associations in order to
improve the livelihood of the members. These associations have applied f
or loans and other assistance, on behalf
of the fishermen, to Ngala LGA. Receipts are given for payments in respe
ct of these loans (Annex NR 124).
(e) House Assessment
5.35 The purchase of a local government guest house at Darak was precede
d by a process of assessment by a
committee organised (in 1995) by the Ngala Local Government Council of
Borno State. The relevant document is
at Annex NC-M 291.
(f) Census Taking
5.36 The Nigerian National Census held a census in 1973 and 1991. Darak
and the other villages in the area were
enumerated as part of Wulgo Enumeration Area.
5.37 Documents available relate to claims for travel expenses in Decembe
r 1973 from the Village Head at Wulgo
for transporting the enumerator and supervisors from Gamboru to villages
in the Lake Chad Area (including
Chika'a) on enumeration days: see Annex NR 125. The claim is addressed
to the Divisional Census Officer,
through the Assistant Divisional Census Officer, Gamboru-Ngala.
5.38 The results of the 1991 census are at Annex NC-M 292. These include
returns for the following villages:
Chika'a
Darak
Darak Gana
Dororoya
Garin Wanzam
Jribrillaram
Kafuram
Kamunna
Katti Kime
Kirta Wulgo
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Murdas
Naga'a
Nimeri
Ramin Dorinna
Sabon Tumbu
(g) The Administration of Justice
5.39 The villages form a part of the Nigerian system of the administrati
on of justice. Cases arising in the Nigerian
villages are heard in the Wulgo Area Court, with the possibility of appe
al to the Ngala Upper Area Court. Records
available relate to the period 1981 to 1982: see Annexes NR 126 to NR 12
9. The parties involved in the recorded
cases were residents of Darak, Kirta Wulgo and Na'aga.
5.40 A typical record reads as follows:
'KALTUME MOHAMMED OF DARRACK : PLAINTIFF
VS
MUSA A. ADAMU OF DARRACK - DEFENDANT
CASE: DIVORCE
I, Judge Abdullahi Abaya, after having listened to both plaintiff and de
fendant in the case of wife-beating to the
point of drawing blood consistently for the past two years, conclude tha
t their stay together is no longer feasible.
I therefore pronounce the marriage dissolved. Furthermore, the Plaintiff
should safeguard her 3
months old pregnancy as a condition. Any of the parties can appeal if it
is not satisfied, at Ngala
Upper Area Court.'
(Wulgo Area Court, 11 November 1981).
(h) Public Education
5.41 The Ngala Local Government Authority has established primary school
s in Chika'a, Naga'a, Darak, and Kirta
Wulgo. The residents of Kafuram attend the school in Kirta Wulgo.
5.42 In August 1976 the Education Secretary of Ngala received the follow
ing letter from the District Head of
Ngala:
'Greetings. I take liberty in drawing your attention on the need for a c
onclusion of new classes
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within the lake area.
There is need to construct three classes in areas such as Kirta Wulgo, C
hika ...
I believe anytime you are ready the ward head of Wulgo (Lawan) will be
pleased to show you a
location.
I hope you understand.' (Annex NR 130).
5.43 In November 1992, there was correspondence between the Headmaster o
f Naga'a Primary School and the
Local Education Authority regarding the building of two classrooms to ac
commodate pupils, and the wardhead of
Naga'a was prompted to build a temporary shelter to achieve this (Annex
NR 131).
(i) Provision of Public Health
5.44 The Ngala Local Government Authority and Borno State have created a
system of health care in the Lake
Chad villages involving on-site provision of care and various forms of p
reventive medicine. Naga'a and Kirta
Wulgo have their own clinics.
5.45 Mobile clinics are provided for the villages of Chika'a and Darak.
The residents of Kafuram attend the clinic
at Kirta Wulgo. The Ministry of Health Mobile Clinic reports monthly to
the Director-General, Ministry of
Health, Maiduguri. Thus in a letter dated 13 July 1988 it is stated that
"the mobile clinic left Maiduguri on 4 June
1988 to Ngala Local Government Area to the following villages: Doro Kirt
a, Kirta Wulgo ... Darak". The
numbers of people with measles and whooping cough in Darak are listed (
Annex NC-M 295).
5.46 The Primary Health Care Department of Ngala Local Government Area p
rovides a system of disease control
and preventive medicine in the villages. The Health Post at Darak was th
e site of one of several dispensaries
provided by the Ngala LGA (Annexes NC-M 296 and NC-M 297).
5.47 Reports of outbreaks of measles and whooping cough at Darak were re
sponded to by appropriate action on
the part of the authorities in Maiduguri (Annexes NC-M 298 to NC-M 302)
. Requisitions were duly made for the
provision of drugs and health assistance. In November 1994 a situation r
eport referred to an outbreak of cholera in
the villages of Darak, Chika'a, Naga'a and Sagir (Annex NC-M 303).
5.48 Cases of vomiting and diarrhoea in the villages were treated as a r
esult of action by the Disease Control Unit
of Ngala, L.G.A (Annex NC-M 304). A detailed report, dated 22 November
1994, relates to the situation in
Chika'a, Doron Liman, Naga'a, and Darak (Annex NC-M 305). Later report
s concern the situation in Chika'a,
Dororoya, Naga'a, and Darak (Annexes NC-M 306 and NC-M 307).
5.49 The Public Health Department of Ngala LGA also operates a programme
for the prevention of epidemic
disease, in conjunction with the Ministry of Health of Borno State (Ann
exes NC-M 308 to NC-M 310). The
programme includes an ongoing vaccination exercise (Annex NC-M 311) an
d a programme of surveillance of
infectious diseases.
5.50 There is a letter dated 24 November 1992 from Kirta Wulgo health cl
inic to the co-ordinator of the Health
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Care Department of Ngala Local Government concerning flood disasters. Th
e manuscript note on the following
page says "the action on pipe line is for those in the Darrack areas for assistance
" (Annex NC-M 313).
5.51 A letter dated 27 November 1992 from the Ngala Local Government Pri
mary Health Department is headed
"Situation Report on Flood Disaster in Darrak". It appears that there wa
s an outbreak of disease after a flood in
Darak. In fact, 15 people were injured when running from fast flowing wa
ter (Annex NC-M 314).
5.52 There is a letter dated 3 August 1993 from Katti Kime Primary Healt
h Care Department of Ngala Local
Government authority to the co-ordinator for health care reporting on th
e outbreak of measles. It lists the names
and ages of children with measles in Katti Kime (Annex NC-M 315).
5.53 A letter from the Health Office in Gamboru to the Environmental Hea
lth Officer in Maiduguri dated 31 May
1996 reports on an outbreak of gastro-enteritis in Darak and comments on
the actions taken by the Local Council
(Annex NR 132). A Disease Control Unit was set up in Darak to cope wit
h the outbreak (Annex NC-M 312).
5.54 There is a letter dated 25 August 1996 from Darrak Village unit to
the District Head of Ngala L.G.A.
concerning the outbreak of cholera in Chika'a and Naga'a and requesting
help. This is followed by hand-written
correspondence within the Local Government offices (Annex NC-M 316).
(j) Environmental Sanitation
5.55 The Medical and Health Department of the Ngala L.G.A. has since 197
7 (at least) been concerned with
environmental sanitation in the villages (Annex NC-M 317). In particul
ar, measures have been taken to introduce
water sanitation and treatment in Darak (Annex NC-M 318).
(k) General Powers of Administration
5.56 A letter dated 1 July 1996 from the Department of State Services of
Ngala Local Government Authority to
the Chairman states:
"Although the police and this service have jointly intensified efforts t
o frustrate and or prevent
further use of the 'Dumba' on the shores of Lake Chad which fall within
Nigerian territorial waters,
the situation is still pregnant with confusion ....
The Police had on 18th June 1996 invited and charged the duo of the Haus
a community leader in
Darrak, one Mohammed DAN LANSU and the Secretary General of the so calle
d faceless Darrak
multi-purpose co-operative society, Ali MOHAMMED, in its continued effor
ts to stop completely
the use of dumba of the shores of Lake Chad" (Annex NC-M 319).
5.57 A letter dated 2 October 1996 from the Administration Department to
the Chairman of the Local Government
Authority states:
"I wish to write and refer to the above subject matter [Request for Tran
sport and Fuel on Security
Purposes at Lake Chad] and request for transport and fuel to enable the
Local Government Security
Secretary, the village head of Darrak, the Council representing Wulgo/Tu
no Kalia and a member of
the SSS on a fact finding mission on [a] matter relating to the security
of the Local
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Government." (Annex NC-M 320)
5.58 A letter dated 7 March 1997 from Borno State to Ngala Local Governm
ent Council states:
"Report on the Lawan of Darrak.
I have been directed to request you to inform the village head of Darrak
to see the Military
Administrator through the Director General, Council Affairs ... on Monda
y 10th March 1997."
There is a letter dated 7 March 1997 from Ngala Local Government to the
village head of Darak requesting the
same (Annex NC-M 321).
5.59 There is written correspondence within Ngala Local Council concerni
ng the demolishing of the dumba fish
traps by the Nigerian army. This was done in the Darak area and the army
stayed in Darak during the operation
(Annex NC-M 322).
5.60 A letter dated 18 September 1996 from Ngala Local Government Counci
l to the district head of Ngala states:
"I am directed to write ... and inform you of the earlier decision of th
e Security Committee
Members to remove Bulama Dan Lantso, as the Bulama of Darrak" (Annex NC
-M 323).
(l) The Appointment of Village and Ward Headmen
5.61 The appointment of the village headmen (bulama) was traditionally within the remit of authority of the
Shehu of Borno. More recently, although it remains part of the function
of the Shehu or Lawan, the Governor of
Borno State has to give final approval, and he can appoint and dismiss a
bulama as appropriate (see Annex NC-M
294). Salaries of headmen are paid by the relevant local government aut
hority.
5.62 It was the responsibility of the District Head of Ngala to appoint
ward heads in the Lake Chad region. Thus
in a letter dated 29 April 1969 the District Head of Ngala instructs the
Village Head of Wulgo as follows:
"This is to inform you that you should go down to Kirta Wulgo and instal
l Bulama Malum Fannami
as the Ward Head of Kirta Wulgo.
You should also inform the people of the area that Bulama's domain will
include Ndigiri, Yerwa
Kura, Kusuma, Sigal and also all the towns in the lake." (Annex NR 133)
.
5.63 In a letter dated 15 May 1969 the District Head of Ngala instructs
the same Village Head "to travel to Chika
town and install Bulama Kachalla as the ward head of Chika" (Annex NR 1
34).
5.64 In correspondence from February-March 1991, there is a letter from
the Dikwa Emirate Council to the
District Head of Ngala requesting nominations for Village Heads of new v
illage units, including Darak. The reply
lists the Curricula Vitae of the suitable candidates and a letter of appointment and invitation t
o the appointee to
attend the turbaning ceremony was sent (Annex NR 135).
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(m) Registration of Electors
5.65 A substantial proportion of the population in the Lake Chad village
s are registered as electors for the
purposes of Nigerian legislation. There is no evidence that the inhabita
nts vote in Cameroonian elections.
5.66 In the Nigerian Local Government Elections in both 1988 and 1989, D
arak and Wulgo constituted an
electoral ward. Bukar Torobe was elected as councillor to represent the
ward in the Ngala Local Government
Council. His Certificate of Election is at Annex NC-M 328.
5.67 In the 1993 Local Government Election, Mohammed Lawan was elected a
s councillor for the ward. In the
1996 and 1997 Local Government Elections, Jidda Khurso Mohammed was elec
ted as councillor. His Certificate
of Election is also at NC-M 328.
5.68 In the 1997/98 Local Government Elections, Mohammed Zainami was ele
cted councillor. For the 1998
election, Darak was made a separate electoral ward. Mohammed Zainami was
re-elected as councillor.
(n) Licensing and Regulation of Fishing
5.69 The contemporaneous notes reveal that Ngala LGA licenses fishing in
the area, including the villages. Both
the Borno State Government and Ngala LGA provide fishing nets and equipm
ent. In this context Ngala LGA
supervises and regulates the fisheries.
5.70 The Federal Department of Fisheries, Borno State, has carried out a
number of activities in respect of the
fishing on the Lake, which include the provision of development assistan
ce to Darak fishermen. It has set up an
outpost on Darak and in 1982 provided 10 ton cold-room capacity to suppl
y ice blocks to the fishermen at Darak.
A summary report of these activities is at Annex NR 136.
5.71 In December 1992, the Nigerian Institute for Freshwater Fisheries R
esearch, a department of the Federal
Ministry of Science and Technology approved the establishment of semi-fi
shing ponds for the production of fresh
fish by the Darrak Multi-Purpose Co-operative Society (Annex NR 137).
The project involved the bulamas of
Darak, Darak Gana, Dororoya, Ramin Dorinna, Garin Wanzam, Chika, Naga'a,
Doro Kirta, Kafuram and other
Lake Chad villages. In October 1993, the same Institute also approved th
e use of cross-water fishing traps in Lake
Chad by the same Society (Annex NR 138).
5.72 In co-operation with the police (see above paragraph 5.24), measu
res are taken by Ngala LGA to deter and
terminate the use of inappropriate fishing methods and, in particular, t
he illegal use of dumba (fishing barriers).
As part of this policy Ngala LGA has created (in 1995) the Dumba Demol
ishing Committee (Annex NC-M 324).
These measures provoked legal action, or at least the threat of legal pr
oceedings, by the Darrak Co-operative
Multipurpose Society Ltd (Annex NC-M 325). It is to be noted that the
proceedings envisaged would have been in
the Nigerian legal system.
5.73 In January 1996 the same legal representatives petitioned the then
Military Governor of Borno State on the
same subject (Annex NC-M 326). In June 1996, the Governor's Office wro
te to the Chairman of Ngala Local
Government Council requesting that action be taken to restrain those ind
ividuals still using the "dumba" method
of fishing (Annex NR 139).
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(o) The Regulation of Trading
5.74 The Ngala local authority has the power to regulate trading when it
deems this to be necessary. Thus in a
letter dated 14 May 1992 regarding Darak Patent Vendors, Ngala Local Gov
ernment Council stated "that the
Local Government have a notice of patent vendor's serving in Darak. They
are totaling to about Twelve, and we
had directed the early this year to go and get their State Licence and t
hey were on the process" (Annex NC-M
327).
(p) Distribution of Disaster Relief
5.75 In 1982 and 1983 disastrous bush fires afflicted Chika'a. In 1982 t
he Village Head turned to Ngala LGA
requesting help (Annex NR 140), and in 1983 the Bulama turned to the L
awan (Traditional Ruler) of Wulgo for
assistance (Annex NR 141). The 1983 fire destroyed thirty houses.
5.76 The village heads of Katti Kime and Naga'a similarly wrote to Ngala
LGA requesting help after fire disasters
in July 1983 and March 1984 respectively (Annexes NR 142 and NR 143).
(q) Immigration
5.77 The Nigerian Immigration Service has been routinely patrolling and
keeping surveillance on Darak and the
Lake Chad villages since the late 1960s. In 1973, an immigration control
post was established at Gamboru, and
from here the Darak area was monitored (Annex NR 144).
5.78 A full control post was established at Darak in October 1994, with
an initial staff strength of ten officers.
Documents relating to the administration of Darak out-post in 1994, both
when it was still a patrol post and after it
had been established as a control post, are at Annex NR 145.
(r) Development Administration
5.79 The Ngala Local Government Authority of Borno State has either prov
ided assistance to the villages or has
informed the village communities that assistance is available, for examp
le, for the construction of wells.
5.80 Development assistance has been provided to the following villages:
Naga'a - a school, a clinic, a cement well, and provision of fertilizer
and pesticides.
Gorea Changi - construction of a well.
Darak - mobile services, including a clinic, provision of drugs, provisi
on of fertilizer and pesticides,
construction of a well, provision of nets, maintenance of navigability o
f waterway to Katti Kime,
assistance in times of flood damage.
Nimeri - provision of fishing nets and fishing equipment.
Kirta Wulgo - a clinic and a school.
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5.81 In 1997 the Ngala Local Government made a grant for the improvement
of the road leading to the Katti Kime/
Darak area (Annex NC-M 293).
(vi) The General Pattern of Claims to the Villages
5.82 In the previous section the evidence of the exercise of sovereignty
, and the peaceful exercise of government
functions, by Ngala L.G.A. on behalf of Nigeria, has been examined. In d
ue course it will be necessary to analyse
the evidence presented on behalf of Cameroon. However, as a question of
the logical order of things, it is useful to
undertake an analytical survey of the pattern of claims and also the evi
dential picture in respect of the individual
villages claimed by Nigeria.
(a) Villages Claimed by Nigeria Alone
5.83 The first category of villages to emerge consists of those villages
claimed by Nigeria but not the subject of a
claim in the pleadings of Cameroon. There are five villages in this cate
gory, as follows:
Doron Mallam
Jribrillaram
Koloram
Kirta Wulgo
Sabon Tumbu
5.84 It is reasonable to conclude that these villages are not claimed by
Cameroon. Sagir is admitted to be Nigerian
in the Reply, paragraph 3.87. However, Sagir is included in the locations claimed in
pages 147 to 153 of the Reply.
(b) Villages Claimed by Cameroon in Respect of Which Evidence of Alleg
ed State Activity is Presented
5.85 The second category consists of those villages claimed by Cameroon
and in respect of which evidence of
state activity by Cameroon is presented. This category consists of eight
een villages as follows:
Aisa Kura
Bashakka
Chika'a
Darak
Darak Gana
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Fagge
Gorea Changi
Gorea Gutun
Kafuram
Kamunna
Karakaya
Katti Kime
Murdas
Naga'a
Naira
Nimeri
Sagir
Sokotoram
5.86 At this stage the analysis reveals that, of thirty-three villages c
laimed by Nigeria, fifteen are not claimed by
Cameroon on the basis of evidence of State activity.
(c) Villages Evacuated As a Consequence of Catastrophic Flooding or Ba
nditry by Chadian Nationals
5.87 In the last ten months the following villages have been temporarily
evacuated as a consequence of
catastrophic flooding:
Doron Kirta
Dororoya
Kafuram
Katti Kime
Njia Buniba
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Ramin Dorinna
5.88 Also in the recent past certain villages have been evacuated as a r
esult of banditry carried out by Chadian
nationals, namely:
Aisa Kura
Ba shakka
Loko Naira
Naira
Nimeri
5.89 It is of particular significance that the Nigerian residents displa
ced by flooding or banditry have moved to
other Nigerian villages, and, in particular, to Darak, Chika'a and Naga'
a.
5.90 Whilst it is appropriate that the Court should be put in possession
of this information, it is to be appreciated
that, as a matter of principle, such temporary and adventitious relocati
on cannot affect the existing evidence of
Nigerian title. These episodes do not constitute evidence of abandonment
of title.
(d) Villages Accepted by Cameroon As Occupied by the Nigerian Army
5.91 In the Reply the Government of Cameroon contends that ten villages are 'occupied by
the Nigerian army': see
the Reply, pages 147-53, and Annexes RC 225 and 230. The list provided by Cameroo
n in the text of the Reply is
as follows:
Chika'a
Darak
Gorea Changi
Gorea Gutun
Kafuram
Kamunna
Katti Kime
Murdas
Naga'a
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Sagir
5.92 The number involved (according to documents exhibited by Cameroon)
is sixteen villages. The correct
number appears to be ten, as above, based upon the Cameroon Reply, pages 147-153. Katti Kime II is referred to
twice in Annex RC 230 and the two Katti Kime villages (I and II) are r
eferred to separately in Annex RC 225.
5.93 The location of one of the villages mentioned in the Annexes referr
ed to in the previous paragraph, Hile
Dalgui, has not been indicated by Cameroon and, in any case, is not one
of the villages claimed by Nigeria.
5.94 In any event, given the long-standing exercise of sovereignty and a
dministration by Nigeria in this sector of
the Lake Chad region, it is inappropriate to allege that any activity by
the Nigerian security forces constitutes an
'occupation'. Such an allegation is also, in legal terms, question-beggi
ng. If the Court determines the issue of title
in favour of Nigeria, the 'occupation' is confirmed to be in accordance
with international law.
5.95 A major omission is apparent from the Cameroon presentation in this
context. Apart from the ten villages
said to be 'occupied' by the Nigerian Army, there are eighteen villages
claimed by Nigeria, and administered as
part of Borno State, and which are not included in the list of 'occupied
villages'. The eighteen villages are as
follows:
Aisa Kura
Ba shakka
Darak Gana
Doron Liman
Dororoya
Fagge
Garin Wanzam
Kanumburi
Karakaya
Kasuram Mareya
Logon Labi
Loko Naira
Mukdala
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Naira
Nimeri
Njia Buniba
Ramin Dorinna
Sokotoram
(e) Conclusion
5.96 The analysis of the pleadings leads to the following conclusions. O
f the thirty-three villages claimed by
Nigeria:
- The claims to five villages are not contested by Cameroon: see above,
paragraph 5.83.
- Cameroon accepts that ten villages claimed by Nigeria are within the c
ontrol of Nigeria: see above, paragraphs
5.91-5.93.
- Apart from the ten villages described as being occupied by Nigeria, th
ere are eighteen other villages also
administered by Nigeria à titre de souverain.
- Fifteen of the villages claimed by Cameroon are not the subject of any
evidence of State activity presented by
Cameroon.
5.97 The position is more easily understood if the different categories
are shown in relation to each other: see the
table below.
Villages claimed Villages claimed Villages claimed Villages claimed by Nigeria
for which Cameroon
By Nigeria by Cameroon by Cameroon but produces no evidence
occupied by Nigeria
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1. Aisa Kura 1. Aisa Kura 1. Chika'a 1. Doron Liman
2. Ba shakka 2. Ba shakka 2. Darak 2. Doron Mallam
3. Chika'a 3. Chika'a 3. Gorea Changi 3. Dororoya
4. Darak 4. Darak 4. Gorea Gutun 4. Garin Wanzam
5. Darak Gana 5. Darak Gana 5. Kafuram 5. Jribrillaram
6. Doron Liman 6. Fagge 6. Kamunna 6. Kanumburi
7. Doron Mallam 7. Gorea Changi 7. Katti Kime 7. Kasuram Mareya
8. Dororoya 8. Gorea Gutun 8. Murdas 8. Kirta Wulgo
9. Fagge 9. Kafuram 9. Naga'a 9. Koloram
10. Garin Wanzam 10. Kamunna 10. Sagir 10. Logon Labi
11. Gorea Changi 11. Karakaya According to the 11. Loko Naira
12. Gorea Gutun 12. Katti Kime Reply, pp. 147-53. 12. Mukdala
13. Jribrillaram 13. Murdas Other sources 13. Njia Buniba
14. Kafuram 14. Naga'a provide a different 14. Ramin Dorinna
15. Kamunna 15. Naira list. 15. Sabon Tumbu
16. Kanumburi 16. Nimeri
17. Karakaya 17. Sagir
18. Kasuram Mareya 18. Sokotoram
19. Katti Kime
20. Kirta Wulgo
21. Koloram
22. Logon Labi
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23. Loko Naira
24. Mukdala
25. Murdas
26. Naga'a
27. Naira
28. Nimeri
29. Njia Buniba
30. Ramin Dorinna
31. Sabon Tumbu
32. Sagir
33. Sokotoram
5.98 Of the eighteen villages claimed by Cameroon, ten are (according t
o Cameroon) occupied by Nigeria. In
respect of fifteen of the villages claimed by Nigeria, Cameroon has prod
uced no evidence to challenge Nigeria's
claim.
(vii) The Evidence Presented in the Cameroon Pleadings
5.99 In its Memorial Cameroon did not present any evidence relating to the exercise of state
activities in the Lake
Chad region: see the Memorial, pages 405 to 413. In the Reply such evidence is presented at pages 137-139
(paragraphs 3.71-3.83) and 147-53, and also in Annex RC 225.
5.100 The evidence presented on behalf of Cameroon has serious flaws. In
the first place the evidence is confined
to the years 1982 to 1988, with certain exceptions. The evidence of Nige
rian activities covers a substantially
longer period. There is also a contradiction in the fact that evidence i
s presented by Cameroon in respect of
villages which, in the view of Cameroon, are under the control of Nigeri
a, that is to say, 'occupied' by Nigerian
security forces.
5.101 The Cameroon Reply avoids any examination of the evidence of peaceful possession produced
by Nigeria in
the Counter-Memorial: see the Reply, pages 137-139, 147-153, and 536-547.
5.102 The Cameroon Government has produced no evidence relating to fifte
en of the villages claimed by Nigeria:
see column four of the Table above.
5.103 In respect of the following villages only two documents have been
produced by Cameroon (see the Reply
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pages 147-153):
Aisa Kura
Bashakka
Darak Gana
Karakaya
Naira
Nimeri
5.104 In respect of these villages there is in truth no respectable evid
ence of the exercise of sovereignty. The
documents involved are the same in each case: that is Annexes RC 109 and
119, which relate to a single
administrative tour of the district of Hile-Alifa. It is not established
that the tour was actually undertaken.
5.105 It is also necessary to observe that many of the documents produce
d on behalf of Cameroon are entirely
programmatic in content, involving the planning of census tours and so f
orth, in the absence of evidence that the
events actually occurred.
5.106 The evidence concerning state activities must also be related to t
he fact that Cameroon made no protests in
face of the Nigerian administration of the villages until 1994: see belo
w, paragraphs 5.111-5.120. This silence on
the part of Cameroon is of particular significance in light of the fact
that Nigeria's state activities were entirely
open and visible to all.
(viii) Conclusion: the Elements of Historical Consolidation
5.107 The various elements constituting the process of historical consol
idation of title can now be summarised:
First: The attitude and affiliations of the population of the Lake Chad villa
ges indicate an exclusive association
with the Borno State of Nigeria.
Second: The historical associations of the region constitute strong evidence o
f the gravitational pull, in
geopolitical and economic terms, of the Borno Emirate (and its successo
rs) in relation to the shores of Lake Chad
and, more especially, the southern sector.
Third: The historical associations of the area in question are reinforced and
complemented by the contemporary
political power and constitutional status of the Nigerian traditional ru
lers and, in the region concerned, of His
Royal Highness, the Shehu of Borno.
Fourth: The villages are inhabited by Nigerian nationals.
Fifth: The Lake Chad villages have been administered as part of Nigeria for a
considerable period of time.
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5.108 In the context of the process of historical consolidation of title
in respect of the villages claimed by Nigeria,
it is to be understood that the process has not had the effect of displa
cing the definitive title of Cameroon or of any
other riparian State. In the absence of a final delimitation within the
Lake Chad region, the areas within the lake
necessarily have the status of territory the title to which is undetermi
ned.
5.109 The existence of such a category is recognised in the literature:
see Oppenheim's International Law, 9 th ed.,
th st
Vol. I, 1992, pp. 566-7; Brownlie, Principles of Public International Law, 5 ed., 1998, pp. 108-9; ibid., 1 ed.,
1966, pp. 101-2. The concept of a title which is "indeterminate" was rec
ognised by the Arbitration Tribunal in the
First Award in the Eritrea/Yemen Case: see International Law Reports Vol. 114, p. 2 at pp. 46-58, paragraphs 145-
88.
5.110 In the Counter-Memorial an account of the precise geography of Lake Chad is available in Chapte
r 13. The
sources reveal that the riparian States in the LCBC and in other fora re
cognise a conventional or 'Normal Lake
Chad': see Figure 13.6 and Maps 43 to 52 in the Atlas to the Counter-Memorial.
5.111 The margin or shoreline of the Normal Lake Chad constitutes the si
gnificant line of division between the
mainlands of Nigeria and the other riparian States and the areas the tit
le to which remains indeterminate.
5.112 It must follow that the process of historical consolidation of tit
le has occurred in a context in which a title
was created, and not displaced. It is also particularly appropriate that
the process of consolidation of title should
lead to a certainty which was otherwise lacking.
5.113 It must also follow that villages on the mainland of Nigeria are n
ot within the category of villages which are
in dispute. Thus Wulgo, for example, is not in dispute and, indeed, is n
ot claimed by Cameroon.
5.114 To these elements in the process of historical consolidation the s
ignificant element of Cameroonian
acquiescence must be added. This will be examined in the following secti
on.
D. The Acquiescence of Cameroon in face of the Peaceful Exercise of Sove
reignty by Nigeria
(ix) The Legal Relevance of Acquiescence
5.115 As Nigeria indicated in the Counter-Memorial, acquiescence constitutes a major element in the process of
historical consolidation of title. In consequence, the first, but by no
means the only, role of acquiescence, is played
alongside the other elements of historical consolidation reviewed above.
5.116 The second, and independent, role of acquiescence is that of confi
rming a title on the basis of the peaceful
possession of the territory in dispute, that is to say, the effective ad
ministration of the Lake Chad villages by
Nigeria, acting as sovereign, together with an absence of protest on the
part of Cameroon. In this connection a
passage from the Judgment of the Chamber in the Land, Island and Maritime Frontier Dispute provides a general
paradigm: see the Counter-Memorial, paragraph 10.124.
5.117 In the third place, acquiescence may be characterised as the main
component of title, that is, providing the
essence and very foundation of title rather than a confirmation of a tit
le logically anterior to and independent of
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the process of acquiescence.
(x) The Evidence of Acquiescence by Cameroon
5.118 The villages claimed by Nigeria contain significant and well-estab
lished communities. The population sizes
are approximately as follows:
Darak 20,000
Jribrillaram 8,000
Kirta Wulgo 6,000
Koloram 5,000
Naga'a 4,000
Katti Kime 4,000
Chika'a 3,000
Sabon Tumbu 2,000
Garin Wanzam 2,000
Doron Liman 1,000
Gorea Changi 550
Fagge 530
Gorea Gutun 500
Ramin Dorinna 500
Sagir 500
Doron Mallam 400
Darak Gana 400
Kafuram 300
Murdas 300
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Nimeri 200
Kamunna 120
Mukdala 100
Naira 100
Dororoya 100
5.119 The activities of the fishermen and farmers who founded these comm
unities were open and peaceful, and
the process of administration by Ngala L.G.A., which followed the proces
s of settlement, was equally open and
peaceful. At no stage prior to the present proceedings before the Court
did the Government of Cameroon make
any reservation or protest.
5.120 The Government of Cameroon began the present proceedings by an Application filed on 29 March 1994.
This Application defined the "subject of the dispute" as follows:
"1. The dispute relates essentially to the question of sovereignty over
the Bakassi Peninsula, a
territory of approximately 665 sq km lying between Cross River and the R
io del Rey, the Republic
of Cameroon's title to which is contested by the Federal Republic of Nig
eria. In so doing, the
Government of the Republic of Nigeria is contesting the long-established
frontier between the two
countries.
2. Since the end of 1993, this contestation has taken the form of an agg
ression by the Federal
Republic of Nigeria, whose troops are occupying several Cameroonian loca
lities in the Bakassi
Peninsula. This has resulted in great prejudice to the Republic of Camer
oon, for which the Court is
respectfully requested to order reparation.
3. Moreover, the maritime boundary between the two States has been the s
ubject of several
delimitation agreements, from the Agreement of 11 March 1913 to the Maro
ua Declaration of 1
June 1975. However, this delimitation has remained a partial one and, de
spite many attempts to
complete it, the two parties have been unable to do so. In order to avoi
d further incidents between
the two countries, the Republic of Cameroon requests the Court to determ
ine the course of the
maritime boundary between the two States beyond the line fixed in 1975."
5.121 Thus, in the Application dated 29 March 1994 the "subject of the dispute" involved no reference
to issues
relating to the Lake Chad region. This silence provides a necessary pers
pective in which to evaluate the
Cameroonian assertions that in 1987 there was an 'invasion' of Cameroon'
s territory by Nigerian forces: see the
Reply, pages 536-547 and pages 567-569.
5.122 Consequently, there is no reference to any issues relating to the
Lake Chad region. The first reference to the
Lake Chad region occurs in the Cameroonian Note to Nigeria dated 11 Apri
l 1994 (Annex NC-M 287 and Annexe
MC 355) which reads (in material part) as follows:
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"The Ministry of External Relations of the Republic of Cameroon presents
its compliments to the
Embassy of the Federal Republic of Nigeria in Yaoundé, and has the ho
nour to draw the attention of
the Embassy to the following.
Nigerian nationals have occupied the Cameroonian locality known as Kontc
ha (Faro and Deo
Division) in the Adamawoua Province of Cameroon. The Cameroonian author
ities have observed
that in the past, Nigerian military occupation of Cameroonian territory
generally followed the illegal
occupation of parts of her territory by Nigerian citizens. The Nigerian military occupation of Darak
and parts of the Bakassi Peninsula are cases in point". (emphasis added
)
5.123 The issue was then taken up in the Additional Application introduced by the Government of Cameroon on 6
June 1994, which refers (in paragraph 11) to the "new dispute". In thi
s instrument the Government of Cameroon
describes the "subject of the dispute" as follows:
"1. This aspect of the dispute relates essentially to the question of so
vereignty over a part of the
territory of Cameroon in the area of Lake Chad - located between the Cam
eroon-Nigeria frontier
and the Cameroon-Chad frontier and extending to around the middle of the
remaining waters - the
Republic of Cameroon's title to which is contested by the Federal Republ
ic of Nigeria; and to the
course of the boundary between the Republic of Cameroon and the Federal
Republic of Nigeria,
from Lake Chad to the sea. By its action, the government of the Federal
Republic of Nigeria is once
again contesting the long-established frontier between the two countries
, which has recently been
defined in a multilateral context.
2. That contestation initially took the form of a massive introduction of
Nigerian nationals into the
disputed area, followed by an introduction of Nigerian security forces, effected prior to the official
statement of its claim by the Government of the Federal Republic of Nige
ria quite recently, for the
first time, in a Note dated 14 April 1994. It is a decision on the title
to that territory and sovereignty
over it that the Court is respectfully requested to give at the same tim
e as its decision on the
requests submitted by the Republic of Cameroon in its initial Applicatio
n dated 29 March
1994." (emphasis added)
5.124 The Cameroonian claim, as it appears in the Additional Application, takes the form of a response to a
Nigerian Note dated 14 April 1994: see Annex MC 356. In reality, this Ni
gerian Note was a response to the
Cameroonian Note, dated 11 April 1994, referred to in paragraph 5.122 ab
ove. The Nigerian Note constitutes the
first Nigerian reference to the issue concerning Lake Chad and reads as
follows (in material part):
"It is both unfortunate and unacceptable that Darak which has always bee
n part and parcel of Wulgo
District of Ngala Local Government area of Borno State of Nigeria and wh
ich has since time
immemorial been administered as such, is now being claimed as part of Ca
meroon territory."
5.125 The evidence available shows that the Nigerian villages have, in g
reater part, existed for periods of between
20 and 40 years. The terrain is flat and open and the activities in the
Nigerian villages have been public and
unconcealed. The Cameroonian Additional Application refers to "a massive introduction of Nigerian nationals into
the disputed area". The conclusion which necessarily presents itself is
that the Government of Cameroon had for
decades maintained a silence in face of the long established and public
Nigerian presence.
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5.126 The Government of Cameroon confirms the absence of any protest pri
or to 1994 in its pleadings. The
Memorial, under the heading 'Les protestations camerounaises', refers only to a
single Note dated 21 April 1994
(Annex MC 357): see the Memorial, pages 589-590.
5.127 The Reply (pages 142-143) denies acquiescence by Cameroon and cites the Cameroo
n Note dated 21 April
1994, which preceded the Additional Application dated 6 June 1994 by only a few weeks.
(xi) The Military Initiatives by Cameroon in 1987
5.128 In its Memorial Cameroon contends that in February 1987 certain villages appertaining t
o Cameroon were
invaded by Nigerian civilians armed with machetes, and that this episode
was followed by a military occupation
by Nigeria, which began on 2 May 1987: see the Memorial, pages 587-589, paragraphs 6.81-6.86. Similar
assertions appear in the Reply at pages 536-547 (paragraphs 11.165-11.214) and pages 567-569 (parag
raphs 12.25-
12.28).
5.129 It is the position of Nigeria that the incidents in May 1987 compl
ained of by Cameroon involved violent
initiatives by Cameroonian security forces. These initiatives by Cameroo
n disturbed a Nigerian administrative
status quo. The Cameroonian attack of 1987 was prefigured by a visit by Cameroonia
n officials to Kirta Wulgo in
1985, in response to which Nigeria presented a Note Verbale to Cameroon:
see the telegram of the Nigerian
Ministry of External Affairs dated 26 March 1985 (Annex NC-M 376). The
contents of this telegram indicate that
there was a status quo consisting of a Nigerian administration in place.
5.130 The events of May 1987 again involved initiatives by Cameroon: see
the Nigerian internal military and
police reports (Annexes NC-M 379, NC-M 380 and NC-M 381). In response
Nigeria sent a protest, dated 8 May
1987, which reads (in material part):
"The Ministry of External Affairs of the Federal Republic of Nigeria pre
sents its compliments to the
Embassy of the Republic of Cameroun and has the honour to inform the Emb
assy that reports have
reached the Ministry concerning intrusion by Camerounian soldiers and ag
ents into some border
villages in Ngala Local Government Area of Borno State in the Federal Re
public of Nigeria. The
reports also indicate that this has not been the first time such inciden
ts have occurred. Reports
further state that not only were the Nigerian nationals molested, but th
eir villages were also
occupied by the Camerounian soldiers and agents, the Nigerian flags in t
he villages were pulled
down and burnt, and the Cameroun flag was hoisted in their place, even o
n Nigerian territory.
The Ministry hereby calls the attention of the Embassy to this unfriendl
y and flagrant act of trespass
committed in spite of the cordial relations existing between Nigeria and
Cameroun, and hereby
registers the concern and dismay of the Federal Military Government of N
igeria at this unsavoury
and unprovoked recurring incursions of which the Federal Military Govern
ment takes serious view.
The Ministry further demands explanation for this unfriendly act, and as
surance that there will not
be a recurrence of such incidents in the future." (Annex NC-M 382).
5.131 In the event both the Nigerian village heads and the security forc
es resisted Cameroonian encroachments. In
November and December 1987, a further attempt at Cameroonian encroachmen
t occurred and this was again met
with a pre-existing Nigerian administrative presence.
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(xii) Conclusion: the Acquiescence of Cameroon
5.132 The legal position of Nigeria can be summarised as follows:
(1) For varying periods between 20 and 40 years in duration, Nigeria h
as had peaceful possession of the Lake
Chad villages, which were at all times administered as part of the Borno
State of Nigeria.
(2) At no stage prior to the Note dated 11 April 1994 did Cameroon mak
e any protest or claim relating to the Lake
Chad villages presently in issue.
(3) At no stage has Cameroon had a system of administration in place i
n the region.
(4) The episode of Cameroonian interference in 1987 was short-lived an
d did not lead to any claim to the region
on the part of Cameroon. At no stage has Cameroon exercised peaceful pos
session.
5.133 The evidence of Nigerian peaceful possession has been reviewed ext
ensively in the present Chapter. The
Cameroonian incursion of 1987 was not only late in the day but does not
appear to have been à titre de souverain.
In any event it was resisted and the Cameroon authorities did not persis
t.
5.134 The interviews with local chiefs show a general absence of Cameroo
nian activity. On only two occasions
did a village headman make any reference to interference by gendarmes fr
om Cameroon; in Mukdala and
Kafuram. In these two interviews the headmen said that the gendarmes wer
e informed that the village was
Nigerian, after which the Cameroonians left. In all the other interviews
no reference was made to Cameroonian
visits of any kind.
5.135 The key evidence of Cameroonian acquiescence lies in the silence o
f Cameroon prior to the Cameroonian
Note to Nigeria dated 11 April 1994 (see above, paragraph 5.122). Subs
equently the issue was taken up in the
Additional Application introduced by the Government of Cameroon. This refers (in paragraph 11
) to the "new
dispute". This "new dispute" was not referred to in the original Application filed on 29 March 1994.
__________
1 I.C.J. Reports, 1953, pp. 58-59.
2 ibid, p. 71
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hapter 6
PART III
THE LAND BOUNDARY
CHAPTER 6
THE DEVELOPMENT OF THE PLEADINGS
A. Background
(i) Cameroon's Additional Application of 6 June 1994
6.1 Cameroon's initial Application of 29 March 1994 to the Court concerned only certain questions in
respect of the Bakassi Peninsula and the maritime boundary between Niger
ia and Cameroon (a boundary
directly affected by the dispute over Bakassi). By an Additional Application filed with the Court on 6
June 1994 Cameroon extended the scope of the issues placed before the Co
urt, including therein inter
alia "the frontier between Cameroon and the Federal Republic of Nigeria from
Lake Chad to the sea",
which frontier the Court was requested "to specify definitively": Additional Application, paragraph 17
(f). By its Order of 16 June 1994 the Court agreed that the Additional Application could be treated as an
amendment to the initial Application, so that the Court could deal with both as a single case.
6.2 Although Cameroon thus put in issue the whole of the boundary betwee
n the Parties from Lake Chad
to the sea, Nigeria has found it convenient for this aspect of the case
to be dealt with primarily as
concerning the land boundary between Lake Chad and the Bakassi peninsula (i.e. south of Lake Chad
and north of Bakassi). The boundary within Lake Chad falls naturally to
be dealt with separately as part
of the more general problems to which the situation in respect of Lake C
had gives rise, while the land
boundary in the southernmost areas is consequential upon the resolution
of the substantive dispute over
title to the Bakassi Peninsula. Accordingly the present Chapter of Niger
ia's Rejoinder will be concerned
only with the land boundary between Lake Chad and Bakassi: questions con
cerning the boundary within
Lake Chad are dealt with in Chapters 4-5, and the question of title affe
cting the boundary in the Bakassi
area is dealt with in Chapters 1-3.
(ii) Cameroon's Memorial
6.3 So far as concerns the land boundary between Lake Chad and Bakassi,
Cameroon in its Memorial
asked no more of the Court than that it should declare the course of the
boundary in terms of its course
as fixed by certain instruments. Starting at a point which Cameroon rega
rds as the mouth of the River
Ebeji (which Cameroon put at longitude 14_ 12' 11.7" E and latitude 12_
32' 17.4" N) Cameroon's
submission (in translation - MC, paragraph 9.1) was that the Court sho
uld adjudge and declare that the
course of the land boundary was as follows:
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"- thence it follows the course fixed by the Franco-British declaration
of 10 July 1919, as
specified in paragraphs 3 to 60 of the Thomson/Marchand Declaration, con
firmed by the
Exchange of Letters of 9 January 1931, as far as the "very prominent pea
k" described in
the latter provision and called by the usual name of "Mount Kombon";
- from Mount Kombon the boundary then runs to "Pillar 64" mentioned in p
aragraph 12 of
the Anglo-German Agreement of Obokum of 12 April 1913 and follows, in th
at sector,
the course described in Section 6(1) of the British Nigeria (Protectorate and Cameroons)
Order in Council of 2 August 1946;
- from Pillar 64 it follows the course described in paragraphs 13 to 21
of the Obokum
Agreement of 12 April 1913 as far as Pillar 114 on the Cross River;
- thence, as far as the intersection of the straight line joining Bakass
i Point to King Point
and the centre of the navigable channel of the Akwayafe, the boundary is
determined by
paragraphs 16 to 21 of the Anglo-German Agreement of 11 March 1913."
(iii) Nigeria's Fifth Preliminary Objection
6.4 In the light of Cameroon's Memorial, Nigeria raised a number of Preliminary Objections. So far as
concerned the course of the boundary, Nigeria's Fifth Preliminary Objection was that there was no
dispute concerning boundary delimitation as such throughout the whole le
ngth of the boundary from the
tripoint in Lake Chad to the sea. In particular (and so far as concerns
the part of the land boundary to be
dealt with in this Chapter) Nigeria submitted that there was no dispute
relating to boundary delimitation
1
as such from the shores of Lake Chad to the hill which Cameroon referred
to as "Mount Kombon", nor
between "Mount Kombon" and boundary pillar 64 on the Gamana River, nor b
etween that pillar 64 and
Bakassi. 2
6.5 The Court in its Judgment of 11 June 1998 (I.C.J. Reports 1998, p.2
75, at pp.313-317) rejected
Nigeria's Fifth Preliminary Objection by thirteen votes to four. Again, so far as concerns the land
boundary between Lake Chad and Bakassi the Court made a number of observations which are
relevant
to the subsequent argument on the merits of Cameroon's submissions.
(1) "In the course of the oral proceedings, it became clear that ... t
here are competing claims of Nigeria
and Cameroon in respect of the village of Tipsan, which each Party claim
s to be on its side of the
boundary" (Judgment, paragraph 85). The Court concluded that "there ca
n be no doubt about the
existence of disputes with respect to ... Tipsan..." (Judgment, paragra
ph 87), and that "clearly [Nigeria]
does differ with Cameroon about ... Tipsan ..." (Judgment, paragraph 92
). It is noteworthy that this is the
only location along the entire 1,800 km land boundary at which the Court
found (on the basis of the
limited evidence and argument before the Court at that preliminary stage
) that there was a dispute as to
the course of the boundary. For a fuller explanation of the situation at
Tipsan, see below, paragraph
7.169 et seq.
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(2) Having found that there existed disputes with regard to certain is
lands in Lake Chad and the Bakassi
Peninsula, as well as with regard to Tipsan, the Court noted that "All o
f these disputes concern the
boundary between Cameroon and Nigeria". But the Court added that "given
the great length of that
boundary, which runs over more than 1,600 km from Lake Chad to the sea, 3it cannot be said that these
disputes in themselves concern so large a portion of the boundary that t
hey would necessarily constitute
a dispute concerning the whole of the boundary" (Judgment, paragraph 88
).
(3) The Court noted "that, with regard to the whole of the boundary, t
here is no explicit challenge from
Nigeria" (Judgment, paragraph 89).
(4) While the Court held that the existence of a dispute might be esta
blished by inference, the Court
rejected Cameroon's argument "that the challenge by Nigeria to the valid
ity of the existing titles to
Bakassi, Darak and Tipsan, necessarily calls into question the validity
as such of the instruments on
which the course of the entire boundary from the tripoint in Lake Chad t
o the sea is based, and therefore
proves the existence of a dispute concerning the whole of the boundary"
(Judgment, paragraph 89).
(5) As regards the various boundary incidents complained of by Cameroo
n, the Court concluded that
"not every boundary incident implies a challenge to the boundary" and th
at "Even taken together with
the existing boundary disputes [scil. regarding Darak, Bakassi and Tipsan], the incidents and incursions
reported by Cameroon do not establish by themselves the existence of a d
ispute concerning all of the
boundary between Cameroon and Nigeria" (Judgment, paragraph 90). Niger
ia draws attention to
Cameroon's grossly misleading presentation of this part of the Court's J
udgment, in its Reply (RC 11.17).
Cameroon there refers to the incidents alleged to have occurred between
Lake Chad and Bakassi which
(so Cameroon asserts) "établissent que la frontière entre les de
ux Etats est contestée sur toute sa
longueur, comme la Cour l'a reconnu en rejetant la cinquième exception préli
minaire du Nigéria." 4
(emphasis added). The truth is that the Court said exactly the contrar
y: not only did the Court reject
Cameroon's argument that "the challenge by Nigeria to existing titles to
... Tipsan necessarily ... proves
the existence of a dispute concerning the whole of the boundary" (Judgm
ent, paragraph 89) but the
Court added specifically that "the incidents and incursions reported by
Cameroon do not establish by
themselves the existence of a dispute concerning all of the boundary bet
ween Cameroon and
Nigeria" (paragraph 90, emphasis added). Thus Cameroon's invocation of
the Court's judgment in
support of Cameroon's version of events was not merely misleading, but w
as a grossly inaccurate
representation of what the Court actually said.
(6) The Court considered Cameroon's request to be for the Court to spe
cify definitively the frontier
between Cameroon and Nigeria "along a line the co-ordinates of which are
given in Cameroon's
Memorial" (Judgment, paragraph 86). Nigeria feels constrained to obser
ve that, as a matter of fact,
Cameroon's Memorial nowhere puts forward as the land boundary a line of which it gives the
co-
ordinates. Instead, Cameroon's proposed boundary as set out in its Memorial is the line as delimited in
the various instruments referred to, all of which describe the boundary
by reference to geographical
features and none of which prescribes a line fixed by reference to a con
secutive series of geographical
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co-ordinates. 5
(7) The Court attached weight - negative weight so far as Nigeria was
concerned - to Nigeria's response
to the related question posed by a member of the Court. This asked wheth
er, leaving aside the Darak
region and Bakassi, "there is agreement between Nigeria and Cameroon on
the geographical co-
ordinates of this boundary as they result from the texts relied on by Ca
meroon in its Application and its
Memorial" (Judgment, paragraph 85). As Nigeria correctly pointed out (
and as just repeated), the
boundary is not described by reference to geographical co-ordinates but
by reference to physical
features, and since Independence there had been no bilateral agreement p
roviding geographical co-
ordinates for the pre-Independence boundary (Judgment, paragraph 91).
(8) Nigeria's alleged reticence concerning the course of the land boun
dary and its legal basis or bases led
the Court to conclude that "the exact scope of this dispute cannot be de
termined at present; a dispute
nevertheless exists between the two Parties, at least as regards the leg
al bases of the
boundary" (Judgment, paragraph 93).
(iv) Nigeria's Counter-Memorial
6.6 In its Counter-Memorial Nigeria principally -
(1) noted that Cameroon had manifestly refrained from putting forward
in its Applications or Memorial
its own 'definitive specification' of the land boundary (NC-M, paragrap
h 18.3), and that the land
boundary which Cameroon had requested the Court to 'specify definitively
' was not (except for only two
6
isolated points) a boundary which Cameroon itself had specified by reference to geograph
ical co-
ordinates (NC-M, paragraph 18.5);
(2) noted that Cameroon had requested that the Court should confirm th
at the land boundary between
Lake Chad and Bakassi followed the lines of delimitation laid down in th
e several instruments cited by
Cameroon, and that those delimitation lines were inadequate as a contemp
orary 'definitive specification'
of the land boundary (NC-M, paragraph 18.6);
(3) identified (NC-M, paragraph 19.2) three principal reasons for th
e inadequacy of those delimitation
lines, namely that
(a) Cameroon's own official maps show a boundary which is in places de
monstrably inconsistent with
the boundary as delimited in the instruments which are principally relev
ant to the delimitation of the
present land boundary (NC-M, paragraphs 19.5-19.22);
(b) the terms of those instruments do not reflect long-established pra
ctices and local agreements which
have varied the land boundary as delimited in those agreements (NC-M, p
aragraphs 19.23-19-38); and
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(c) in many places those instruments describe the land boundary in ter
ms which give rise to difficulty
when the attempt is made to apply them on the ground (NC-M, paragraphs
19.39-19.55);
(4) stated that it was principally for those reasons that Nigeria qual
ified its acceptance of the delimitation
of the boundary by the relevant instruments as an acceptance "in princip
le" (NC-M, paragraph 19.3);
(5) stated that because of the inadequacies to which Nigeria had drawn
attention, the various instruments
cited by Cameroon in its final submissions were unacceptable to Nigeria
as a 'definitive specification' of
the land boundary, although they were an acceptable starting point for s
uch a specification of the
boundary and were in principle accepted by Nigeria on that basis (NC-M,
paragraphs 18.8, 19.109);
(6) outlined the historical evolution of the land boundary (NC-M, par
agraphs 18.12-18.53);
(7) accepted in principle the course of the boundary as described by t
he instruments which are
principally relevant to the delimitation of the land boundary and relied
on by Cameroon (NC-M,
paragraph 18.54), namely -
(a) the Thomson-Marchand Declaration 1929-1931, particularising the ea
rlier Milner-Simon Declaration
1919;
(b) the Nigeria (Protectorate and Cameroons) Order in Council 1946;
(c) the Anglo-German Demarcation Agreement of 12 April 1913; and
(d) the Anglo-German Agreement of 11 March 1913;
(8) stated that Nigeria did not call into question the validity as suc
h of the instruments on which the land
boundary between Lake Chad and Bakassi was based, and in principle accep
ted the course of the
boundary as delimited in the instruments primarily concerned, and in pri
nciple accepted the validity of
all of them as the basis for the land boundary between Lake Chad and Bak
assi (NC-M, paragraphs
18.55, 18.57);
(9) commented in some detail upon each of the four Sectors of the land
boundary which Nigeria had for
convenience identified (NC-M, paragraphs 19.56-19.108); and
(10) reserved to itself the right to insist on a definitive specificat
ion of the land boundary, to the extent
necessary to reflect the present legal situation of the boundary (NC-M,
paragraphs 26.4-26.5).
B. Cameroon's Reply
6.7 In its Reply Cameroon advances a number of general arguments and makes a number of g
eneral
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assertions which require correction or comment.
(i) Boundary Treaties
6.8 Cameroon contends that "Le droit international attribue un statut pa
rticulier aux traités établissant
des frontières"7 (RC, paragraph 2.02). From this Cameroon apparently seeks to argue th
at the various
instruments delimiting the boundary between Nigeria and Cameroon are bin
ding and immutable. By
invoking Nigeria's acceptance in principle of the legal validity of the
relevant instruments Cameroon
seeks to suggest that Nigeria is committed to the terms of those instrum
ents and cannot now argue that
they may be departed from in any way.
6.9 Nigeria would first draw attention to the fact that one of the relev
ant instruments is not a treaty but
an Order in Council. The line it prescribed never became an internationa
l boundary by virtue of a treaty
between Nigeria and Cameroon or their predecessors in title. Nevertheles
s, Nigeria does not on that
account seek to deny the continuing validity of the boundary - now an in
ternational boundary -
originally prescribed as an internal boundary between the northern and southern parts of the British
mandated area of Cameroons, although the original internal purpose serve
d by that boundary is a factor
to be borne in mind in considering its subsequent international role.
6.10 Although Nigeria accepts the relevant instruments "in principle", t
his does not imply, as alleged by
Cameroon, that Nigeria is precluded from now arguing that those instrume
nts can be departed from in
any way. Nigeria made it clear in its Counter-Memorial that its acceptance of the relevant instruments
"in principle" was precisely because the description of the boundary giv
en in those instruments was in
need of clarification, interpretation or variation if it was to be regar
ded as accurately delimiting the
present boundary between Nigeria and Cameroon.
6.11 The permanently binding character of boundary treaties - or at leas
t of the boundaries resulting
from such treaties - is not an absolute rule of international law. Certa
in qualifications to the general rule
must be admitted, in particular those set out below.
(1) A boundary cannot be regarded as immutably established by a treaty
if the treaty is in terms which
do not with sufficient clarity indicate where the boundary runs. An ambi
guously or inadequately
described boundary is not rendered clear or adequate simply by being inc
orporated in a treaty.
(2) Cameroon acknowledges that a boundary treaty may be changed by the
mutual consent of the parties.
Cameroon fails to note, however, that that mutual consent may be either
express or implied. What
matters is the existence of consent to a variation in the boundary previ
ously agreed by treaty. How that
consent is established is a matter of evidence. If it is express consent
, for example by a subsequent
treaty, then the matter is clear. But there is no rule of international
law that a treaty can be amended only
by a further treaty, and even in the absence of express consent in that
form other ways of establishing the
necessary consent will be sufficient to show that the previous treaty-ba
sed boundary has been varied.
Such implied consent may be found, for example, in the long-standing acq
uiescence of State authorities
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in a state of affairs which is different from that prescribed in the ori
ginal treaty and of which they are
aware. Moreover, a treaty-based boundary may be changed by a process of
historical consolidation (as to
which see above, paragraph 3.42 et seq.).
(3) A treaty which is subject to some substantive defect affecting its
validity is not cured of that defect
simply because it purports to establish a boundary. The defect in the tr
eaty taints the boundary which the
treaty purports to establish.
(4) As the International Law Commission has recognised, although a suc
cession of States does not in
itself affect the boundary established by a pre-succession treaty, the s
uccession leaves untouched any
other ground for claiming the revision or setting aside of the boundary
settlement: the mere occurrence
8
of the succession does not consecrate the existing boundary if it was op
en to challenge.
(5) A boundary treaty, like any other treaty, is to be interpreted in
the light of the parties' subsequent
practice in the application of the treaty establishing their agreement r
egarding its interpretation.
6.12 Much the same points are to be made with respect to Cameroon's asse
rtion that "Le droit
international présume que les traités délimitant une frontiè
re posent une frontière permanente, définie et
complète en l'absence de preuves manifestes du contraire" 9(RC, paragraph 2.22). As Nigeria has shown
elsewhere (above, paragraph 1.63), this sweeping statement is without
foundation in international law,
and no such presumption as is alleged by Cameroon exists.
6.13 In so far as Cameroon might wish to apply its alleged presumption t
o the treaties establishing the
land boundary, Nigeria repeats (see above, paragraph 1.63) that bounda
ry treaties are only as permanent,
defined and complete as their terms provide. It is the actual terms of t
he treaties (or other equivalent
instruments) which are paramount, not some alleged presumption.
(1) A boundary treaty is not permanent (or more strictly, does not es
tablish a boundary which is
permanent) if the parties have subsequently consented, expressly or by
implication, to variations in the
boundary;
(2) nor is a boundary complete if the treaties prescribing the boundar
y fail, either by their terms or by
virtue of some legal defect, to deal with the boundary in its entirety,
and any such lacuna is not filled by
some such presumption of completeness as that postulated by Cameroon;
(3) nor is a boundary any better defined than the terms of the treaty
provide, and if those terms do not
define the boundary adequately, then the boundary is in fact and in law
ill-defined and is not by virtue of
some alleged presumption rendered well-defined; in this respect the Awar
d of the Arbitration Tribunal
10
(Lord McNair, President) in the Argentine-Chile Frontier Case states the position correctly, in
observing (in a passage which Cameroon failed to quote in full: above,
paragraph 1.78) that
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"Since the 1902 Award was a valid Award, it must be assumed to have sett
led the entire
boundary between Argentina and Chile in the area covered by it ... except to the extent to
which it is impossible to apply the Award on the ground" (emphasis added)
6.14 A further general point raised by Cameroon on applicable principles
of treaty law is the assertion
that title based on treaty is predominant in international law (RC, par
agraph 2.47 et seq.). But this bald
statement needs qualification:
(1) a treaty-based title has no particular cachet: a title based on a
treaty is, like any other treaty-based
right or obligation, subject to the treaty in question being modified as
a consequence of express or
implied consent of the parties (including their subsequent practice);
(2) a treaty-based title may also be modified as a consequence of hist
orical consolidation of title;
(3) in any event, the treaty must indeed establish a lawful title; and
(4) the treaty must be clear as to the territorial limits of the title
which it establishes.
(ii) Nigeria's acceptance of the relevant instruments
6.15 Cameroon notes (at RC, paragraph 2.13) that Nigeria's acceptance
of the various legal instruments
which determine the boundary is qualified by terms like "in principle" a
nd "as such". Cameroon suggests
that these qualifications constitute reservations to Nigeria's apparent
acceptance of the instruments,
which weakens Nigeria's engagement to them.
6.16 Nigeria has drawn attention in its Counter-Memorial to the existence of certain problems with some
of the relevant instruments (problems which will be explained further i
n this Rejoinder), as regards their
accuracy, clarity, validity or effectiveness. In the light of those prob
lems of which it was aware it would
have been improper for Nigeria to have said, without qualification, that
it accepted the instruments in
question. To have accepted a boundary delimitation known or sincerely be
lieved to be invalid,
inaccurate, unclear or ineffective would have misled the Court, and woul
d not have contributed to
securing a clear settlement of the boundary between Nigeria and Cameroon
. While Cameroon is
apparently content to invite the Court to confirm defective boundary del
imitations, Nigeria is not. In
short Nigeria's acceptance of the boundary delimitation set out in the r
elevant instruments covers by far
the greater part of the land boundary between Lake Chad and Bakassi: it
is only in a relatively small
number of locations (exemplified in Nigeria's Counter-Memorial, and fully examined in this Rejoinder),
affecting a relatively small part - only some 210 kms - of that land bou
ndary, where Nigeria believes that
the existing instruments are defective and need clarification or interpr
etation before it would be
appropriate for the Court to confirm the boundary as delimited by the in
struments which both parties
agree are relevant.
(iii) Definitive specification of the boundary
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6.17 In its Reply Cameroon has changed its position regarding the detail in which the bou
ndary should
be specified. In its Additional Application Cameroon requested the Court to "specify definitively" (in
11
French, "préciser définitivement" ) the land boundary between Cameroon and Nigeria. This indicated
that Cameroon wanted from the Court a detailed specification of the boun
dary. But Cameroon then in its
Memorial put before the Court only the terms of the relevant instruments, withou
t any further detailed
specification of the boundary, and provided no evidence, by way of maps
or otherwise, as to precisely
where Cameroon considered the boundary to run. In these circumstances it
was incumbent upon Nigeria
to draw to the attention of the Court both (a) the inadequacies of the
relevant instruments as a 'definitive
specification' of the boundary and (b) the numerous locations where th
e best maps available to show
Cameroon's belief as to the course of the boundary demonstrated that Cam
eroon itself did not comply
with the terms of the instruments on which it was relying.
6.18 As will be noted below (paragraph 6.39 et seq.), Cameroon has now apparently dropped its request
that the Court should "specify definitively" the land boundary between L
ake Chad and Bakassi.
Cameroon now presents the Court with only a simple request that the Cour
t should confirm the
boundary as delimited in the relevant instruments.
6.19 Before passing on to the implications of Cameroon's change of posit
ion, Nigeria wishes to draw
attention to Cameroon's misrepresentation of Nigeria's attitude to the r
equest that the boundary should be
'specified definitively'. Thus in the Reply (paragraph 2.36) Cameroon states that
"Une "definitive specification" ne saurait être érigée en un no
uveau concept, regroupant
délimitation et démarcation, qui aurait pour conséquence de pla
cer les problèmes de
démarcation au même niveau que les problèmes de délimitation
.... Il ne s'agit en aucun cas
d'un terme de l'art, mais d'une expression utilisée par le Nigéria
pour générer la
12
confusion."
Again, at paragraph 2.116 of the Reply, Cameroon alleges that Nigeria creates confusion between the
process of delimitation and that of demarcation and
"utilise la notion de "definitive specification" qu'il considère comm
e un équivalent de la
13
délimitation".
6.20 But Cameroon nowhere acknowledges that the concept of 'definitive s
pecification' of the boundary
was introduced into these proceedings by Cameroon itself, not by Nigeria
. Cameroon's original request
to the Court, in paragraph 17(f) of its Additional Application, was that the Court should "specify
definitively the frontier between Cameroon and the Federal Republic of N
igeria from Lake Chad to the
sea" ("préciser définitivement la frontière entre elle et la R
épublique Fédérale du Nigéria du Lac Tchad à
la mer"). Cameroon having raised the prospect of a definitive specification of the
land boundary then
failed completely to say what it meant by that term. Since Cameroon had
introduced the notion of
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'definitive specification' of the boundary without any explanation of wh
at it meant, Nigeria had to set out
what it understood by that Cameroonian term and to add that it would wel
come such a definitive
specification of the boundary (NC-M, paragraph 18.2), while noting tha
t what Cameroon was actually
asking from the Court was inadequate to meet the request which Cameroon
itself had originally made
(NC-M, paragraphs 18.3-18.10). Far from Nigeria being responsible for
introducing a confusing concept
into the argument over the land boundary, any confusion was entirely due
to Cameroon's introduction of
that concept in its own formal request to the Court but without any indi
cation of what it meant by it.
6.21 It was for these reasons that Nigeria felt it necessary to state (
as noted by Cameroon, RC paragraph
2.35) that it "does not agree that the terms of those instruments [invo
ked by Cameroon] are sufficient in
themselves to constitute the 'definitive specification' of the land boun
dary for which Cameroon has
asked" (NC-M, paragraph 18.59, p. 503). The insufficiency to which Nig
eria referred (and explained in
detail elsewhere in its Counter-Memorial) was expressly related to the needs of the 'definitive
specification' which Cameroon had said that it was seeking from the Cour
t.
6.22 Cameroon's wilful misunderstanding of what Nigeria said in its Counter-Memorial is similarly
apparent from its immediately following quotation of a passage from Nige
ria's Counter-Memorial (RC
paragraph 2.37, citing NC-M, paragraphs 19.1-19.3). Cameroon quoted Nig
eria's acceptance in principle
of the delimitation of the land boundary as set out in the relevant inst
ruments while noting that,
principally for three stated reasons, those instruments did not constitu
te an adequate 'definitive
specification' of the land boundary as sought by Cameroon and that it wa
s for those reasons that Nigeria
qualified its acceptance of the delimitation of the boundary by the rele
vant instruments as an acceptance
in principle. Cameroon then (RC, paragraphs 2.38-2.39) makes a wholly
unjustified leap to the
suggestion that in some way this statement by Nigeria seeks to impugn th
e validity of the instruments.
Nigeria was not in any way impugning the validity of the instruments dea
ling with the land boundary
between Lake Chad and Bakassi; indeed, Nigeria expressly and repeatedly
stated that it accepted their
validity (NC-M paragraphs 18.55 14, 18.57 , 19.67 , 19.81 , 19.91 , 19.107 19and 19.109 ). It is
clear from the language used by Nigeria that it was solely the delimitation which in some respects
Nigeria was impugning as an adequate manifestation of the 'definitive specification' which Cam
eroon
was then seeking. Such a jump from Nigeria's actual concerns with the adequacy of the de
limitation
contained in an instrument, to the unjustified allegation that Nigeria q
uestioned the validity of the
instrument itself is evident elsewhere in Cameroon's Reply (e.g. paragraphs 2.43, 4.139). Cameroon has
wilfully misrepresented and distorted Nigeria's position.
(iv) Delimitation and Demarcation
6.23 An associated aspect of this part of the argument in Cameroon's Reply is that Nigeria consistently
confuses delimitation with demarcation, and both with 'definitive specif
ication' (e.g. RC, paragraphs
2.36-2.37, 2.45, 2.116-2.132, 4.7, 4.138-4.139). This is untrue.
6.24 Previous paragraphs have explained that Nigeria's concern with the
need for 'definitive
specification' was entirely in response to Cameroon's introduction of th
e concept, without further
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definition, into its formulation of its request to the Court in its Additional Application. As regards
Nigeria's alleged confusion of the separate processes of delimitation an
d demarcation, Nigeria has
throughout its Counter-Memorial sought to use these terms carefully. In short, it has used 'delimitatio
n'
to refer to the process whereby the course of a boundary is described in
words or maps in a legal
instrument, and has used 'demarcation' to refer to the process whereby t
he course of the boundary so
described is marked out on the ground. Although there may sometimes be n
o hard and fast line to be
drawn between the two processes, and although terminology used by tribun
als and writers (especially in
older times) is not always consistent in the sense just described, the
distinction adopted by Nigeria
conforms to what Nigeria believes to be the general practice (see also
above, paragraphs 4.30-4.32).
6.25 The point of crucial practical importance, however, is that those c
harged with the responsibility of
demarcating a boundary must be given a sufficiently clear delimitation of the boundary as the basis for
their work. Delimitation is usually (and was in the present case) a po
litical matter for agreement between
Governments; demarcation is essentially a technical matter for officials
, carrying out the political
decision arrived at by their Governments. The essentially technical proc
ess of demarcation necessarily
involves a limited degree of flexibility in order to apply on the ground
(and thus at a scale of 1:1) a
delimitation expressed in words and perhaps delineated on a map (at a s
cale of, say, 1:50,000, and often
more), and possibly also in order to take account of social realities o
n the ground: but the technical
process of demarcation must not be allowed to usurp the functions which
properly form part of the
political process of delimitation. In short, unless those carrying out t
he demarcation of a boundary are
given sufficiently clear guidance as to the course of the boundary which
they are supposed to be
demarcating, they will find themselves having to make essentially politi
cal and legal decisions as to the
course which they suppose the boundary should follow.
6.26 A simple example will be sufficient to illustrate the position. A t
reaty may provide that between
points A and B the boundary will follow a particular river. If the river
does in fact flow between those
two points, the precise line to be followed by the boundary can readily
be identified and if necessary
demarcated (e.g. by suitably inscribed pillars on the bank). But if on
examination of the ground it
appears that the river at point A is not the same river as that at point
B, and if in fact there is no single
river running between those two points, a demarcation team has no agreed
basis on which it can fulfil its
task. If it invents its own line as it thinks best, it would not be carr
ying out a delimitation of the agreed
line but replacing the parties' defective agreement with its own politic
al and legal judgment as to what
they would have had in mind had they realised the true geographical situ
ation. Just such a situation arose
in respect of a stretch of the boundary between Argentina and Chile: it
led to resolution not by a
demarcation team but by a reference to an arbitral tribunal which decide
d upon the line to be followed
(see below, paragraph 7.6, as to the Argentine-Chile Frontier Case). That Tribunal was engaged in
delimitation, not demarcation. The boundary was defectively delimited: t
he result of the Tribunal's
decision was a definitive specification of the boundary. That is precise
ly what Nigeria seeks as to the
land boundary, irrespective of the most recent change in Cameroon's posi
tion.
6.27 In the present case, Nigeria not only believes that, as it explaine
d in its Counter-Memorial, the
delimitation provided in the legal instruments relevant to the land boun
dary between Lake Chad and
Bakassi is in places inadequate as a definitive specification as originally requested by Cameroon, but
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also believes that, as will be explained in later parts of this Rejoinder, that delimitation fails in places to
give adequate guidance as to the course of the boundary so as to enable
a true demarcation of the
boundary to take place. While the problems which ensue may be problems o
f demarcation in the sense
of arising in the context of seeking to apply the agreed delimitation on
the ground, they are nevertheless
also, and primarily, problems of delimitation in that the demarcation te
am must be given proper
instructions as to the line which is to be demarcated. Some less substan
tial deficiencies can, of course,
properly be left for resolution during such agreed demarcation as might
eventually take place. But in
respect of those places where the delimitation gives inadequate guidance
to a demarcation team, Nigeria
will invite the Court to acknowledge that the boundary as delimited in t
he relevant instruments is
defective as it stands and is in need of clarification, interpretation o
r variation in order to represent its
true course, and will further invite the Court to provide the correct te
rms for the delimitation of the
boundary on the basis of which a true demarcation can take place.
6.28 The Court's competence to do this is inherent in its competence to
rule upon the case brought before
it by the Parties. Where a dispute has been brought before the Court, it
is competent to decide all matters
which are necessary in order to resolve that dispute, even if some speci
fic matter has not been put to it
21
by the Applicant for decision. Thus in the Nuclear Tests cases the Court
"emphasized that the Court possesses an inherent jurisdiction enabling i
t to take such
action as may be required ... to provide for the orderly settlement of a
ll matters in
dispute... Such inherent jurisdiction, on the basis of which the Court i
s fully empowered to
make whatever findings may be necessary for the purposes just indicated,
derives from the
mere existence of the Court as a judicial organ established by the conse
nt of States, and is
conferred upon it in order that its basic judicial functions may be safe
guarded."
6.29 Nigeria draws attention in this Rejoinder to certain specific deficiencies in the various relevant
instruments. These deficiencies are manifest. Given their existence, the
Court, which is asked to confirm
that the boundary is properly delimited by those instruments, is faced w
ith a theoretical choice between
(a) confirming the instruments while disregarding the manifest deficie
ncies to which attention has been
drawn; (b) deciding that all the deficiencies raise matters which can
be resolved in some possible,
eventual demarcation procedure; and (c) confirming the instruments sub
ject to correction of those
deficiencies. Nigeria submits that only the third of those courses would
represent a proper judicial
determination of the issues raised by the present proceedings regarding
the land boundary. The judicial
resolution of the dispute which the Court has found to exist along the l
and boundary requires a
determination by the Court of the correct delimitation of the boundary.
To the extent that that
delimitation is still represented by the terms of the relevant instrumen
ts it is proper for that delimitation
to be confirmed; but where that delimitation is defective, there is no p
roper alternative to the Court
providing the necessary clarification or interpretation to correct the d
eficiency. Only in that way can the
Parties have, as a result of the Court's Judgment, a clear, complete and
contemporary delimitation of
their common land boundary.
(v) Maps
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6.30 In paragraphs 2.68-2.76 of its Reply Cameroon makes certain general observations regarding the
weight to be given to maps in international litigation. Most, if not all
, of the quotations relied on by
Cameroon concern the use of maps in relation to claims of title to terri
tory.
6.31 In the present proceedings, however, and in relation to the land bo
undary between Lake Chad and
Bakassi (which is all that this and the next two Chapters are concerned
with), maps are invoked by
Nigeria for a different purpose. Nigeria accepts (subject to the defici
encies to which it has drawn
attention) that, to the extent that the land boundary is capable of app
lication on the ground, it is
delimited by the four instruments relied on by both parties: that delimi
tation accordingly disposes of
questions of territorial title on either side of the boundary line so de
limited. Maps are thus not so much
relevant to the question of title but to two other matters:
(1) first, they are relevant to the topographical accuracy of the deli
mitation in the respective instruments;
and
(2) second, certain maps of official Cameroonian provenance are eviden
ce of Cameroon's assertion of a
boundary which is not in conformity with the boundary as delimited in th
e instruments on which
Cameroon relies.
6.32 As regards the use of maps to assess the topographical accuracy of
the earlier delimitations, it is
clear that modern mapping, based on aerial photography, satellite imager
y and GPS technology, is vastly
more accurate than the older maps relied on in preparing the earlier del
imitation texts. It is in part
because of the high degree of accuracy now achieved with modern maps tha
t the delimitation in those
earlier texts can, in some places, be seen to be defective.
6.33 As regards Cameroon's official maps, Nigeria draws attention to the
m because they demonstrate
that Cameroon itself is either clearly departing from the textual delimi
tation on which it relies, or is at
best adopting an interpretation of those texts which differs from that a
dopted by Nigeria, thus showing
that the text is in need of interpretation by the Court before it can be
observed on the ground by the
inhabitants of the areas in question and, eventually, applied by an agre
ed demarcation process.
6.34 As to that last matter, Nigeria notes that in paragraph 2.36 of its
Reply Cameroon states that
confirmation by the Court of the boundary as delimited in the relevant i
nstruments "sera certainement
suivie d'une démarcation soigneuse et précise par les Parties". 22 Nigeria agrees that a careful and precise
demarcation will be highly desirable. In many of the relevant agreements
delimiting the boundary the
parties envisaged that the boundary they had delimited would soon be dem
arcated, but nevertheless
either no further action was taken or any action taken was very limited.
Moreover, there has been no
formally agreed demarcation of any part of the land boundary since Niger
ia and Cameroon attained
Independence in 1960, apart from a local arrangement in 1965-66 affectin
g a 4 km stretch in the area
around Danare and Boudam. 23
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6.35 Although Cameroon asserts the imminence and inevitability of a boun
dary demarcation, and
although both parties have in their discussions acknowledged the need to
demarcate the land boundary,
no demarcation has in fact ever occurred. A firm proposal by Nigeria's P
resident Shagari for an
Arbitration Panel to "look into different positions concerning the bound
aries" met with no favourable
response from Cameroon (see below, the Appendix to Chapter 16, paragrap
h 38). Demarcation of the
land boundary between Lake Chad and Bakassi will be a very expensive pro
cess. Nigeria does not
believe that the prospect of an eventual demarcation diminishes in any w
ay the necessity for an
adequately clear, topographically accurate, and unambiguous delimitation
, on the basis of which the
Parties can act immediately following the Judgment to be handed down by
the Court.
6.36 It follows from what has been said that Cameroon's list, in the Reply (paragraph 2.74), of maps
which it considers "constituent une preuve significative parce qu'elles
figurent en annexe d'instruments
contraignants" 24 is not directly relevant to the matter presently in issue. Nigeria does
not suggest that
those maps are to be ignored, but instead considers them to be part of t
he problem rather than the answer
to it. So far as concerns the land boundary, they are all old maps; they
do not accurately represent the
topography of the area with which they deal. It is precisely because the
delimitation instruments are
based on those maps, and those maps are now evidently of inadequate accu
racy (as well as being on a
25
scale which makes them unsatisfactory for delimitation or demarcation pu
rposes ), that the accuracy
and clarity of the delimitation contained in those instruments has now t
o be questioned.
6.37 As to the four land boundary maps referred to by Cameroon in the Reply (paragraph 2.74), they
have obvious deficiencies, particularly as regards scale. Nevertheless,
they are clearly relevant to any
consideration of the land boundary in the areas to which they relate. It
is not, however, their relevance
which is in issue, but their topographical adequacy and accuracy: for de
limitation and even more so for
eventual demarcation purposes they are lacking in both respects. Nigeria
has the following more
particular comments on the maps referred to.
(1) The three maps accompanying the Anglo-German Agreement of 19 March
1906 are at a scale of
1:100,000, prepared by the Nigeria-Kamerun Boundary Commission in 1903-1
906 and signed by the
Commissioners on 19 March 1906. A red line shows the Anglo-German bounda
ry. Only Sheet 3 is
relevant and its depiction of river courses and hill features is limited
, but reflects the understanding of
the topography that existed at that time.
(2) The maps attached to the Anglo-German Agreement of 11 March 1913 c
onsist of two sets of maps
first used to illustrate the original unratified delimitation agreement
of 1909.6The original versions
were prepared in 1905-1909, one set at a scale of 1:125,000, the other a
t a scale of 1:100,000. Revised
versions of the 1:125,000 series were produced in 1912-1913 and given th
e series reference GSGS 2700.
These revised maps illustrated the demarcation recorded in the Anglo-Ger
man Agreement of April 1913
and were attached to that Agreement, but, again, the depiction of featur
es is limited.
(3) The map attached to the Milner-Simon Declaration of 1919 "to illus
trate the description of the above
frontier" was on a scale of 1:2,000,000 (see Article 3(2)): this is
manifestly inadequate for accurate
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delimitation or demarcation purposes. The Declaration also referred to n
umerous sheets of Moisel's map
(see Article 3(1)). This map series was first prepared in 1908, on t
he basis of observations made by
27
German travellers and if there were no travellers' reports for an area, Moisel was unable
to portray the
topography. Moreover, at a scale of 1:300,000 its ability to record rele
vant features accurately enough to
28
serve as a sufficiently detailed boundary map was limited.
(4) The map annexed to the published text of the Thomson-Marchand Decl
aration 1929-1931 was on a
scale of 1:1,000,000, which is little better than the Milner-Simon map.
Moreover, its origins are
somewhat obscure, but it is clear that it is not what it purports to be,
namely a map prepared and
published contemporaneously with the Declaration to which it relates. Th
e records available at the
Public Record Office, Kew, show that
(a) the map published with the printed version of the 1931 Exchange of
Notes was not the map annexed
by Thomson and Marchand to their Declaration;
(b) indeed, that map was not only not available at the time the Declar
ation was concluded, but it was not
even available at the time the Exchange of Notes was signed on 9 January
1931, only becoming
available some months later; and
(c) that map was a purely British creation, without, apparently, any F
rench contribution.
The so-called 'Thomson-Marchand map' must, accordingly, be treated with
very considerable caution as
a definitive illustration of the intended effect of the Thomson-Marchand
Declaration.
6.38 The history of the map's preparation appears to be as follows. The
original Thomson-Marchand
Declaration was sent to the Colonial Office by the Deputy Governor of Ni
geria with his Despatch of 24
29
March 1930. The enclosures to the Despatch consisted of an undated typed 'original'
of the Declaration
in English with original signatures by Thomson and Marchand, and an unda
ted typed lower (carbon)
copy in French, also with original signatures. No maps were enclosed wit
h the Despatch, even though
the Declaration referred to "the frontier ... as is traced on the map an
nexed to this declaration". The
English original (but not the French copy), however, contained in its
left-hand margin a number of typed
notations alongside particular paragraphs: these were sequentially as fo
llows - R.O. 1120, R.O. 1119,
Moisel's map, R.O. 1014, R.O. 1043, R.O. 1082, R.O. 1083, Moisel's map,
G.1. The covering Despatch
(paragraph 4) read: "The references marginally noted in the enclosures
to this despatch refer to the maps
relevant to the agreement". In May 1930 the Colonial Office, noting that
copies of the maps referred to
had not been received, requested the Governor of Nigeria to furnish a fe
w sets of the maps. 30 The files31
show that Thomson transmitted four sets of maps with his Despatch of 28
June 1930, but this Despatch
itself has been destroyed (i.e. was 'weeded' when the file was sent to
the archives). The Foreign Office
wanted maps for publication with the Exchange of Notes which it was anti
cipated would be concluded
in due course to confirm the Thomson-Marchand Declaration, but considere
d the set of maps available
from the Colonial Office to be too bulky for the purpose and in October
1930 asked the War Office to
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produce a more suitable composite map. 32The War Office did not complete the task until after the
33
Anglo-French Exchange of Notes had been concluded on 9 January 1931: the first proof was only sent
to the Foreign Office in May 1931, and the final copies only arrived at
the Foreign Office on 11 August
1931. The composite map duly appeared in the United Kingdom's Treaty Ser
ies, No. 34 (1931), "to
illustrate the Anglo-French Declaration defining the Cameroons Boundary"
: that map has the series
number GSGS 3914, confirming that it was constructed by Geographical Sec
tion, General Staff, i.e. by
Military Survey, London.
(vi) Confirmation of relevant instruments delimiting the boundary
6.39 It is now clear from Cameroon's Reply that Cameroon has dropped its former request that the Court
should 'specify definitively' the boundary from Lake Chad to the sea, in
cluding therefore the land
boundary between Lake Chad and Bakassi. Instead, Cameroon does not ask f
or any more detailed
specification than that given in the various relevant legal instruments.
Cameroon's Submissions at
paragraph 13.01 of the Reply, in relation to the land boundary between Lake Chad and Bakassi, may be
summarised as requesting the Court to adjudge and declare that the land
boundary follows a line which
(1) begins at a point the co-ordinates of which are given and then run
s to another point the co-ordinates
of which are given (and which is said by Cameroon to represent the loca
tion of the mouth of the Ebeji),
in accordance with the Franco-British declaration of 10 July 1919 and wi
th the Thomson-Marchand
Declaration of 29 December 1929 and 31 January 1930 confirmed by the Exc
hange of Letters of 9
January 1931;
(2) thence follows the course fixed by those instruments to the fairly
prominent, pointed peak referred to
by Cameroon as "Mount Kombon";
(3) thence heads towards Pillar 64, following the course described in
the Nigeria (Protectorate and
Cameroons) Order in Council 1946;
(4) thence follows the course described by relevant paragraphs in the
Obokum Agreement of 12 April
1913 as far as pillar 114 on the Cross River; and
(5) thence follows a course determined by specified paragraphs of the
Anglo-German Agreement of 11
March 1913.
6.40 Nigeria notes at the outset that Cameroon itself wants rather more
than just an affirmation of the
relevant instruments. For the beginning of the land boundary line Camero
on stipulates that the line
should run through a point whose co-ordinates are given, said to be the
mouth of the Ebeji. Despite the
impression which Cameroon seeks to give that this point is included in t
he instruments to which it refers,
the co-ordinates do not form part of the text of those instruments: as N
igeria has several times stated,4
the various instruments which delimit the land boundary do not do so by
reference to geographical co-
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ordinates identifying successive points along which the land boundary ru
ns. Nigeria will comment later
(paragraphs 7.10 et seq.) on the particular co-ordinates offered by Cameroon; for the present N
igeria
simply notes that Cameroon has shown that it too believes that the relev
ant instruments are in
themselves inadequately precise and therefore has to introduce further e
xtrinsic definition of relevant
points along the boundary line.
6.41 Notwithstanding that addition by Cameroon to the terms of the instr
uments on which it relies,
Cameroon is for the most part in effect merely asking the Court to affir
m the terms of those instruments.
Nigeria regrets that Cameroon is thus now backing away from a request th
at the Court should specify the
line of the land boundary with adequate precision to enable an effective
demarcation to take place. Such
a detailed specification of the land boundary is necessary if border pro
blems are to be avoided because,
as Nigeria has shown in its Counter-Memorial, the terms of the instruments on which Cameroon is now
content to rely are in places inadequate.
6.42 Nevertheless, Cameroon, as the Applicant, is content to seek from t
he Court merely an affirmation
of the land boundary in terms of existing instruments whose adequacy as
a boundary delimitation is in
places manifestly lacking. Nigeria has all along said that the land boun
dary as a whole between Lake
Chad and Bakassi is not in dispute (see NC-M, paragraphs 18.54 et seq.). Cameroon, having misled the
Court, by reference to a spurious issue about Tipsan (see below, paragr
aph 7.169 et seq.), into
concluding that the dispute is not limited to Lake Chad and Bakassi, now
seeks to resile from the
consequences of doing so. For the reasons given above and in further det
ail in Chapter 7, Nigeria does
not accept this attempt by Cameroon to withdraw issues from the Court. S
ubject to what is said in
paragraphs 6.44-6.48, Nigeria respectfully submits that the Court can be
gin its consideration of the land
boundary by affirming that the boundary is, in principle, delimited by t
he terms of the four legal
instruments identified above. But, it is further submitted, the Court sh
ould not stop there.
6.43 In this context Nigeria wishes to reaffirm what it said in paragrap
hs 26.4-26.5 of its Counter-
Memorial:
"26.4 Cameroon having defined the issue in terms of Article 17(f) of i
ts Application - and
the Court having held, by reference to an alleged dispute over Tipsan, t
hat the whole
boundary is in dispute - it is in Nigeria's view not open to Cameroon no
w to say that all it
asks the Court to do is to make a declaration in terms of particular ins
truments, without
reference to the actual boundary in situ. There is however a risk that Cameroon will resile
from the position taken in its Application, and the effect of the ne ultra petita rule might
then present a difficulty. Against that contingency, Nigeria accordingly
asks the Court
(pursuant to Article 80 of the Rules, if necessary) to specify definit
ively the course of the
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
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reserves the right to ask the Court, to the extent that further differen
ces of opinion arise
between the parties in the course of the pleadings, to resolve those dif
ferences by
interpreting and applying the relevant instruments, so as to allow the b
oundary to be
subsequently fixed in situ by ordinary process of demarcation."
6.44 As Nigeria has demonstrated (and will show further, below), the b
oundary delimited in the relevant
boundary instruments is in places seriously defective. A simple affirmat
ion of the relevant boundary
instruments requested by Cameroon will consequently not afford a workabl
e basis on which the Parties
could, after the Court has delivered Judgment, proceed to a demarcation
of the land boundary; nor will it
in the meantime provide a clear statement of the course of the boundary
for the guidance of those living
and working in the area and of local authorities. Moreover, such a simpl
e affirmation will do little to
avoid future border disputes. It is therefore essential that the Court s
hould in its Judgment remedy the
deficiencies of the relevant boundary instruments, and Nigeria's readine
ss to see those instruments
confirmed is subject to the detailed interpretations, clarifications and
variations which in Nigeria's
submission are called for and which Nigeria will set out in detail in Ch
apter 7 of its Rejoinder.
6.45 In its Counter-Memorial Nigeria gave examples of the various kinds of deficiencies which are
apparent in the instruments which delimit the boundary. These were, howe
ver, only examples, intended
to illustrate the basic proposition that Cameroon's request for a "defin
itive specification" of the boundary
could not be met by reference only to the terms of the relevant instrume
nts. In this Rejoinder, Nigeria
will both expand upon the examples which it gave previously and, for com
pleteness, will identify other
boundary areas where either the delimitation in the relevant boundary in
struments is defective or
Cameroon has asserted a boundary inconsistent with that delimitation.
6.46 The deficiencies in the relevant boundary instruments calling for i
nterpretation, clarification or
variation arise where
(1) the terms of the existing instruments are manifestly defective, si
nce there is no benefit to the parties
in the Court confirming as the delimitation of the boundary a delimitati
on which is defective; or
(2) the terms have been varied or clarified by subsequent practice and
agreement, since it would be
wrong for the parties and the Court to ignore developments on the ground
over the past three quarters of
a century.
6.47 In Section A of Chapter 7 of this Rejoinder Nigeria, in respect of each of these boundary areas, will
explain the inadequacy of the original instrument, will comment upon any
observations made by
Cameroon, and will offer an alternative form of words which properly des
cribes the boundary.
6.48 In addition, in Section B of Chapter 7 Nigeria will deal with certa
in boundary areas where the
original delimitation in the relevant instruments stands in no need of i
nterpretation or clarification but
where nevertheless Cameroon
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(1) has criticised Nigeria's position and has itself asserted a bounda
ry inconsistent with that original
delimitation, or
(2) has delineated the boundary on maps submitted by Cameroon with its
Memorial or Reply, or on other
official Cameroon maps, in a manner inconsistent with the original delim
itation.
6.49 In conclusion Nigeria will submit that the land boundary follows th
e line stipulated in the original
instruments delimiting the boundary, subject to the alternative forms of
words proposed in respect of
each boundary area needing clarification or interpretation; and in respe
ct of the other boundary areas
where Cameroon asserts a boundary inconsistent with the delimitation set
out in the relevant
instruments, Nigeria will request the Court to declare that the land bou
ndary correctly follows the course
described by Nigeria.
__________
1 This particularisation of Nigeria's objection related in terms to the
boundary "from the tri-point in Lake Chad to
Mount Kombon", but for the reason given in para. 6.2 the present Chapter
excludes the boundary within Lake
Chad.
2 This particularisation of Nigeria's objection related in terms to the
boundary between pillar 64 "and the sea",
but for the reasons given in para. 6.2 that part of the boundary which l
ies in the area of the Bakassi peninsula is
excluded from the present Chapter.
Although previous pleadings referred to the land boundary as being 1,600
kms long, a more recent and more
detailed calculation shows the length of the land boundary to be nearer
to 1,800 kms.
4 "establish that the boundary between the two States is contested along
its entire length, as the Court
acknowledged by rejecting the fifth Preliminary Objection made by Nigeri
a".
5 Nigeria noted in its Counter-Memorial (para. 9.41) that Cameroon gave co-ordinates for the starting point o
f
the boundary on the shores of Lake Chad (although those co-ordinates ar
e not included in the instruments on
which Cameroon relies), and that the approximate co-ordinates for a sin
gle point were given in one of the
instruments relied on by Cameroon.
6 See n.5 above.
7 "International law gives a special status to treaties establishing bou
ndaries".
8 See below, para. 15.47(i).
9 "International law presumes that the treaties delimiting a boundary es
tablish a permanent, defined and complete
boundary, in the absence of clear proof to the contrary".
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10 I.L.R., Vol. 38, at p. 81. See also below, para. 7.6.
11 Additional Application, para. 17(f).
12 "A "Definitive specification" should not be erected into a new concep
t, grouping delimitation and
demarcation, the consequence of which would be to place the problems of
demarcation at the same level as the
problems of delimitation .... It is not at all a question of a term of a
rt but of an expression used by Nigeria to
generate confusion".
13 "uses the notion of "definitive specification" which it considers equ
ivalent to delimitation".
14 "As regards the land boundary between Lake Chad and Bakassi, Nigeria
does not call into question the
validity as such of the instruments on which that land boundary is based
."
15 "Nigeria ... in principle accepts the validity of all of [the instrum
ents primarily concerned] as the basis for the
land boundary between Lake Chad and Bakassi."
16 "Nigeria does not challenge the legal validity of the Milner-Simon De
claration, its adoption by reference as
part of the Mandates for the British and French Cameroons, or the legal
validity of the Thomson-Marchand
Declaration as confirmed by the Exchange of Notes of 9 January 1931."
17 "... in relation to the Sector of the boundary now under consideratio
n, Nigeria does not challenge the legal
validity of the Order in Council."
18 "...in relation to the Sector of the boundary now under consideration
, Nigeria does not challenge the legal
validity of that Agreement [i.e. the Anglo-German Demarcation Agreement
of 12 April 1913]."
19 "... in relation to the Sector of the boundary now under consideratio
n, Nigeria does not challenge the legal
validity of that Treaty [i.e. the Anglo-German Treaty of 11 March 1913].
"
20 Regarding the land boundary between Lake Chad and Bakassi, Nigeria re
ferred to "the instruments relied on
by Cameroon, the validity of which Nigeria does not question."
I.C.J. Reports 1974, at pp. 259-260.
22 "will certainly be followed by careful and precise demarcation by the
Parties".
23 This merely confirmed the previously demarcated Anglo-German boundary
on the ground along a 4 km
stretch between boundary pillars 110 and 113: see Report on the First St
age of Nigerian-Cameroun Boundary
Survey May 1966, signed on 2 and 6 June 1966 (Annex NR 146). The work
involved clearing straight lines 12
metres wide through the forest between adjacent boundary posts. No trace
s of these lines now remain.
24 "constitute significant evidence since they appear in annexes to bind
ing instruments".
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25 See NC-M paras. 18.60-18.62.
26 NC-M Vol. V, Annex NC-M 42.
27 See NC-M para 18.60.
28 ibid.
29 Annex NR 147.
30 Annex NR 148.
31 See n. 22.
32 Annex NR 149.
33 Annex NR 150.
34 e.g. NC-M paras. 18.5, 18.56, 18.59; and paras. 6.5(6) and 6.6(1)
above.
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PART III
THE LAND BOUNDARY
CHAPTER 7
THE CORRECT DELIMITATION OF THE BOUNDARY
A. Areas of Defective Delimitation
(i) Introduction
7.1 This section of the Rejoinder will focus on the border areas where it is not sensible or possible to
apply the terms of the original legal instruments and where they therefo
re have to be clarified or
interpreted so as to provide a delimitation which is accurate enough to
enable demarcation to take place:
these border areas include areas where the terms of the original delimit
ation instruments have been
varied by subsequent practice and agreement. In Nigeria's Counter-Memorial examples of such border
areas were identified as
the "mouth of the Ebeji" (NC-M paragraphs 19.40-19.43);
Jimbare (NC-M paragraphs 19.44-19.47);
Namberu-Banglang (NC-M paragraphs 19.48-19.49);
Yin Crossing (NC-M paragraphs 19.50-19.51);
median line of the Gamana River to BP64 (NC-M paragraph 19.83);
Sapeo (NC-M paragraphs 19.32-19.38).
In this section these examples will be further elaborated, and additiona
l instances will be given for the
sake of completeness. The deficiencies in the governing texts to which N
igeria will thus draw attention
are only those which give rise to difficulties of some substance. There
are a number of other deficiencies
which are of lesser significance, and which Nigeria believes can be best
left until an agreed demarcation
of the boundary takes place.
7.2 Before noting the specific instances of defective delimitation which
are of concern to Nigeria, there
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are five general points to be made. The first is that in a number of pla
ces there are material differences
between the English and French texts of the Thomson-Marchand Declaration
. Thus, for example, (with
the differences underlined):
(1) in Article 8 the English version refers to "about a kilometre and
a half", where the French text refers
to "environ 1 kilomètre";
(2) in Article 41 the English version refers to "2 kilometres to the s
outh-west", where the French text
refers to "environ 2 kilomètres au sud-ouest";
(3) in Article 48 the English version refers to "Hosere Lowul, which i
s well over 2 kilometres from the
Kwancha-Banyo road", where the French text refers to "le mont Lowul, qui
se trouve à environ 2
kilomètres de la route..."
(4) in Article 49 the English version refers to "a prominent conical p
eak, Hosere Gulungel", where the
French text refers to "un pic de forme conique, le mont Gulungel";
(5) also in Article 49 the English version refers to a point "5 miles
from Genderu Rest-House", where
the French text has no equivalent reference;
(6) in Article 52 the English version refers to "a very lofty and deso
late plateau", where the French text
refers to "un plateau assez bas et désolé";
(7) in Article 60 the English version refers to "a fairly prominent, p
ointed peak", where the French text
refers to "un pic assez proéminent".
Nigeria submits that great care must be exercised before confirming, as
the correct delimitation of a
boundary, texts containing such discrepancies.
7.3 The second point is that, throughout this Chapter, Nigeria will quot
e latitudes and longitudes to two
distinct levels of precision:
(1) Where reference is being made to a position which has no physical
marker on the ground, latitude
and longitude will be quoted to the nearest half minute, a precision of
about 900 metres.
(2) Where reference is being made to a position where a marker of some
sort (such as a cairn) is present
or to a geographical feature which is not ambiguous (such as the summit
of a hill or the junction of two
rivers), latitude and longitude will be quoted to the nearest second, a
precision of about 30 metres.
Positions quoted in this Rejoinder in the above formats are not to be given any greater precision than
that indicated. Nigeria accepts that positions quoted as in (1) above
will require further consideration
during demarcation. Unless otherwise indicated, Nigeria will quote latit
ude and longitude in terms of
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Minna Datum, the national mapping datum of Nigeria.
7.4 The third general point to be made is that many of the place names u
sed in the Thomson-Marchand
Declaration, the Second Schedule to the Nigeria (Protectorate and Camer
oon) Order in Council 1946
and the Anglo-German Agreements of 1913 were, even at the time of the De
claration, Order in Council
and Agreements, subject to local variation, and a place or feature might
have been known by more than
one name. By now, many of the names used in those two instruments are di
fferent from those used then.
Many villages have moved, taking the name of the village with them. Furt
her confusion can arise when
the site of an old village is occupied by inhabitants from another villa
ge who move there complete with
a new, different name. In the following paragraphs of this Chapter, Nige
ria will, as appropriate, draw
attention to these changes in nomenclature, and will, for clarity, often
use the old name alongside the
current name. For convenience, however, Nigeria sets out at p. 115 of th
e Atlas the principal changes of
name which have occurred: the name changes which concern places and feat
ures on the Cameroonian
side of the boundary are subject to confirmation by Cameroon.
7.5 The fourth general point is that, as the subsequent paragraphs in th
is Chapter will make apparent,
Nigeria accepts as a sufficiently complete and accurate delimitation of
the boundary between Nigeria
and Cameroon, the description of that boundary contained in the Anglo-Ge
rman Demarcation
Agreement of 12 April 1913, for the stretch between boundary pillars 64
and 114, and the Anglo-
German Agreement of 11 March 1913, Articles XV to XVII, so far as concer
ns the boundary running
southwards from boundary pillar 114 to a point north of the Bakassi peni
nsula, identified in Chapter 11
of the Counter-Memorial.
7.6 The fifth general point to be made concerns the similarities which e
xist between many of the
instances of defective delimitation and the circumstances which gave ris
e to the Arbitration Award in the
Argentine-Chile Frontier Case concerning those States' common frontier in the region of the Rivers
Palena and Encuentro. 1 There the original delimitation of the frontier took the boundary to th
e
confluence of the two rivers, from where the boundary was to follow the
River Encuentro to its source
on Cerro Virgen; and from there the boundary was to go to a pre-existing
boundary pillar located on the
shores of Lake General Paz. In fact, the delimitation was erroneous: the
main stream of the River
Encuentro did not have its source on the stated mountain, Cerro Virgen,
but on another mountain. The
approach taken by the Tribunal (Lord McNair, President) was to conclud
e that the clear intention of
those performing the delimitation was that the boundary should link thre
e successive points, namely the
confluence of the two rivers, Cerro Virgen, and the boundary pillar on L
ake General Paz, and that in
getting to Cerro Virgen the boundary should follow the main channel of t
he River Encuentro.
Accordingly, having ascertained which was the main channel of the river,
the Tribunal followed its
course until the point at which it departed in a marked degree from the
direction of Cerro Virgen, then
drew a new line which left the River Encuentro at that point and made fo
r Cerro Virgen in a manner as
far as possible consistent with the general practice evident elsewhere i
n the delimitation, and then
continued on to the boundary pillar on the shores of Lake General Paz. I
t is noteworthy that
(1) the parties did not leave the matter to be resolved by those respo
nsible for demarcating the boundary:
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the defect in the delimitation was too great to be resolved in such a te
chnical process, and indeed a
Mixed Boundary Commission could do no better than report its difficultie
s in this boundary sector; and
(2) the Tribunal gave effect so far as it could to the terms in which the boundary had been delimited and
to what it saw as the essential requirements of that delimitation, but s
ought to overcome its defect by
constructing a line which was in its view consistent with the principle
which in general seemed to have
guided those drawing up the delimitation.
7.7 In the following paragraphs of this section of this Chapter, Nigeria
will deal with the following land
boundary areas in respect of which the governing texts are in need of cl
arification or interpretation:
The "mouth of the Ebeji" (paragraphs 7.8-7.25)
Narki (paragraphs 7.26-7.30)
River Kirawa (paragraphs 7.31-7.35)
The Kohom River (paragraphs 7.36-7.44)
From Mount Kuli to Bourha (paragraphs 7.45-7.59)
Kotcha (Koja) (paragraphs 7.60-7.63)
Source of the Tsikakiri River (paragraphs 7.64-7.69)
Jimbare (paragraphs 7.70-7.76)
Sapeo (paragraphs 7.77-7.83)
Namberu-Banglang (paragraphs 7.84-7.87)
The position of Mount Kombon (paragraphs 7.88-7.98)
The Boundary from Tonn Hill to the Mburi River (paragraphs 7.99-7.111)
(i) the Prominent peak which marks the Franco-British frontier
(ii) Lip and Yang
Sama River (paragraphs 7.112-7.116)
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BP64 (paragraphs 7.117-7.120).
A locator key for these boundary areas is opposite page 366, below.
(ii) The "mouth of the Ebeji"
7.8 Nigeria explained the defective nature of the reference in the delim
itation to the "mouth of the Ebeji"
in NC-M 19.40-19.43. In brief, the Thomson-Marchand Declaration describe
s a line from a point in
2
Lake Chad to "the mouth of the Ebeji" and thence "from this mouth" along the cour
se of the River
Ebeji, etc. A map extract of the area in question is at Fig. 7.1.
7.9 This description is defective because it does not define accurately
the location of the boundary at the
mouth of the Ebeji River, and it assumes that the Ebeji has a single mou
th. In reality the Ebeji does not
have a single mouth, but rather has two branches which lead into Lake Ch
ad, as well as several smaller
3
waterways in that region, together giving it the character of a small de
lta. Cameroon accepts that
4
"L'Ebeji présentait en effet deux embouchures possibles..." (RC, paragraph 3.20), and that "le cours de
l'Ebeji ne semble pas avoir changé depuis le début du siècle" 5 (RC, paragraph 3.21): thus Cameroon
accepts that in 1931 the Ebeji had two mouths.
7.10 Cameroon, in its Memorial, could not of course invoke any specific identification of the "mouth o
f
the Ebeji" in the instruments on which Cameroon relies because there was
none. Instead Cameroon
implicitly sought from the Court confirmation of the location of the mou
th of the Ebeji at longitude 14_
12' 11.7" E, latitude 12_ 32' 17.4" N, which was the location proposed b
y technical experts meeting in
September 1988 (MC, paragraphs 4.120-4.121). In its Reply Cameroon substantially repeats that
location as, implicitly, the mouth of the Ebeji, although further refini
ng it to longitude 14_ 12'
11"7005E, latitude 12_ 32' 17"4013N (RC, paragraph 13.01(a)). The pr
ecision of this latter set of co-
ordinates is 3 millimetres, a level quite unjustified by technology or g
eography. Cameroon seems to be
seeking to improve its case by bogus accuracy.
7.11 In its Reply Cameroon follows the co-ordinates of that location with the words "conf
ormément à la
Déclaration franco-britannique du 10 juillet 1919 et à la Décla
ration Thomson-Marchand des 29
6
décembre 1929 et 31 janvier 1930 confirmée par l'Echange de lettre
s du 9 janvier 1931". In this way
Cameroon seeks to suggest that the co-ordinates are part of the Milner-S
imon and Thomson-Marchand
Declarations. This is incorrect: neither of those instruments gives co-o
rdinates for the "mouth of the
Ebeji" to which each refers. The co-ordinates given by Cameroon are an a
ddition to, not a part of, the
instruments which Cameroon now asserts delimit the boundary.
7.12 Moreover, the co-ordinates used by Cameroon for the mouth of the Eb
eji are the co-ordinates
proposed in 1988 by technical experts appointed within the framework of
the LCBC. As Cameroon puts
it in its Reply, "le point identifié par la C.B.L.T. correspond à l'embouchure de
l'Ebeji telle qu'elle
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existait en 1931 et telle qu'elle était décrite sur la carte Thoms
on-Marchand".(RC, paragraph 4.79; also
paragraph 3.21). This is an incomplete account of the facts: it fails t
o note that the 1988 recommendation
as to the point at which the mouth of the Ebeji was said to have been lo
cated was never finally agreed.
7.13 The point represented by the co-ordinates was the point recommended
by national experts (NC-M,
paragraph 16.48), and was endorsed by the national Commissioners in the
ir resolution No. 2 adopted at
their 36thSession in December 1988 (NC-M, paragraphs 16.48 and 16.50 at p. 404)
. Their decision was
not final. The whole matter of the boundary in Lake Chad was the subject
of a Report of the Marking-
Out of the International Boundaries in Lake Chad, adopted at N'Djamena on 14 February 1990 (Annex
5 to Cameroon's Additional Application; NC-M, paragraph 16.50). Various problems arose over
boundary matters in Lake Chad (NC-M, paragraphs 16.52-16.54), and the
result inter alia was that (i)
the LCBC referred the question of the southern extremity connecting with
the Ebeji River to the two
countries concerned (NC-M, paragraph 16.55), and (ii) the Commission
, at its 41 stSession in 1993,
referred the documents relating to the border demarcation exercise to th
e Heads of State and
Government of the Member States "for a final decision" (NC-M, paragraph
16.56). Thus by 1993 the
question of the location of the boundary point at the mouth of the Ebeji
was still to be finally decided.
The Eighth Summit of the Heads of State and Government, in 1994, decided
to approve the technical
document on the demarcation of the international boundaries of Member St
ates, but subject to the
adoption by each Member State in accordance with its national laws and s
ubject, further, to signature by
the next Summit of the Commission (NC-M, paragraphs 16.57-16.58). At t
he next Summit, in 1996,
which the Heads of State of neither Cameroon nor Nigeria attended, the S
ummit decided "to defer
discussions on the issue" and authorised the President of the Summit to
contact the Heads of State of
Cameroon and Nigeria to find an amicable solution to the problem (NC-M,
paragraph 16.59). Thus the
whole question was expressly deferred, no final decision was reached and
no final documents were
signed recording the necessary agreement to the report of the technical
experts which had embodied the
recommendations as to the location of the mouth of the Ebeji on which Ca
meroon now seeks to rely.
7.14 Cameroon seeks to brush aside the implications which flow from Nige
ria's conclusion as to the non-
binding nature of the experts' 1988 recommendations, in saying that it "
ne change rien à l'exactitude de
8
la détermination, par les experts de la C.B.L.T., de l'embouchure de
l'Ebeji" (RC, paragraph 3.22). Two
points must be noted.
(1) First, Cameroon does not dispute Nigeria's conclusion that the out
come of the LCBC's consideration
of Lake Chad boundary issues, including the location of the mouth of the
Ebeji, was that the experts'
proposals were never finally agreed.
(2) Second, however 'exact' the LCBC's proposals might have been, the
fact remains that they never got
to the stage of being agreed at a Summit, as the Commissioners had thems
elves considered necessary.
7.15 Cameroon can thus be seen to be itself departing from the delimitat
ion set out in the relevant
instruments on which it relies by seeking to add to those terms a set of
co-ordinates which do not appear
in those instruments, and is seeking from the Court confirmation, as tho
ugh it were an already agreed
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fact, of a definition of the mouth of the Ebeji which in fact is not agreed.
7.16 The only agreed terms delimiting the boundary in this area are the words "the mo
uth of the Ebeji".
That is a geographical reference. The map extract at Fig. 7.1 shows the locations of the two branches of
the Ebeji and the location of the co-ordinates given by Cameroon (marke
d "Pt. V"). The map is based on
aerial photographs and greater clarity can be achieved by examining the
photographs themselves. The
aerial photography, in showing clearly the channels now leading out into
Lake Chad, reflects the water
flow of earlier years which were responsible for the creation of those c
hannels. An aerial photographic
mosaic is provided at Fig. 7.2.
7.17 The co-ordinates given by Cameroon, whatever their origin may be, d
o not reflect a true
geographical "mouth of the Ebeji". Neither Fig. 7.1 nor Fig. 7.2 show any trace of any well-defined
channel in the vicinity of the position chosen by the experts as the mou
th of the Ebeji; nor is there any
discernible channel which could be said to connect the experts' chosen '
mouth' to the clearly defined
channel of the Ebeji above the bifurcation. Consequently, if the experts
' location were to be treated as
the mouth of the river, it would be a mouth without a river leading to i
t (and it would be impossible to
apply the terms of the delimitation, which require the boundary to run "
from the mouth along the course
of the Ebeji").
7.18 Cameroon asserts that "ils [les négociateurs] ont choisi un poin
t de repère géographique
9
identifiable, l'embouchure de l'Ebeji" (RC, paragraph 3.15). However, "the mouth of the Ebeji" cannot
be an identifiable point of reference. As Cameroon's Map R3 shows, there is a wide variation in
the high
water mark of Lake Chad: this has continued over many years. It is almos
t impossible to fix, as a matter
of geography, the mouth of a river which debouches into a lake whose are
a varies continuously over the
years; it is even more difficult when large parts of the lake dry up, le
aving the area of water miles away
from the channels of rivers flowing into it.
7.19 Finally, the mapping relied on by the experts was seriously defecti
ve, in a number of respects.
(1) The experts used as their base map the map published with the 1931
Thomson-Marchand Declaration
("the 1931 map"). The inappropriateness of using that map as a reliabl
e basis for the interpretation of the
Declaration has already been made clear: above, paragraphs 6.37(4) and
6.38.
(2) Even taken at face value, that map is so generalised and inaccurat
e that it makes no attempt to
differentiate between the eastern and western channels.
(3) Even a perfect map has a limitation known as 'plottable error'. Th
e experts used the 1931 map on
which the Ebeji River is marked by a line 0.2 mm thick. At the scale of
1:1,000,000, this represents a
width of 200 metres. Thus the plottable error on this map, even if it we
re perfect, would on the ground
represent 200 metres or, in latitude-longitude terms, 7". But the 1931 m
ap was not perfect. It was a
compilation from several other earlier maps (see paragraph 6.38 above)
, and for clarity at the much
smaller scale the map was constructed on the basis of a great deal of ge
neralisation (for example,
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straightening out bends in rivers). It was constructed on a graticule o
f latitude and longitude which
would have been based on local astronomical observations, rather than a
modern survey datum. Taken
together, these factors could give rise to further errors of 100m-400m (
3"-15").
(4) The experts who submitted their recommendations in 1988 measured t
he position of the mouth of the
Ebeji from this map and quoted the result to the nearest tenth of a seco
nd of arc, that is to say 3 metres
on the ground, or 0.003mm on the map. It is impossible for such a map to
support a position quoted to
such accuracy. The best precision it could be on a perfect map would be 200 metres, or 7". But the map
they used was not perfect and errors of at least 1 kilometre can be dete
cted on it when it is compared
with modern mapping.
(5) The latitude and longitude thus obtained was then plotted by the e
xperts on to the LCBC map, which
was constructed on Adindan Datum. Adindan is a town in the Sudan, and in
the area of Lake Chad there
is a difference in latitude and longitude values of 3" in latitude (abo
ut 100m) and 3" in longitude (again,
about 100m) between positions derived from Adindan Datum and those deri
ved from Minna Datum, the
basis for Nigeria's own mapping.
7.20 This is not just a problem of demarcation, since a demarcation team
has no basis for determining
which of the possible choices was in the minds of the negotiators of the
relevant instruments. Before
demarcation (or other identification on the ground of the location in q
uestion) can be attempted, the
language of the relevant instruments needs interpretation, given its fun
damental deficiency in assuming,
wrongly, that the Ebeji had only one mouth. There is a clear parallel to
be drawn with the facts of the La
Palena arbitration between Argentina and Chile (above, paragraph 7.6) where
the relevant delimitation
assumed, wrongly, that the river in question had its source on a particu
lar mountain. Moreover, the
Award in that Arbitration noted
"the general principle that where an instrument (for example, a treaty
or an award) has laid
down that a boundary must follow a river, and that river divides into tw
o or more
channels, and nothing is specified in that instrument as to which channe
l the boundary
shall follow, the boundary must normally follow the major channel. The q
uestion which is
the major channel is a geographical question .... In the Court's opinion
, the major channel
can be determined on both historical and scientific grounds... [The hist
orical evidence was
specific to the circumstances of the River Encuentro.] ... In the Court'
s opinion the three
principal criteria to be applied in a problem of this kind are length, s
ize of drainage area,
10
and discharge."
These principles need some adaptation in respect of Lake Chad, where nor
mal considerations and
calculations of drainage area and discharge applicable to upper reaches
of rivers are impossible to apply
or calculate in relation to a bifurcation of a water-course into two cha
nnels in which the flows are
seasonal and can occur in both directions. But the north-east channel is
the longer of the two possible
channels, has a well-defined course, and leads to a more substantial out
fall in the area marked "Pond" on
Figs. 7.1 and 7.2, whereas the north-west channel just peters out.
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7.21 Nigeria submits that the correct interpretation of the phrase "the
mouth of the Ebeji" as used in the
Milner-Simon and Thomson-Marchand Declarations is that it is the locatio
n at which the north-east
channel as shown on Fig. 7.1 flows into the feature marked "Pond" on that same Map, which location i
s
at latitude 12° 31' 45" N, longitude 14° 13' 00" E (Adindan Datum
).
7.22 Wherever the "mouth of the Ebeji" is held to be located, it seems t
o be agreed between the parties
that the two branches of the Ebeji divide at a bifurcation located at la
titude 12_ 30' 14" N, longitude 14_
12' 03" E (Adindan Datum).
7.23 Following Nigeria's submission at paragraph 7.21 above, Nigeria sub
mits that the course of the
boundary from the mouth of the north-eastern channel of the Ebeji follow
s the middle of that channel
upstream until it meets the point of bifurcation identified in paragraph
7.22 above.
7.24 It is relevant for the Court to be aware that local Nigerian commun
ities have habitually fished in the
waters on the Nigerian side of the north-eastern channel without protest
.
7.25 For the foregoing reasons Nigeria submits that the words "the mouth
of the Ebeji" appearing in the
Thomson-Marchand Declaration are to be understood as bearing the meaning
given in paragraph 7.21
above, so that Article 2 reads as follows:
"(2) On a straight line as far as the mouth of the Ebeji [El Beid], in
latitude 12° 31' 45"
North, longitude 14° 13' 00" East. "
(iii) Narki
7.26 Article 14 of the Thomson-Marchand Declaration provides that, after
reaching a marsh named
Agzabame (in accordance with Article 13), the boundary
"Thence cross[es] this marsh where it reaches a river passing quite clos
e to the village of
Limanti (Limani) to a confluence at about 2 kilometres to the north-we
st of this village."
The aerial photography shows greater detail in this area than does the D
OS 1:50,000 map. An aerial
photographic mosaic covering the area considered below is at Fig. 7.3: a sketch map identifying the
relevant features is at Fig.7.4.
7.27 Between Agzabame Marsh and the modern town of Banki (3 kms NW of L
imani) there are several
courses of the river which might meet the terms of Article 14. These can
be clearly seen in Fig. 7.3. The
Article is thus defective in so far as it provides no guidance as to whi
ch of these courses constitutes the
boundary. The map attached to the Thomson-Marchand Declaration is on a s
cale which does not resolve
the question.
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7.28 Map 5 in Cameroon's Reply (RC, Vol. II) places the boundary on a river course running about 1.5
kms north of Limani: such a course for the boundary takes it to the nort
h of the substantial Nigerian
villages of Narki and Tarmoa (not shown on Cameroon's Map 5, but marked
on the sketch at Fig. 7.4).
However, a sketch map signed by officers of the French and British admin
istrations 11 and delineating
the provisional boundary in May 1921 12 shows the boundary passing within some 250 metres of Limani
- i.e. over a kilometre south of the line shown on Cameroon's Map 5. The
river channel in this location
passes to the south of Narki and arrives at a bifurcation with the main
river opposite Banki: this
bifurcation is at a point about 2 kms north-west of Limani, as required
by Article 14. A boundary
following this course accords with the position observed by the local po
pulation on the ground, as was
seen during a visit by members of the Nigerian Legal Team to Narki in Ma
rch 2000.
7.29 Tarmoa and Narki are both well-established Nigerian villages with s
ignificant populations.
7.30 For the foregoing reasons Nigeria submits that the reference in Art
icle 14 of the Thomson-
Marchand Declaration to "a river passing quite close to the village of L
imanti" is to be understood as
referring to the river course running about 250 metres north of Limani,
to its confluence with the main
river opposite Banki. This river course is delineated with red crosses o
n Fig. 7.4. Article 14 should then
read:
"Thence, crossing this marsh, the boundary reaches the more southerly of
two defined
channels of the Ngassaoua River. From this point, the boundary follows t
he most
southerly of four channels of the Ngassaoua River. The channel runs sout
h-west to the
latitude of Limani, then turns to the west to pass some 250 metres to th
e north of that
village, leaving Narki to Nigeria, and joins the main channel of the Nga
ssaoua River 2
kms north-west of Limani and opposite the town of Banki."
(iv) Kirawa River
7.31 Article 18 of the Thomson-Marchand Declaration provides that, after
following the River Kolofata
as far as its confluence with the River Gwaje or Keraua (as provided fo
r in Article 17), the boundary
runs
"Thence following the Keraua as far as its confluence in the mountains w
ith a river
coming from the west and known by the "Kirdis" inhabiting the mountains
under the name
of Kohom (shown on Moisel's map under the name of Gatagule), cutting i
nto two parts the
village of Keraua and separating the two villages of Ishigashiya."
A map extract covering the area considered below is at Fig. 7.5.
7.32 This provision is defective in that there are in this area two cour
ses of the Keraua (now Kirawa)
River, and the Thomson-Marchand Declaration provides no guidance as to w
hich channel forms the
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boundary.
7.33 Between Gange and Ngabrawa Kuba (in roughly 11_ 15' N latitude) t
wo courses of the Kirawa
River can be seen on the map and on aerial photography (dated 1963): s
ee Fig. 7.5 and the photo-mosaic
at Fig.7.6. Cameroon treats the boundary as constituted by the western channel. At
the northern end of
the river section in question it is not possible to detect on the 1963 a
erial photography any significant
difference in size between the two channels. However, the western channe
l is only well-defined from
Gange southwards to a point where it peters out near the village of Ndab
akora. From Ndabakora to the
village of Blakoltchi, there is no discernible channel.
7.34 By contrast, there is a well-defined eastern channel all the way fr
om Gange to Blakolchi and it is
this channel which should form the boundary. The greater significance of
the eastern channel is
supported by the depiction on the DOS map at Fig. 7.5. On this map, the southern end of the eastern
channel is depicted by a solid blue line whereas the western channel is
depicted by a broken blue line.
This conclusion is supported by Moisel's map, sheet B3 (an extract of w
hich is at Fig. 7.7: this map was
used by Milner and Simon to record their agreed boundary, 13 and was signed by them). This map shows
a village named 'Schriwe' and a village named 'Ndeba' to the west of the
river channel shown as forming
the boundary. On Fig. 7.5, two villages named Chérivé and 'Ndabakora' are shown as lying be
tween the
two channels of the river. These villages are clearly the same as the vi
llages marked on Moisel's map,
and their locations on the Moisel map show that it is the channel to the
east of these villages (i.e. so that
the villages lie to the west of that channel) which forms the boundary.
7.35 For the foregoing reasons Nigeria submits that the reference in Art
icle 18 of the Thomson-
Marchand Declaration to "the Keraua" is to be interpreted as meaning
"Thence following the Kirawa River, and between Gange and Ngabarawa Kuba
its eastern
channel, as far as its confluence ..."
(v) The Kohom River
7.36 Article 19 of the Thomson-Marchand Declaration provides that, after
the confluence of the Rivers
Keraua and Kohom (as provided for in Article 18), the boundary runs
"Thence ... from this confluence as far as the top of Mount Ngossi in a
south-westerly
direction given by the course of the Kohom (Gatagule) which is taken a
s the natural
boundary from its confluence as far as its source in Mount Ngossi; the v
illages of
Matagum and Hijie being left to France, and the sections of Uledde and o
f Laherre
situated to the north of the Kohom to England; those of Tchidoui (Hiduw
e) situated to the
south of Kohom to France."
A map extract covering the area considered below is at Fig. 7.8.
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7.37 This provision is defective in that it assumes that the River Kohom
has its source in Mount Ngossi.
This assumption is incorrect.
7.38 The meaning of Article 19 depends on a correct understanding of whi
ch tributary of the Kirawa
River goes by the name of Kohom. The names given to rivers are not decis
ive of their identity over their
full length. The practice in this part of the world is for streams to ta
ke different names for different parts
of their course especially where, as in this instance, there is a signif
icant gap between the populated
areas, and different tribes reside in the upper and lower reaches of the
river.
7.39 Article 19 requires that from the confluence of the Kirawa and Koho
m rivers referred to the
boundary must follow a river (the Kohom), that this river flows in a s
outh-westerly direction, and that
the boundary goes to the source of the river in Mount Ngossi. Within the
limits of those three 'givens' the
course of the boundary is defectively delimited because the river which
rises on Mount Ngossi is the
Bogaza River (not the Kohom) and, at a crucial point along its course,
it makes an abrupt change of
direction from flowing north-east to flowing south-east. The Bogaza Rive
r, like the Kohom, is a
tributary of the Kirawa.
7.40 The error arose out of a delimitation carried out by officers of bo
th British and French
Administrations in March 1926. They signed a map (Fig. 7.9) which shows the Kohom branching off the
Kirawa at a confluence immediately to the south of a significant loop to
the east in the course of the
latter: this confluence is at latitude 10° 59' 30" N. The loop can be
clearly identified on modern 1:50,000
maps (Fig. 7.8) and lies a little way south of latitude 11_ N. The 1926 map shows the
course of the
Kohom as running straight up to the village and mountain of Ngossi on th
e main watershed, first in a
west-southwest direction and then in a south-west direction. These direc
tions coincide with the
requirement of Article 19 of the Declaration. This 1926 map was used in
the preparation of the Thomson-
Marchand Declaration, and is clear evidence of what the parties had in m
ind when referring, in that
Declaration, to the Kohom River.
7.41 Modern maps show the error in the 1926 depiction. In reality, the B
ogaza River flowing down from
Ngossi towards the north-east does an abrupt (and what would be, to mos
t travellers, a most unexpected)
turn right round to the south-east, forming a large loop into Cameroonia
n territory: it is this stream, and
not the Kohom River, which has its source on Mount Ngossi. The very unex
pected sharp change in the
course of the Bogaza River with its source on Mount Ngossi gave rise to
the error of thinking that the
river with its source in Mount Ngossi was the same river as that which j
oined the Kirawa as the Kohom,
since in their upper reaches both flowed in a generally similar north-ea
sterly direction. That error, made
in 1926, and repeated in the Thomson-Marchand Declaration, was very unde
rstandable.
7.42 Cameroon's choice of the river intended to be referred to as the Ko
hom (RC, Vol. II, Map 6) cannot
be the river referred to as the Kohom in Article 19, and its confluence
with the Kirawa therefore cannot
be the confluence there referred to. Cameroon's choice of river is a tri
butary rising well to the north of
Mount Ngossi (and not "in Mount Ngossi" as Article 19 requires); and i
t flows first north then east,
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joining the Kirawa some 1500 metres NNE of the tributary referred to abo
ve. This, however, is also
inconsistent with Article 19, which refers to the course of the Kohom as
taking the boundary "in a south-
westerly direction".
7.43 Given the terms of Article 19, Nigeria submits that the intention o
f the framers of that provision is
to be taken to be that the confluence referred to is that where the Kira
wa River is joined by the Kohom
River flowing from the direction of the source of the Bogaza River (see
paragraph 7.41 above), and from
that confluence, the boundary should follow the course of the River Koho
m to its source nearest to the
point at which the Bogaza River makes its abrupt turn to the south-east:
that source is on a low saddle
about 1 km south of the Nigerian triangulation point MM154, Matakam. Fro
m that point the boundary
should descend for 600 metres to the sharp bend in the Bogaza River, the
n should follow that river to its
source on Mount Ngossi and from there should run to the summit of the mo
untain.
7.44 For the foregoing reasons Nigeria submits that the relevant part of
Article 19 of the Thomson-
Marchand Declaration should be interpreted as stipulating that the bound
ary runs as follows:
"Thence it runs from this confluence in a west-southwesterly direction g
iven by the course
of the Kohom River to its source 1 kilometre south of the Nigerian trian
gulation point
MM154, Matakam. Thence by a line to join the Bogaza River at a point whe
re it makes an
abrupt change of direction from north-east to south-east. Thence by the
course of this river
south-westwards to its source on Mount Ngossi and from there to the most
northerly
summit of Mount Ngossi by a straight line."
(vi) From Mount Kuli to Bourha
7.45 The first part of Article 25 of the Thomson-Marchand Declaration pr
ovides that, after crossing
Mount Kuli (in accordance with Article 24), the boundary
"Thence run[s] due south between Mukta (British) and Muti (French) t
he incorrect line of
the watershed shown by Moisel on his map being adhered to, leaving Bourh
a and Dihi on
the French side, Madogoba Gamdira on the British, ....".
Map extracts covering the area considered below are at Figs. 7.10 and 7.11.
7.46 This Article is defective in that the requirement to follow a water
shed line which is expressly
admitted to be incorrect, shown on a 90 year old map which displays very
little detail, can be interpreted
in a number of ways. The choice of interpretation should not be left to
the demarcation process.
7.47 Article 25 appears to begin the "incorrect line of the watershed" a
t Mount Kuli. In reality, Moisel's
"incorrect" line has a significant impact on the boundary only from a po
int some 8 kms south of Hosere
Kilda (which is believed to be the modern name for the mountain referre
d to in Article 24 as "Mount
Kuli"). Between Hosere Kilda and that point Nigeria accepts as the boun
dary the watershed line adopted
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by Cameroon in its Reply (RC Vol II Map 7) which approximates to Moisel's incorrect watershed.
7.48 As to the boundary south of that point, one possibility is that the
intention behind the terms of
Article 25 was that the boundary should follow the true watershed which
Moisel thought he was
describing, instead of the incorrect line which he in fact delineated. T
he relevant extract from Moisel's
map is at Fig. 7.12. Moisel's error lay in not knowing (because of the lack of reports fro
m any German
travellers in the area) the correct course of the streams which he show
s rising to the south of Humseki,
one of which he names Waldocho. Moisel showed these streams as part of t
he Maio Kebbi catchment to
the east whereas it is now known that they are part of the Maio Yedseram
catchment to the west. Thus, it
is now apparent that the line of the correct watershed would take the bo
undary far over to the east, into
Cameroon. Such a line does not fit with the rest of the requirements of
the Thomson-Marchand
Declaration regarding the relationship of the boundary to various named
locations, especially Mukta and
Muti (shown as Moudi on Fig. 7.10). It therefore seems that this approach to the proper meaning of
Article 25 should not be adopted.
7.49 An alternative approach would be to treat Article 25 as requiring t
hat the Moisel watershed line be
adhered to, even though it is incorrect. This requires the transposition
of the "incorrect watershed" line
on Moisel's map to the modern map which shows the correct topography.
7.50 Before doing this, it is necessary to establish the limits of that
part of Moisel's line which represents
the watershed incorrectly. This can be done by comparing the river drain
age on Moisel's map with a
modern map of the same area.
7.51 Moisel's most serious error arose in his depiction of the streams r
ising to the south of Humseki
(now Roumsiki), including the Waldocho. These streams are shown as joi
ning up to the north-east of
Muti (now Moudi) and the resultant river is shown flowing southwards,
passing to the east of Muti and
to the west of Schua (now Choua) and Gili (now Guili) to a point 2.5
kms north-east of Bourha. It is then
shown swinging round to the north-east as far as the vicinity of Wuda wh
ere it turns south-east and
flows down to Mahau and onwards, further into Cameroon.
7.52 However, the latter part of this depiction is wrong. Between Schua
and Gili the river (marked
'Dyou' on Fig. 7.11) swings round to the west towards Meafa. Moisel takes the river 5 kms further south
before swinging it to the east. As a result, he incorrectly assigned the various upper streams above S
chua
to the French (i.e. Cameroon) catchment area: the correct course of th
e river placed those streams in the
British (i.e. Nigerian) catchment area.
7.53 If one relied on Moisel's map one would assume that the main waters
hed between the French (i.e.
Cameroon) catchment area and the British (i.e. Nigerian) catchment ar
ea ran in a southerly direction to
the west of the upper streams and then of the river into which they conv
erged, the Maio Bela. This is
not, in fact, the case; once it is understood that these upper streams f
low into the Dyou (Diwu), part of
the Nigerian catchment, it becomes clear that the main watershed runs to
the east of these upper streams,
and close to the Cameroon town of Guili. As Moisel's imaginary course of
the Maio Bela reaches the
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area south of Guili where the streams do flow eastwards into Cameroon, then the error disappears and a
watershed deduced from Moisel coincides with that derived from modern ma
pping. Moisel's incorrect
line thus ends some 5 kms north of Bourha, at 10° 18' 00" N, 13° 3
1' 08" E.
7.54 The correct watershed line is shown in orange on Fig. 7.11 and Moisel's incorrect line in red. For
the purposes of delimitation, Moisel's incorrect line can be regarded as
a series of lines joining
conveniently located hills at the following points:
Point Latitude Longitude
Hill NNW of Moudi 10° 24' 28" N 13° 31' 41" E
Hosere Paliroum 10° 20' 31" N 13° 32' 00" E
Hill A 10° 19' 05" N 13° 31' 20" E
End of "incorrect 10° 18' 00" N 13° 31' 08" E
watershed"
7.55 It may be noted that an attempt was made in September 1920 by offic
ers of the British and French
Administrations to interpret Moisel's incorrect watershed on the ground
and the result was set out in a
Procès-Verbal of 27 thSeptember 1920 (Annex NR 152). This document goes into greater and mo
re
helpful detail than the eventual Thomson-Marchand Declaration and sugges
ts that the boundary should
follow the centre of a track from Muti towards Bourha and that the latte
r town should lie 2 kms to the
east of the frontier.
7.56 Article 25 requires Moisel's incorrect line to be followed, and goe
s on to require Bourha to be left
on the French side of the boundary. A direct transfer of Moisel's incorr
ect watershed to the modern map,
ending at a point in 10° 18' 00" N, 13° 31' 08" E, means that the
boundary continues thereafter to the
south (now on a correct watershed) in such a way that it approaches Bo
urha from the north-east before
curving round to the south. This alignment shows a considerable degree o
f similarity with the alignment
of the boundary around Bourha as drawn on Moisel's map to illustrate the
Milner-Simon Agreement of
1919. It also meets the condition laid down in the 1920 Procès-Verbal that it should leave Bourha 2 kms
to the east.
7.57 In these circumstances the proper interpretation of Article 25 is,
Nigeria submits, that from the
point identified in paragraph 7.47 above, the boundary follows Moisel's
incorrect watershed line until
the point at which it rejoins the correct watershed line, from which poi
nt it continues along the correct
watershed following the prescriptions set out in Article 25 as regards t
he relationship of various
locations with the boundary line.
7.58 Another line, even further to the west (and into Nigeria), has be
en put forward by Cameroon. This
line does not comply with the requirements of Article 25 of the Thomson-
Marchand Declaration as to
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the relationship between the boundary and the incorrect watershed. Thus,
for example, it does not "run
due south" between Mukta and Moudi, but at that point runs west-southwes
t; and it passes to the west of
Ouango Bourha, a village which is located by Moisel with the name Wameng
o Burha at a point 5
kilometres west of the border line and the incorrect watershed. Nor is t
his line consistent with the 1920
Procès-Verbal, since it passes more than 2 kms to the west of Bourha. Accordingly, th
is Cameroon line
cannot be supported as a correct interpretation of Article 25.
7.59 For the foregoing reasons, Nigeria submits that the name "Hosere Ki
lda" should be substituted for
"Hosere Kuli" in Article 24 of the Thomson-Marchand Declaration and that
the first part of Article 25 of
the Thomson-Marchand Declaration should be interpreted as stipulating a
boundary -
"Thence from Hosere Kilda the boundary follows a watershed between the t
ributaries of
the Maio Muri to the west and those of the Maio Dyou to the east, leavin
g the village of
Amsa to Cameroon, as far as the summit of a hill some 1300 metres NNW of
Moudi
(Muti), which summit is in latitude 10° 24' 28" N and longitude 13°
31' 41" E. From this
summit, the boundary follows a series of three straight lines that close
ly follow the
incorrect line of the watershed shown on Moisel's Map B3 attached to the
Milner-Simon
Declaration of 1919. In so doing, the village of Moudi, which lies on th
e south bank of the
Maio Potoki, is left to Cameroon. The co-ordinates of the end points of
the three straight
lines are as follows:
Point Latitude Longitude
Hill NNW of Moudi 10° 24' 28" N 13° 31' 41" E
Hosere Paliroum 10° 20' 31" N 13° 32' 00" E
Hill A 10° 19' 05" N 13° 31' 20" E
End of "incorrect 10° 18' 00" N 13° 31' 08" E
watershed"
"From this last point, which marks the end of Moisel's "incorrect waters
hed", the
boundary follows the main watershed southwards between the catchment of
the Maio
Yedseram (Nigeria) and that of the Maio Kebbi (Cameroon), passing 15
00 metres to the
west of Bourha and leaving Dihi to Cameroon and Maduguva and Gandira to
14
Nigeria..... "
(vii) Koja (Kotcha)
7.60 Article 27 of the Thomson-Marchand Declaration provides that, after
running through Mount
Mulikia (in accordance with Article 26), the boundary runs
"Thence from the top of Mount Mulikia to the source of the Tsikakiri, le
aving Kotcha to
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Britain and Dumo to France and following a line marked by four provision
al landmarks
erected in September 1920 by Messrs. Vereker and Pition."
A map extract of the area considered below is at Fig. 7.13.
7.61 This provision is defective because, while Article 27 provides that
Kotcha and Dumo lie
respectively on the British and French sides of the boundary, it only de
scribes the course of the
boundary itself between Mount Mulikia and the source of the Tsikakiri by
reference to four provisional
landmarks erected in 1920 by Vereker and Pition. There is no indication,
either in Article 27 or
elsewhere, as to the location of the four landmarks, although a cairn ha
s been found at latitude 10° 04'
43" N, longitude 13° 17' 49" E which might be one of them.
7.62 The position of Mount Mulikia can be deduced from a comparison of M
oisel's map C3 (Fig. 7.12)
with Fig. 7.13. From Mount Mulikia, the boundary, following the principle which is com
monly adopted
in the Thomson-Marchand Declaration, should follow the line of the water
shed. That line runs just south-
east of Kotcha (now called Koja), leaving it to Nigeria as expressly r
equired by Article 27. Koja is a
well-spread-out village lying across the watershed. Since the 1930s Koja
has expanded, and Nigerian
farming south-east of the watershed has been unchallenged. The boundary
now runs up to 1 kilometre to
the south-east of the watershed between Boudjouma and the cairn of stone
s in the Paka Hills at latitude
10° 04' 43" N, longitude 13° 17' 49" E.
7.63 For the foregoing reasons Nigeria submits that the last part of Art
icle 27 should be interpreted as
stipulating that the boundary runs -
"...leaving Koja and its associated farmlands to Nigeria and Dumo to Cam
eroon,
following the line of the watershed passing through a cairn at latitude
10° 04' 43" N,
longitude 13° 17' 49" E..."
(viii) Source of the Tsikakiri River
7.64 The first part of Article 27 of the Thomson-Marchand Declaration pr
ovides that, after running
through Mount Mulikia (in accordance with Article 26), the boundary ru
ns
"Thence from the top of Mount Mulikia to the source of the Tsikakiri, ..
...".
A map extract of the area considered below is at Fig. 7.14.
7.65 This provision is defective because there appear to be three possib
le sources of this river. Two of
these rise to the east of a prominent 1200m mountain, one flowing round
the north of the mountain to its
western flank, the other to the south of the mountain joining the former
on the western side of the
mountain. A third source rises on the south-western side of the mountain
, flowing down to join the
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southern tributary before its confluence with the northern one.
7.66 Uncertainty about the source of the Tsikakiri River also affects Ar
ticle 28, since that Article
provides that the boundary continues from the source by following the co
urse of the Tsikakiri River:
determination of the source clearly determines which course of the river
is to be followed as the
boundary. Article 28 states expressly that the course to be followed is
not the course as shown on
Moisel's map: it is to follow the course of the river "as it exists in r
eality and not as it is shown on
Moisel's map".
7.67 Cameroon's Map 8 (RC Vol. II) shows the boundary as following a l
ine from west of Doumo
(Dumo) some way to the north of the watershed, eventually merging with
the northern tributary of the
Tsikakiri River. This line does not reflect the correct application of A
rticle 27. It only follows the
northern tributary for part of its length and not from its source (as i
s expressly required by Article 27);
and the place at which the line joins the tributary some 1500 metres bel
ow its source can only with
difficulty be joined with the preceding instruction in Article 26 of the
Thomson-Marchand Declaration
which requires the boundary to run through the top of Mount Mulikia to t
he source of the Tsikakiri.
7.68 For its part Nigeria believes that, correctly understood, Article 2
7 requires that the boundary should
follow the southern tributary of the Tsikakiri all the way from its sour
ce (thus complying with the clear
terms of Article 27). That source is easily joined with the watershed l
ine around Dumo.
7.69 For the foregoing reasons Nigeria submits that
(1) the first part of Article 27 of the Thomson-Marchand Declaration s
hould be interpreted as stipulating
that the boundary runs -
"... following the line of the watershed passing through a cairn at lati
tude 10° 04' 43" N,
longitude 13° 17' 49" E, and then along the main watershed to the hig
hest source of the
southern branch of the Tsikakiri River at latitude 10° 01' 57" N and
longitude 13° 17' 18"
E"; and
(2) the reference to "the course of the Tsikakiri" in Article 28 shoul
d be construed accordingly.
(ix) Jimbare
7.70 Articles 35, 36 and 37 of the Thomson-Marchand Declaration provide
that, after following a line to
the summit of the Wamni Range (as provided for in Article 34),
"(35) Thence the frontier follows the watershed from the Maio Wari to
the west and from
the Mao Faro to the east, where it rejoins the Alantika Range, it follow
s the line of the
watershed of the Benue to the north-west and of the Faro to the south-ea
st as far as the
south peak of the Alantika Mountains to a point 2 kilometres to the nort
h of the source of
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the River Mali.
(36) Thence from this peak by the River Sassiri, leaving Kobi to Franc
e and Kobi Leinde
to Great Britain, Tebou and Tscho to France, as far as the confluence wi
th the first stream
coming from the Balakossa Range (this confluence touches the Kobodji Ma
peo Track),
from this stream towards the south, leaving Uro Belo to Great Britain an
d Nanaoua to
France.
(37) Thence the boundary rejoins the old boundary about Lapeo in Frenc
h territory,
following the line of the watershed of the Balakossa range as far as a p
oint situated to the
west of the source of the Labidje or Kadam River, which flows into the R
iver Deo, and
from the River Sampee flowing into the River Baleo to the north-west."
A map extract of the area considered below is at Fig. 7.15.
7.71 These three Articles are defective in that they contain errors of s
ubstance which make their
meaning unclear, or which at least render their terms misleading. These
errors are as follows:
(1) As to Article 35: the text takes the boundary as far as "the south
peak of the Alantika Mountains",
but it is unclear what the next following words signify ("to a point 2
kilometres to the north of the source
of the River Mali"): the boundary cannot at one and the same time run b
oth to a peak of the Alantika
Mountains and to a point 2 kms north of the source of the River Mali. Th
e French text of the words
following the reference to the Alantika Mountains is "en un point situé
...", and it may be that it has been
mistranslated as "to" rather than "at", since "the south peak of the Ala
ntika Mountains" is located about
2 kms north of the source of the River Mali.
(2) As to Article 36: the Article refers to a waterway flowing from an
identified peak (i.e. the south peak
of Alantika Mountains) "as far as the confluence with the first stream
coming from the Balakossa
range", and names this waterway (which is flowing westwards) as the Ri
ver Sassiri. However, in reality
that waterway is named the Leinde or Lugga, and it is the waterway flowi
ng northwards from Nanoua to
the same confluence which is the River Sassiri.
(3) As to Article 37:
(a) the text refers to the boundary rejoining "the old boundary about
Lapeo", which is not clearly
defined. It may refer to the (mistaken) belief which underlay the Miln
er-Simon Agreement 1919 that the
Alantika and Balakossa (also Balkosa) Mountains formed a continuous ra
nge, the watershed along
which constituted the boundary (see Article 15 of the 1919 Agreement):
Moisel's map, which was used
in preparing the 1919 Agreement, shows a continuous mountain watershed.
But in fact there is no such
continuous mountain range or watershed, and thus no "old boundary" follo
wing its course. Alternatively,
it may refer to the provisional alignment which was agreed between offic
ers of British and French
Administrations on 12 November 1920 (Annex NR 153) and which followed
a line some way to the east
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of the Sassiri stream and Nanoua. If this is so, its description in the
signed document is vague, and thus
the meeting point with the "old boundary" referred to in Article 37 is e
qually vague. As a further
alternative, the reference may be to some other "old boundary", but in t
hat case it is wholly unclear what
that other boundary might be.
(b) Article 37 assumes that a watershed can be followed without interr
uption among the Balkosa
Mountains to a point near the source of the Labidje River. This, however
, is untrue, since the Kadam
River (which, contrary to the terms of Article 37, is not another name
for the Labidje River but is a
separate river) cuts right through the mountain range and has its sourc
e on its northern slopes and in the
plain to the north. This river would have to be crossed on the way to th
e source of the Labidje River: a
clear need for a crossing of the Kadam River is not provided for in Arti
cle 37.
(c) The final words of Article 37 do not make sense. The text refers t
o the boundary as "following the
line of the watershed as far as a point situated to the west of the sour
ce of the Labidje or Kadam River";
it goes on to describe that river with the words "which flows into the R
iver Deo". To that point the text
makes sense. But it then continues with the words "and from the River Sa
mpee flowing into the River
Baleo to the north-west". There is nothing in the sentence to which the
words "and from the River
Sampee" can relate.
7.72 Cameroon agrees with Nigeria that a description of this section of
the boundary is given at greater
length in a Procès-Verbal signed by Logan and Le Brun on 16 October 1930 (Annex NR 154).
Cameroon's Reply quotes the first part of this document in full (RC, paragraph 4.84).
Surprisingly,
Cameroon then goes on to say
"Il [i.e. the Logan-Le Brun description of the boundary] est cohérent
avec les termes de la
Déclaration Thomson-Marchand, ce que le Nigéria ne conteste pas. I
l est aussi conforme à
la carte camerounaise I.G.N. de la région (carte no. 12 de l'atlas c
artographique joint à la
présente réplique, également reproduite page suivante). On peu
t souligner en particulier
que la lettre Logan-Le Brun précise que la rivière Sassiri (contr
airement à ce qui est
présenté sur la carte 69 du Nigéria) se dirige vers le sud, ce
qui fait que la frontière
figurant sur la carte no. 12 de l'atlas du Cameroun avec une ligne qui s
uit la rivière vers le
sud à partir du point de confluence correspond au texte. La frontiè
re est donc correctement
délimitée par la Déclaration Thomson-Marchand..." 15 (RC, paragraph 4.85).
Although Nigeria observes that the Logan-Le Brun description of the boun
dary does, in fact, correspond
to the terms of the Thomson-Marchand Declaration in the area between the
south peak of the Alantika
Mountains and Nanaoua, it does not correspond to those terms in the area
south of Nanaoua, nor does it
conform to the Cameroonian IGN map of the region (RC Vol. II Map 12).
7.73 Nigeria has sent members of its legal team to the area and they hav
e travelled along much of the
boundary described in the Logan-Le Brun document, between the confluence
referred to in Article 36,
Nanaoua and Namberu. As a result Nigeria has revised the opinion it expr
essed in paragraph 19.44 et
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seq. of its Counter-Memorial and is able to state where the boundary defined by the Logan-Le Brun
Procès-Verbal runs. To the south of Nanoua, the boundary as described by Logan-Le Bru
n follows a
very different line from that originally envisaged in the Thomson-Marcha
nd Declaration. South of
Nanoua, near the prominent rock slide known as Kombunga, it turns west u
p a stream valley and leaves
the bulk of the Balakossa Range to Cameroon. It then follows the Kadam R
iver through the western
outliers of these mountains to a point north-east of Jumba (shown on Fi
g. 7.16) and thence in straight
lines through a series of cairns to the Maio Namberu south of Sapeo. Thu
s Sapeo is left to Nigeria as is
the whole of the Sapeo range of mountains.
7.74 Furthermore, it is clear, from discussions with the local inhabitan
ts, that the boundary as described
in the Logan-Le Brun Procès-Verbal is the boundary which has been observed by them for the past 70
years, and is still being observed today. Nigeria would draw the attenti
on of the Court to the fact that, in
relying on the Logan-Le Brun Procès-Verbal, Nigeria is giving up any claim to the northern slopes of
the Balakossa Range as allocated to Nigeria by the Thomson-Marchand Decl
aration.
7.75 As a final point Nigeria notes that Logan, in a letter of 17 Octobe
r 1930 to the Resident, Yola, with
which he forwarded a copy of the Procès-Verbal which had been agreed with Le Brun (Annex NR 155),
justified their choice of boundary line by referring to "the existence o
f the frontier, as shown on the map,
for the last ten years".
7.76 For the foregoing reasons Nigeria submits that Articles 35, 36 and
37 of the Thomson-Marchand
Declaration should be understood in the light of the Logan-Le Brun Procès-Verbal, and are therefore to
be interpreted as stipulating that the boundary follows a line -
"(35) ... as far as the south peak of the Alantika Mountains, known as
Hosere Bila, lying 2
kilometres to the north of the source of the Maio Mali and in latitude 8
° 38' 30" N,
longitude 12° 30' 00" E.
(36) Thence from this peak by the course of the Maio Leinde (or Lugga
) to its confluence
with the Maio Sassiri running from the south, which confluence lies on t
he Kojoli-Jimbare
[So'o] 16road. From the confluence, the boundary follows the Maio Sassiri upstre
am to its
source in a marsh approximately 300 metres north of the site of the vill
age of Nanaoua,
and thence crosses the watershed, leaving the site of Nanaoua to Cameroo
n, to reach the
source of the Maio Nyemsenga.
(37) Thence the course of the stream Nyemsenga downstream to its confl
uence with the
Maio Silba, thence the course of the Maio Silba downstream to its conflu
ence with a
stream known as Jetwunga, flowing from the west. About 100 metres up the
Jetwunga
from the confluence is a prominent rock slide over which the stream flow
s, known locally
as Kombunga. The boundary follows the Jetwunga upstream until it meets a
path running
to the west at a point 400 metres to the south of a Nigerian village cal
led Wuro Lawal.
From this point, the boundary follows a footpath until it reaches a poin
t close to the source
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of the Wusima stream, thence by this stream southwards, leaving Nyagan t
o Nigeria, to its
confluence with the Maio Kadam..."
(x) Sapeo
7.77 Articles 37 and 38 of the Thomson-Marchand Declaration provide that
, after running south from a
particular stream coming from the Balakossa Range (as provided for in A
rticle 36),
"37. Thence the boundary rejoins the old boundary about Lapeo in French
territory,
following the line of the watershed of the Balakossa range as far as a p
oint situated to the
west of the source of the Labidje or Kadam River, which flows into the R
iver Deo, and
from the River Sampee flowing into the River Baleo to the north-west.
38. Thence from this point along the line of the watershed between the R
iver Baleo and
the River Noumberou along the crest of the Tschapeu Range, to a point 2
kilometres to the
north of Namberu, turning by this village, which is in Nigeria, going up
a valley north-east
and then south-east, which crosses the Banglang range about a kilometre
to the south of
the Kordo River."
A map extract of the area considered below is at Fig. 7.16.
7.78 Nigeria has already explained the meaning of these provisions, how
they relate to the topography of
the area and how they were affected by a long-established variation to t
he boundary as delimited by
Articles 37 and 38 (NC-M, paragraphs 19.32-19.38). The main elements o
f Nigeria's explanation were -
(1) the terms of the delimitation (stating that the boundary follows
"the line of the watershed ... along the
crest of the Tschapeu Range, to a point 2 kilometres to the north of Nam
beru, ... which is in Nigeria ...")
would place Sapeo on the Cameroon side of the boundary (NC-M, paragraph
19.32);
(2) the DOS map sheet of the area, at Map 67 in the Atlas to Nigeria's Counter-Memorial, clearly
indicates the relevant features (ibid.);
(3) the Thomson-Marchand Declaration built on earlier agreements and d
iscussions, notably the Milner-
Simon Declaration of 1919 (which was too crude to be of much practical
use) and the Mair-Pition
proposed delimitation (which gave a more detailed description of the re
levant sector of the boundary)
(NC-M, paragraphs 19.33-19.35);
(4) the effect of the Mair-Pition delimitation was to place Namberu an
d Sapeo on the British/Nigeria
side of the boundary, and a certain other area on the French/Cameroon si
de (ibid.);
(5) prevailing opinion in the 1920s and 1930s was that the boundary de
limitations in the various formal
instruments were in a sense merely indicative, the real boundary on the
ground being left for
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determination by the eventual demarcation which it was expected would ta
ke place (NC-M, paragraph
19.36);
(6) the attribution of Sapeo to the British side of the boundary was c
onfirmed by the Logan-Le Brun
agreement of 16 October 1930 (i.e. after the Thomson-Marchand Declarati
on was adopted, but before its
formal approval in 1931) (NC-M, paragraph 19.37);
(7) however, while the Mair-Pition proposal for Namberu to go to Brita
in and the other specified area to
go to France were incorporated into the eventual Thomson-Marchand Declar
ation, for some unexplained
reason the proposal affecting Sapeo was omitted from the text, although
the map attached to it (NC-M
Atlas, map 68) showed a boundary line running to the south of Sapeo and thus
placing it on the British/
Nigerian side of the boundary (NC-M, paragraph 19.38);
(8) extensive practice since the 1920s, i.e. for some three quarters o
f a century, has confirmed that Sapeo
has been treated by the Nigerian authorities and by the local inhabitant
s as being in Nigeria, as
recommended by Mair-Pition and confirmed by Logan-Le Brun (ibid.).
7.79 In March 2000, the Nigerian legal team visited the area and found t
hree large cairns in good
condition in the expected positions in the immediate vicinity of Sapeo a
nd the bearing between them
was within 1_ of the expected 219_ as quoted by Logan and Le Brun in sec
tion 2 of their Procès-Verbal.
These are annotated on Fig. 7.16 as GPS 22, GPS 23 and GPS 24 respectively. Photographs of two of
these cairns are atPlate 1. Their condition suggests that they have been respected and preserved b
y the
local communities for seventy years.
7.80 As already noted (above, paragraph 7.75) Logan, in a letter of 17
October 1930 to the Resident,
Yola, with which he forwarded a copy of the Procès-Verbal which had been agreed with Le Brun,
justified their choice of boundary line by referring to "the existence o
f the frontier, as shown on the map,
for the last ten years". It is clear that Sapeo was included as part of
Northern Cameroons for the purposes
of the plebiscite of 1959 (Annexes NR 156 and NR 157), and also that t
he villagers participated in the
Northern Cameroons Plebiscite of 1961 (Annex NR 158).
7.81 Evidence of Nigerian administration of Sapeo since Independence in
1960 includes the
administration of Sapeo Primary school from as early as 1969 by the Nige
rian local education authority
(Annex NR 159), the maintenance of and provision of medicines to the d
ispensary at Sapeo (Annex NR
160) and the provision of public Health Care and immunisation programme
s by the Nigerian local
authority (Annex NR 161), taxation of the residents by the Nigerian lo
cal authority from as early as
1962 to 1993 (Annex NR 162) 17the inclusion of Sapeo in Nigerian local legislation (Annexes NR 163-
NR 167), and the participation by the inhabitants of Sapeo in Nigerian
elections (Annex NR 168). None
of these acts has been the subject of any protest by Cameroon. The legal
concept of historical
consolidation of title is explained above in paragraph 3.42 et seq.
7.82 All of the people of the region in question are part of the Chamba
ethnic group. Any disruption of
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the Chamba's unity would have serious social consequences.
7.83 For the foregoing reasons Nigeria submits that Articles 37 and 38 o
f the Thomson-Marchand
Declaration should be understood in the light of the Mair-Pition proposa
ls, the Logan-Le Brun Procès-
Verbal and well-established local practice, and are therefore to be interprete
d as stipulating that, in the
region of Sapeo, the boundary follows -
"(37) ...to its confluence with the Maio Kadam, and thence by this riv
er as far as a point
from which the summit of a hill known as Wumkola in the Balkossa Mountai
ns has a
bearing of 47°.
(38) From this point on the Maio Kadam, the boundary runs in a straigh
t line for a
distance of approximately 1600 metres (one mile) on a true bearing of
202° to a small hill
called Bomdingba, thence in a direct line on a true bearing of 219° b
y a series of cairns to
a point on the Maio Namberu (Nangua) approximately 3600 metres (2¼
miles) ESE of
Namberu village, leaving Sapeo, Jumba and Lainde to Nigeria, thence by t
his river
upstream ..."
(xi) Namberu-Banglang
7.84 Article 38 of the Thomson-Marchand Declaration provides that the bo
undary runs
"Thence from this point along the line of the watershed between the Rive
r Baleo and the
River Noumberou along the crest of the Tschapeu Range, to a point 2 kilo
metres to the
north of Namberu, turning by this village, which is in Nigeria, going up
a valley north-east
and then south-east, which crosses the Banglang range about a kilometre
to the south of
the source of the Kordo River."
A map extract of the area considered below is at Fig. 7.17.
7.85 The text is deficient in that it refers to the boundary "going up a
valley north-east and then south-
east". There is no valley in this region running in those directions. Th
ere is a valley running north-west
and then south-west, but that is not what Article 38 says.
7.86 The Logan-Le Brun Procès-Verbal rectifies the error in Article 38 in the area beyond Namberu by
using the phrase "thence the main course of the Mayo Namberu to its sour
ce in a well-defined saddle
approx. ½ mile east of the main summit of the Hossere Banglang" (Ann
ex NR 154). There is in fact no
saddle at the distance and bearing from the main summit if this main sum
mit is taken to be the Nigerian
triangulation station shown as Bangla on Fig. 7.17. However, there is a saddle at a distance of 1600
metres and on a true bearing of 150° which is just above a source of
the Maio Namberu. This, Nigeria
submits, is the saddle to which Logan and Le Brun refer.
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7.87 For the foregoing reasons Nigeria submits that Article 38 of the Th
omson-Marchand Declaration
should be understood in the light of the Logan-Le Brun Procès-Verbal, and is therefore to be interpreted
as stipulating that the boundary follows a line defined by Logan/Le Brun
as far as a saddle in the Hosere
Banglang which saddle is taken to be that lying at a distance of 1600 me
tres on a true bearing of 150°
from the Nigerian triangulation station F6 Bangla. The relevant part of
Article 38 would therefore read:
"... thence by this river upstream first in a north-west direction and t
hen south-west to a
saddle above its source, which saddle lies on a true bearing of 150° and at a distance of
1600 metres from the Nigerian triangulation station F6 Bangla."
(xii) The Position of Mount Kombon
7.88 Articles 60 and 61 of the Thomson-Marchand Declaration provide that
, after following the
watershed between certain specified headwaters (as provided for in Arti
cle 59),
"(60) Thence the Frontier follows the watershed amongst these Hosere H
ambere (or
Gesumi) to the north of the sources of the Maio Kombe, Maio Gur and Mai
o Malam to a
fairly prominent, pointed peak which lies on a magnetic bearing of 17_ f
rom a cairn of
stones, 8 feet high, erected on the 15 September, 1920, on the south side of the above
Banyo-Kumbo-Bamenda road at a point 1 mile from N'Yorong Rest-camp and 8
½ miles
from Songkorong village.
(61) From this peak in the Hosere Hambere (or Gesumi), which is situ
ated just to the east
of the visible source of the Maio M'Fi (or Baban), the Frontier follow
s the watershed,
visible all the way from the Cairn, between the Maio Malam to east (Fre
nch) and the Maio
M'Fi (or Baban) to west (British), till it cuts the Banyo-Kumbo-Bame
nda road at the
Cairn. This Cairn is immediately under the highest peak of the Hosere Na
ngban, which is
shown on Moisel's map F 2 as Hosere Jadji, but Jadji is really the name
of the Pagan head
of N'Yorong village."
A sketch map of the area is at Fig. 7.18.
7.89 These provisions are defective in that, for several interrelated re
asons, they result in considerable
uncertainty as to the line to be followed by the boundary.
7.90 Before spelling out the reasons for this uncertainty, Nigeria draws
attention, by way of background,
to the circumstances in which the boundary came at that time to be descr
ibed. On 23 January 1927 Mr
Izard, Assistant District Officer, wrote a letter to the Resident, Adama
wa Province (Annex NR 169),
which contained the following passage:
"3. It is however my duty to record for future reference that practicall
y the whole of the
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boundary from the Maio Yin 18south to the hill referred to in para 17 of the Mair-Ovignon
procés verbale as lying on a bearing of 17 degrees from the Nyurong (
or Gidan Serifo)
cairn (of the same para) was observed only from the main Dodeo-Banyo-B
amenda road at
a distance of in many cases 6 to 8 miles.
4. From this road (at all events from the cairn and presumably elsewher
e also) the
Mambila Plateau appears as a wall of mountains of which the crest would
offer a distinct
and unmistakable boundary. It will however probably be found on delimiti
ng this
boundary that the headwaters of several streams if pursued to their most
extreme source
cut far back from this apparently unmistakable boundary into Mambila occ
upied lands.
5. The obvious intention of the Mair-Ovignon procès verbale was a poi
nt to point line
following the peaks of this scarp; and if this intention be adhered to i
t is a simple
boundary.
6. If however the French insist on following each stream to the extreme
source of its
remotest tributary, it would I submit, from what I know of the topograph
y of the country,
not only be a breach of the spirit of the procès verbale, but might c
ause hardships to
Mambilas living on top of the plateau and farming such shallow gullies."
It is against this background that the problem of accurate delimitation
in these mountainous areas is to be
seen.
7.91 First, there is uncertainty as to the location of the 'fairly promi
nent, pointed peak' referred to in
Article 60. A map extract of the area is at Fig. 7.18. At the textual level it is to be noted that the French
text does not describe the peak as 'pointed' - "jusqu'à un pic assez
proéminent". At the topographical
level, there are several peaks to which reference might be being made. C
ameroon did not make it clear
in its Memorial where it thinks Mount Kombon lies. It assigned the name to a hill at th
e junction of the
19
Thomson-Marchand and 1946 Order in Council delimitations without giving any clear indication
20
where that might be. Crude sketch maps give three quite different positions. In particular, the map in
the Memorial at p. 424 suggests that the hill lies north-east of Bang. Cameroon, in
its Reply, has now
submitted a map (RC Vol. II, Map 18) which shows the boundary passing
to the north of Bang and well
to the north of a mountain called "Kombong".
7.92 Nigeria, in its Counter-Memorial, while referring to the peak which it believed was intended by the
neutral term "Hill 1660" (NC-M, paragraph 19.14), expressed caution ab
out the true position of Mount
Kombon. There were two reasons for this caution:
(1) Article 60 does not use the term "Mount Kombon" (or any other nam
e) for the peak being referred to;
(2) the IGN France 1:50,000 Map Sheet NC-32-XVIII-3a-3b (1955) shows
two hills between Bang and
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Tamnyar as being named "Kombon".
7.93 Since Nigeria's Counter-Memorial was prepared, members of Nigeria's legal team have visited the
area. On the basis of their observations, and further consideration of t
he issues which arise, the
significance of Article 60 of the Thomson-Marchand Declaration now appea
rs to be as follows:
(1) The crucial reference is to a cairn of stones, 8 feet high, erecte
d on 15 September 1920;
(2) This cairn is now in Cameroon, and Nigeria has not been able to ve
rify its existence: neither in its
Memorial nor in its Reply has Cameroon given its location;
(3) The Thomson-Marchand Declaration requires the cairn to be (i) on
the south side of the Banyo-
Kumbo-Bamenda road, (ii) 1 mile from N'Yorong rest camp, (iii) 8½
miles from Songkorong village,
(iv) on the boundary, and (v) immediately under the highest peak of
the Hosere Nangbang (which is
shown on Moisel's map as Hosere Jadji, although Jadji is the name of the
head of N'Yorong village).
(4) This last observation suggests that the village now known as Yadji
was formerly referred to as
N'Yorong.
(5) On that basis the cairn can with a fair degree of probability be l
ocated at or near a point whose co-
ordinates are latitude 6° 24' 05" N and longitude 11° 11' 55" E.
(6) From that location, according to Article 60, a "fairly prominent p
ointed peak" lies on a magnetic
bearing of 17°. The magnetic variation in 1931 would have been about
9°W. Thus, the true bearing from
the cairn to the pointed peak was, and still is, 8°. This bearing run
s direct to the north-westerly of the
two summits named "Mount Kombon" on the IGN France map referred to in pa
ragraph 7.92(2) above.
The relevant features are shown on the sketch map at Fig. 7.19.
7.94 Nigeria now believes that the "fairly prominent pointed peak" to wh
ich Article 60 refers is this
north-westerly summit (now known locally as Itang Hill) and is not the
hill referred to as "Hill 1660" in
Nigeria's Counter-Memorial. Nigeria still asserts that "Hill 1660" is the peak at which the 1946 Ord
er in
Council delimitation meets that of the Thomson Marchand Declaration.
7.95 If Itang Hill is taken to be the peak referred to in Article 60 it
complicates the delimitation of the
boundary north and west of it. This is because Itang Hill does not (as
required by Article 60) lie on the
watershed referred to in Articles 60 and 61, but rather some 3 kms off i
t along a branch ridgeline. If this
ridgeline were to be followed as the boundary to Itang Hill, it would be
strictly necessary, if the
watershed were to be adhered to, to regain the watershed described in Ar
ticle 61 by retracing the route
along the same branch ridgeline, but that would clearly be nonsensical.
7.96 Rather than such a nonsensical solution, Nigeria submits that the c
orrect way of proceeding would
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be, in accordance with the principle adopted in the Argentine-Chile Frontier Case, 21 to follow the
watershed until the point at which it runs away from the expressly stipu
lated boundary peak (i.e. Itang
Hill), and then from that point to follow a straight line to Itang Hill
, and from there to follow the upper
edge of the escarpment to the south-west of Sanya until it rejoins the w
atershed. This line is shown on
the map extract at Fig. 7.18.
7.97 Sanya is a Nigerian village inhabited by the Mambilla tribe. It and
its farm and grazing lands have
been Nigerian for many generations: it will be recalled that Mr Izard re
ferred to the lands to the north of
the escarpment as "Mambila occupied lands" (above paragraph 7.90).
7.98 For the foregoing reasons Nigeria submits that Articles 60 and 61 o
f the Thomson-Marchand
Declaration should be interpreted as stipulating that after following th
e watershed between the
headwaters specified in Article 59,
"(60) Thence the frontier follows the watershed amongst these Hosere H
ambere (or
Gesumi) to the north of the sources of the Maio Kombe and the Maio Gur
to the summit
of a hill, height 1720 metres, lying about 1 kilometre west of Tamnyar.
From this hill, the
frontier runs in a straight line in a south-westerly direction for about
2300 metres to the
summit of a hill, height 1751 metres, shown on Cameroon maps as Mount Ko
mbon but
called Itang by the Mambilla people.
(61) From this summit, the frontier follows the edge of the escarpment
leaving Sanya to
Nigeria until it reaches the watershed between the Ntum and its tributar
ies to the west and
the Dja to the south-east. Thence it follows this watershed southwards f
or about 900
metres to the most easterly summit of a ridge called Tonn running approx
imately east-
west and having three summits..."
(xiii) The Boundary westwards from Tonn Hill to the Mburi River
7.99 At this point it may be convenient to recall that the boundary runn
ing westwards from "Mount
Kombon" is determined by the Nigeria (Protectorate and Cameroons) Orde
r in Council 1946, rather
than, as with the whole boundary sector southwards from Lake Chad to thi
s point, the Thomson-
Marchand Declaration. This means that:
(1) the boundary is not delimited as a continuation of the delimitatio
n of the Thomson-Marchand
Declaration (which would take it in a generally east to west direction)
but in the opposite direction (i.e.
generally running west to east); and
(2) the boundary as described in the Order in Council originally delim
ited a purely internal, provincial
boundary within Nigeria, and not, as now, an international boundary (see above paragraph 6.9).
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7.100 The relevant, final, part of the Second Schedule to the Order in C
ouncil reads:
"thence the River Mburi southwards to its junction with an unnamed strea
m about one
mile north of the point where the new Kumbo-Banyo road crosses the River
Mburi at
Nyan (alias Nton), the said point being about four miles south-east by
east of Muwe;
thence along this unnamed stream on a general true bearing of 120_ for o
ne and a half
miles to its source at a point on the new Kumbo-Banyo road, near the sou
rce of the River
Mfi; thence on a true bearing of 100_ for three and five-sixths miles al
ong the crest of the
mountains to the prominent peak which marks the Franco-British frontier.
"
A map extract of the area considered below is at Fig. 7.20.
7.101 This provision is defective in two respects.
(1) The phrase "to the prominent peak which marks the Franco-British f
rontier" is used in the 1946
Order in Council to define the junction with the boundary delimited by t
he Thomson-Marchand
Declaration. That reference in the Order in Council is defective since i
t is ambiguous as to the peak
being referred to.
(2) It is also defective in that, in the vicinity of Lip and Yang, it
does not fit local topography and it
disregards a locally agreed departure from the terms of the Order in Cou
ncil.
(a) "The prominent peak which marks the Franco-British frontier"
7.102 From the point at which the old Anglo-French boundary after Itang
Hill rejoined the watershed,
the boundary follows this watershed to the cairn on the Banyo-Kumbo-Bame
nda road (Article 61: see
paragraph 7.93 (1)-(6) above). That watershed (i.e. between the Ma
lam and M'Fi catchments) takes the
boundary from just south-west of Sanya (see paragraphs 7.95-7.96 above)
south to the cairn below
Hosere Nangban and then onwards further south: this means that the 1931
boundary continued to the
west of Itang Hill for 1,500 metres before turning south, and therefore
the area immediately west of
Itang Hill and south of Sanya was French (and is now Cameroonian) and
raises no question of the inter-
provincial boundary between British North and South Cameroons (see Fig.
7.18). Consequently, the
eastern limit of the Order in Council boundary must be well to the west
of Itang Hill, and accordingly
the "prominent peak which marks the Franco-British frontier" referred to
in the Order in Council cannot
be what Cameroon calls "Mount Kombon" (Itang Hill). Rather, that peak
is a reference to the easterly
summit of the ridge running towards Lip - i.e. Tonn Hill. That summit is on the old Franco-British
frontier, and satisfies the other measurements stipulated in the Order i
n Council.
7.103 In order to describe the boundary more coherently and accurately i
n this stretch up to its junction
with the Thomson-Marchand delimitation, it is necessary to consider the
alignment of the boundary in
the stretch immediately to the west: see next following paragraphs.
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(b) Lip and Yang
7.104 The earlier part of the Second Schedule to the Order in Council qu
oted in paragraph 7.100 above
reads:
" thence the River Mburi southwards to its junction with an unnamed stre
am about one
mile north of the point where the new Kumbo-Banyo road crosses the River
Mburi at
Nyan (alias Nton), the said point being about four miles south-east by
east of Muwe;
thence along this unnamed stream on a general true bearing of 120_ for o
ne and a half
miles to its source at a point on the new Kumbo-Banyo road, near the sou
rce of the River
Mfi;..."
7.105 This description of the boundary, in the area between the River Mb
uri in the west to a kilometre or
so before Tonn Hill in the east, does not make sense in relation to the
local topography. The Kumbo-
Banyo road does not cross the Mburi at Nyan (Yang on modern maps) but
at a point 1¼ miles north of
that village. Accepting this position as the crossing point, the stream
junction is ? miles not 1 mile to the
north and follows a valley on a true bearing of 133° not 120°, for
a distance of ? miles not 1¼ miles. At
this point one cannot be said to be 'near' the source of the Mfi, which
is 1½ miles away across the valley
of another tributary of the Mburi River.
7.106 The boundary in this area was the subject of uncertainty during th
e time of British administration
of Northern and Southern Cameroons. This was because, even apart from th
e deficiencies in the
delimitation, the boundary was not just an administrative boundary but w
as also taken as a tribal
boundary between the Mambilla people of the high plateau and the Yamba p
eople of the low plains to
the south. Correspondence (Annex NR 170) from an officer of the Southe
rn Cameroons Administration
to the District Officer, Gembu, Northern Cameroons, reveals that a meeti
ng was held at Yang on 13
August 1953 at which provincial officials and representatives of the loc
al communities were present (see
record of meeting at Annex NR 171).
7.107 That 1953 meeting was convened in order to deal with a local dispu
te. The record stated that
"The first essential was to establish where the Inter-Regional boundary
ran".
Reference was made to an enquiry held by Dr Jeffreys, then Senior Distri
ct Officer Bamenda, in about
1941, as a result of which he
"had fixed the boundary, recognised by Government between the two provin
ces" [i.e.
between North and South Cameroons]
No copies of the Order made by Dr Jeffreys were available, but
"Fortunately, a large cairn of stones on the main Bang-Yang path was acc
epted by both
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sides as one of the points in this boundary, the area in dispute lying t
o the west of this
cairn between the path and the River Manton (Gertegal)".
The meeting reached agreement on a line from Yang running to the west an
d north to the Manton River
(now known as the Mburi River). The record of the meeting states that:
"After much discussion both sides agreed that the Jeffreys Boundary ran
as follows:
From the Cairn on the Bang-Yang path in a westerly direction for about 6
00 yards to a
group of eight trees. From these trees in a northerly direction for abou
t 100 yards to the
head of the Mogog Stream. Following the Mogog Stream to its junction wit
h the Maven
Stream. Following the Maven Stream to the Manton River (Gertegal)."
Apart from settling the matter immediately in dispute, the record states
that this boundary ("the Jeffreys
Boundary") would determine the direction of tax payments and the jurisd
iction of the Courts.
7.108 The "Jeffreys Boundary" as confirmed by local agreement in 1953, q
ualifying the terms of the
Order in Council, was the inter-provincial boundary in force at the time
of Independence in 1960. Upon
Independence, it became the international boundary. The line prescribed
by Dr Jeffreys is still accepted
locally as the boundary.
7.109 Although that 1953 agreement as to the course of the boundary did
not determine its course to the
east of Yang, the cairn referred to, which is now destroyed but whose po
sition seems to be accepted by
both sides, lies on the watershed between the Cameroonian and Nigerian w
ater-systems. So too does the
final point of the inter-provincial (and now international) boundary d
elimited by the Order in Council
(Tonn Hill). The logical and realistic course, which is consistent wit
h the principle adopted generally
along the boundary, is to link these two points by following the watersh
ed throughout the intervening
distance.
7.110 The boundary as established by Dr Jeffreys from the cairn on the B
ang-Yang path and westwards
to the River Mburi (Manton), and the watershed boundary running eastwa
rds from that cairn to Tonn
Hill, are depicted in red on Fig. 7.20.
7.111 For the foregoing reasons Nigeria submits that the relevant provis
ions of the Nigeria (Protectorate
and Cameroons) Order in Council 1946, from the words "thence the River
Mburi southwards" to the
words "Franco-British frontier", should be interpreted as stipulating th
e line of the boundary in the
following terms -
"thence the median line of the Mburi (Manton) River southwards to its
confluence with
the Maven River, thence the median line of the Maven River eastwards to
its confluence
with the Mogog stream, thence the median line of the Mogog stream south-
eastwards to
its source, thence in a southerly direction for 100 metres and thence in
an easterly
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direction for about 550 metres to the site of a large cairn (now destro
yed) on the Lip-Yang
road. From this point, the boundary follows the watershed between the Mb
uri (Manton)
and its tributaries to the north and the Mbatye and Mfi and their tribut
aries to the south,
following the crest of the mountains to the most easterly summit on the
ridge known as
Tonn where it meets the Nigeria-Cameroon boundary as it is defined in Ar
ticle 61 of the
Thomson-Marchand Declaration of 1931."
(xiv) Sama River
7.112 The relevant provisions of the Order in Council read as follows:
".. the line follows the River Gamana upstream to the point where it is
joined by the River
Sama; thence up the River Sama to the point where it divides into two; t
hence a straight
line to the highest point of Tosso Mountain ... "
A map extract of the area considered below is at Fig. 7.21.
7.113 This provision is defective in that it is unclear at which point t
he Sama River "divides in two".
7.114 Cameroon, on its Map 21, takes as that point the confluence of the
Sama River with a tributary,
some 3 kms to the north of its confluence with a more southerly tributar
y which Nigeria believes to be
the correct point. The Order gives insufficient guidance on which to bas
e a clear choice. Nigeria believes
that the confluence with the southern tributary meets the criterion of "
divides in two" more clearly than
does the confluence preferred by Cameroon. The southern tributary itself
is three times as long, and
drains a much larger catchment. It also runs through a much more clearly
defined and larger valley on its
way to meet the Sama River. By contrast, the junction with the more nort
herly tributary preferred by
Cameroon is geographically nondescript, and had it been the junction int
ended by the drafters of the
Order in Council it would for that reason have had to have been describe
d with greater particularity
(such as "the first junction up the Sama River, approximately 3 kms fro
m the junction with the Gamana
River").
7.115 The difference between the two views affects land of an area of so
me 800 hectares.
7.116 For the foregoing reasons Nigeria submits that the relevant words
cited from the Order in Council
should be interpreted as stipulating that the boundary follows a line -
"thence up the Sama River to a point approximately 6.5 kilometres south
of its confluence
with the Gamana River, where it divides in two; ......."
(xv) BP64
7.117 The relevant provisions of the Nigeria (Protectorate and Cameroon
s) Order in Council provide
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that
"From boundary post 64 on the old Anglo-German frontier the line follows
the River
Gamana upstream ..."
A map extract of the area considered below is at Fig. 7.22.
7.118 This provision is defective in that it inaccurately describes the
starting point for this section of the
boundary, and gives no instruction as to how to proceed from the boundar
y post to the median line of the
Gamana River.
7.119 The old Anglo-German boundary ran northwards from BP66 through BP6
5 to BP64, which was
on the north side of the Gamana River. In providing that the boundary fo
llowed the Gamana River, the
Order in Council meant the median line of that river. On that basis it w
ould be illogical for the boundary
to be described in terms which take it northwards, up to BP64 on the nor
th bank (and thus overshooting
the median line of the Gamana River), and then notionally back south ag
ain to that median line. The
logical description of this point is that it is the point at which a str
aight line joining BP64 and BP65
intersects with the median line of the Gamana River. Nigeria notes that,
in the Table on p. 331 of its
Reply, Cameroon has accepted the possibility of the boundary established by t
he 1946 Order in Council
being described in this way.
7.120 For the foregoing reasons Nigeria submits that the words "From bou
ndary post 64 on the old
Anglo-German frontier" in the Schedule to the 1946 Order in Council are
to be understood as meaning
"From the point of intersection of a straight line joining BP64 and BP65
on the old Anglo-
German frontier and the median line of the Gamana River..."
B. Cameroon's failure correctly to apply the agreed delimitation
(xvi) Introduction
7.121 This section of this Rejoinder will focus on those boundary areas where the original delimitation
in the relevant instruments stands in no need of interpretation or clari
fication but where nevertheless
(1) Cameroon has criticised Nigeria's position and has itself asserted
a boundary inconsistent with that
delimitation, or
(2) Cameroon has delineated the boundary on maps submitted with its Memorial or Reply, or on other
official Cameroon maps, in a manner which is inconsistent with the origi
nal delimitation.
7.122 In Nigeria's Counter-Memorial examples of such boundary areas were identified as
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Kamale (NC-M paragraphs 19.7-19.9);
Budunga (NC-M paragraphs 19.10-19.13);
Mount Kombon (NC-M paragraphs 19.14);
Bissaula-Tosso (NC-M paragraphs 19.15-19.19).
7.123 In the following paragraphs of this section, Nigeria will deal wit
h the land boundary areas set out
below, which include some additional instances of Cameroon's failure to
apply the agreed delimitation
correctly:
The watershed from Ngossi to Roumsiki (paragraphs 7.124-7.131)
Turu (paragraphs 7.132-7.136)
Maduguva (paragraphs 7.137-7.144)
BP6-Wamni (paragraphs 7.145-7.164)
Maio Senche (paragraphs 7.165-7.168)
Tipsan (paragraphs 7.169-7.181)
The Mburi River to the old Franco-British frontier (paragraphs 7.182-7.
187)
Bissaula-Tosso (paragraphs 7.188-7.196)
Mberogo (paragraphs 7.197-7.204).
A locator key for these boundary areas is opposite page 398 below.
(xvii) The Watershed from Ngossi to Roumsiki
7.124 Articles 20 to 24 of the Thomson-Marchand Declaration provide that
, after following the River
Kohom to its source in Mount Ngossi (as provided for in Article 19), t
he boundary runs
"20. Thence on a line in a south-westerly direction following the tops o
f the mountain
range of Ngosi, leaving to France the parts of Ngosi situated on the eas
tern slopes, and to
England the parts situated on the western slopes, to a point situated be
tween the source of
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the River Zimunkara and the source of the River Devurua; the watershed s
o defined also
leaves the village of Bugelta to England and the village of Turu to Fran
ce.
21. Thence in a south-westerly direction, leaving the village of Dile on
the British side,
the village of Libam on the French side to the hill of Matakam.
22. Thence running due west to a point to the south of the village of Wi
sik where it turns
to the south on a line running along the watershed and passing by Mabas
on the French
side, after which it leaves Wula on the English side running south and b
ounded by
cultivated land to the east of the line of the watershed.
23. Thence passing Humunsi on the French side the boundary lies between
the mountains
of Jel and Kamale Mogode on the French side and running along the waters
hed.
24. Thence passing Humsiki, including the farmlands of the valley to the
west of the
village on the French side, the boundary crosses Mount Kuli."
Map extracts of the area considered below are at Figs. 7.23-7.27. [7.23; 7.24; 7.25; 7.26; 7.27]
7.125 Cameroon depicts much the greater part of this stretch of the boun
dary between Ngossi and
Roumsiki (formerly known as Humsiki) as following a course half way do
wn the Nigerian slopes of this
range of hills, running in some places as much as 2 kms to the west of t
he watershed (see Maps 6-7, in
RC Vol. II). This is contrary to Articles 20 to 24 of the Thomson-March
and Declaration, which clearly
delimit the boundary as following the watershed.
7.126 Nigeria has already drawn attention to this erroneous delineation
of the boundary by Cameroon in
relation to that part of the boundary covered by Articles 23 and 24 (NC
-M, paragraphs 19.7-19.9).
Cameroon has sought to justify its delineation by suggesting that the co
ncept of a watershed is complex
and difficult (RC, paragraphs 4.114-4.118). This is not true, at least
in the present context. A ready
definition of a watershed is to be found in the Oxford English Dictionar
y as
"The line separating the waters flowing into different river basins; a n
arrow elevated tract
of ground between two drainage areas,"
and in Le Grand Larousse de la langue française
"Ligne de partage des eaux, crête plus ou moins élevée à la rencontre de deux versants,
qui constitue la limite séparant deux bassins hydrographiques." 22
7.127 Although some international arbitral and judicial decisions have r
eferred to 'watershed' lines, none
appears to have essayed a general definition of that term. In the Temple of Preah Vihear case the Court
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approached questions negatively, noting that a watershed line "would not
necessarily, in any particular
locality, be the same as the line of the crest or the escarpment".23 The general sense of the term is
nevertheless abundantly clear, as indicating a line of separation betwee
n waters flowing to different
rivers, basins or seas. It is that sense of the term which was clearly i
ntended by those who drafted the
Thomson-Marchand Declaration when using it in e.g. Articles 20, 35, 46,
47, 51, 53, 54, 56, 57 and 59,
in all of which places it refers to a watershed between two river catchm
ents: this is what is meant by the
same term in relation to the area between Ngossi and Roumsiki.
7.128 The whole of this section of the boundary is farming land set on a
rolling plateau with occasional
hills. There is a motorable track constructed by Cameroon. For the most
part this track follows the
watershed. At times, it is forced to leave the watershed to negotiate it
s way around isolated hills or
mountain ridges. On some occasions it moves further into Cameroon, but o
n several occasions it
deviates on to the Nigerian side of the watershed, for example at Ngossi
(where there is also a
Cameroonian school on the Nigerian side of the watershed), Turu (where
there has been a serious
infringement as described in paragraph 7.132 et seq.), an unnamed hill north of Libam, another east of
Roumzou, Hosere Kama north of Roumsiki and Hosere Piouo north-east of th
at village. These areas are
shaded red on extract maps 7.23-7.27.
7.129 While the four latter sites of Cameroon trespass are relatively mi
nor, those at Ngossi and Turu are
not. At Ngossi, the Cameroon track deviates into Nigeria by a distance o
f some 400 metres, curving
around the western slopes of Ngossi mountain. There is no engineering re
ason for adopting a route on
this side of the mountain in preference to Cameroon's own side and in an
y case the road ends at a point
in Nigerian territory and does not return to the Cameroon side of the wa
tershed. In a further violation of
Nigerian sovereignty, Cameroon has built a school on the Nigerian side o
f the mountain and hoisted a
Cameroon flag. Turu is dealt with separately below at paragraphs 7.132 et seq.
7.130 The effect of Cameroon's failure to abide by the terms of the deli
mitation agreed in the Thomson-
Marchand Declaration in the area of Ngossi is that approximately 250 hec
tares of Nigerian land are
being occupied by Cameroon, whilst between Ngossi and Roumsiki a further
2,000 hectares are being
claimed, both violations being in direct contravention of the Declaratio
n.
7.131 For the foregoing reasons Nigeria submits that
(1) Cameroon's trespass across the watershed boundary between Ngossi a
nd Roumsiki is in conflict with
the delimitation of the boundary in Articles 20 to 24 of the Thomson-Mar
chand Declaration;
(2) those Articles correctly delimit the boundary in this area;
(3) the boundary delineated by Nigeria in red on Figs. 7.23-7.27 [7.23; 7.24; 7.25; 7.26; 7.27] is in
conformity with that delimitation.
(xviii) Turu
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7.132 Article 20 of the Thomson-Marchand Declaration provides that, afte
r following the River Kohom
to its source in Mount Ngossi (as provided for in Article 19), the bou
ndary runs
"Thence on a line in a south-westerly direction following the tops of th
e mountain range
of Ngosi, leaving to France the parts of Ngosi situated on the eastern s
lopes, and to
England the parts situated on the western slopes, to a point situated be
tween the source of
the River Zimunkara and the source of the River Devurua; the watershed s
o defined also
leaves the village of Bugelta to England and the village of Turu to Fran
ce."
7.133 The Cameroonian village of Turu has expanded over the years, and n
ow trespasses considerably
upon Nigerian territory across the boundary clearly defined in the Thoms
on-Marchand Declaration. The
extent of Cameroon's infringement is shaded red on the map extract at Fi
g. 7.28.
7.134 Article 20 attributed the village of Turu as it existed in 1931 to
France. It equally clearly
establishes the boundary at Turu as a line along the watershed. However,
Cameroon's Map 6 in RC Vol.
II shows the boundary in the vicinity of Turu as running up to some 500
metres to the west of the
watershed: i.e. it involves an incursion into Nigeria by that amount.
7.135 Turu is situated on a narrow strip of rolling plateau with the lan
d falling off quickly in altitude on
both sides of it. The watershed is quite easy to identify both on the gr
ound and on 1:50,000 maps. Turu
has expanded considerably since 1930, and has taken up much of the flatt
er land on the rolling plateau
irrespective of which side of the watershed it lies. There is now a seri
ous amount of building
development in Nigeria including Cameroonian homes, shops, a large Catho
lic church, a school, a clinic
and a playing field. It would appear that approximately 100 hectares of
land on Nigerian territory are
now being used by Cameroon. This is a serious intrusion - the most serio
us along the whole length of the
land boundary in terms of population and building works carried out by C
ameroon authorities.
7.136 For the foregoing reasons Nigeria submits that
(1) Cameroon's infringement of the watershed boundary both in respect
of its delineation of the
boundary on its map and in respect of the expansion of Turu on the groun
d, is in conflict with the
delimitation of the boundary in Article 20 of the Thomson-Marchand Decla
ration;
(2) that Article correctly delimits the boundary in this area;
(3) the boundary delineated by Nigeria in red on Fig. 7.28 is in conformity with that delimination.
(xix) Maduguva
7.137 Article 25 of the Thomson-Marchand Declaration provides that, afte
r crossing Mount Kuli (as
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provided for in Article 24), the boundary:
"Thence run[s] due south between Mukta (British) and Muti (French) t
he incorrect line of
the watershed shown by Moisel on his map being adhered to, leaving Bourh
a and Dihi on
the French side, Madogoba Gamdira on the British, Bugela or Bukula, Mado
udji,
Kadanahanga on the French, Ouda, Tua and Tsambourga on the British side,
and Buka on
the French side".
A map extract of the area considered below is at Fig. 7.29.
7.138 Cameroon, on Map 8 in RC, Vol. II, shows the boundary from Muti so
uthwards as following first
a series of streams some 4 kms to the west of Moisel's incorrect watersh
ed, and then a line which places
the village of Bourha Ouango in Cameroon and continues southwards at a d
istance of up to 3-4 kms to
the west of the main watershed for a further 10 kms beyond Bourha Ouango
, through a point 1 km east
of the now-abandoned site of the Nigerian village of Guri, to a point on
the main watershed between the
hills of Bidwa and Bana. The boundary thus delineated is contrary to Art
icle 25 of the Thomson-
Marchand Declaration, and follows an alignment up to 4 kilometres inside
Nigerian territory (cf.
paragraphs 7.45 et seq.).
7.139 As explained in paragraph 7.53 above, the "incorrect line of the w
atershed" ends at a point some 5
kms north of Bourha. From Muti to this end point, the boundary follows a
line coinciding with Moisel's
incorrect watershed. It does not follow a series of streams as suggested
by the Cameroon map.
7.140 South of the said end point, the boundary follows the correct line
of the main watershed for a
considerable distance, passing 1-2 kms west of Bourha, not 5-6 kms west
as on the Cameroon maps.
7.141 On Moisel's map C3, a village named Wamengo-Burha is shown at a po
sition approximately 5
kilometres WNW of Burha itself and approximately 3 kilometres WNW of the
boundary line. This is
clearly the village named as Bourha Ouango on the DOS map (Fig. 7.29) and, as shown on that map, 4
kilometres from Bourha on a similar bearing. Thus, the village of Bourha
Ouango is in Nigeria and not,
as the Cameroon map claims, in Cameroon.
7.142 Nigeria submits that in conformity with Article 25 the boundary pa
sses within 2 kms of the main
town of Bourha before turning south along the main watershed over Michya
Hill (whose correct position
is at latitude 10° 13' 45" N, longitude 13° 30' 00" E, and not at
the position shown on the Cameroon
24
map), and through Mangawa rock before curving round the south side of B
idwa Hill.
7.143 The villages of Maduguva, Mbidiwa, Gaddamayo and Guri (on its new
site, which is 1½ kms
south east of its old site) are all Nigerian and Nigerian farmers culti
vate the land right up to the border
which Nigeria asserts and have always done so.
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7.144 For the foregoing reasons Nigeria submits that
(1) the boundary delineated by Cameroon on its Map 8 in RC, Vol. II, i
s not in accordance with the
delimitation in Article 25 of the Thomson-Marchand Declaration;
(2) that Article (subject to paragraphs 7.45-7.59 above) correctly d
elimits the boundary in this area;
(3) the boundary delineated by Nigeria in red on Fig. 7.29 is in conformity with that delimitation.
(xx) BP6-Wamni
7.145 Articles 33 to 34 of the Thomson-Marchand Declaration provide that
, after following the course of
the Mao Hesso as far as "landmark No. 6 of the old British-German fronti
er" (as provided for in Article
32), the boundary continues as follows:
"33. Thence a line starting from Beacon 6, passing Beacon 7, finishing a
t the old Beacon 8.
34. Thence from this mark 8 placed on the left bank of the Mao Youwai, a
small stream flowing from the west and emptying itself into the Mayo For
o,
in a straight line running towards the south-west and reaching the summi
t of
Wamni Range, a very prominent peak to the north of a chain of mountains
extending towards the Alantika Mountains, and situated to the east of th
e
old frontier mark No. 10."
Map extracts of the area considered below are at Figs. 7.30 and 7.31.
7.146 Cameroon, in Maps 10 and 11 in RC, Vol. II, delineates the boundar
y in the area of Boundary
Pillars (BPs) Nos. 6, 7 and 8 by a line which leaves the Maio Hesso ab
out 4½ kms north of Beka and
then proceeds in a direct line to the summit of a prominent range of hil
ls which rise some 300m above
the surrounding plains. It then descends into the pass through the hills
near the summit of that pass
before climbing in a series of short straight sectors to the summit of t
he Wamni Range. This line is
contrary to the line of the boundary as delimited by Articles 33 and 34.
7.147 Thus, for 16 kms, this line delineated by Cameroon trespasses by d
istances of up to 2 kms across
the boundary established by the delimitation in Articles 33 and 34, and
thus involves a wrongful
incursion into Nigerian territory extending to some 2,000 hectares. The
correct line of the boundary in
this area, as delimited by the Thomson-Marchand Declaration, is delineat
ed on Figs. 7.30 and 7.31.
7.148 The boundary pillars referred to in Articles 33 and 34 are on what
is known as the Yola Arc
established by the Anglo-German Agreement of 19 March 1906 (see NC-M, p
aragraph 19.58), but
unfortunately no record of their positions has been traced.
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7.149 As regards BP6, that pillar no longer exists. Its position must therefore be deduced f
rom relevant
surrounding circumstances.
7.150 Articles 32 to 34 do not describe the location of BP6. They simply
refer to it as the mark of that
number on "the old British-German frontier". That is a reference back to
the Anglo-German Treaty of 19
March 1906, Annex I, pursuant to which BP6 was erected. In describing th
e Yola Arc, paragraph 3 of
Annex I of that Treaty provides for BP6 to be about 3 kms from Beka, and
accordingly Articles 33 and
34 of the Thomson-Marchand Declaration require that the boundary delimit
ed in them should pass
through a point some 3 kms from Beka. However, on Cameroonian Map 10 (R
C, Vol. II) the point of
departure of the boundary from the left bank of the Maio Hesso is 4.2 km
s north-west of Beka: that is
manifestly not in accordance with the requirement for BP6 under the 1906
Treaty, and thus also not in
accordance with Articles 33 and 34 of the Declaration.
7.151 On the foregoing basis, and as explained in NC-M, paragraphs 19.11
-19.12, Nigeria puts the
location of BP6 at 09_ 04' 39" N latitude, 12_ 53' 21" E longitude. This
is in line with the position of
BP6 on Moisel's map (Fig. 7.32) (which Cameroon's position is not). It is also consistent with the
requirements of the Anglo-German Treaty and thus of Articles 33 and 34 o
f the Thompson-Marchand
Declaration. Cameroon's objections to this location (RC, paragraphs 4.1
24-4.125) are unfounded.
7.152 As to BP7, the original beacon no longer exists (although there appear to be tra
ces of a mark at the
location identified by Nigeria as the location of BP7). Again, therefor
e, its position must be deduced
from relevant surrounding circumstances.
7.153 Article 33 does not describe the location of BP7, but again simply
refers to it as "Beacon 7". In its
context, this is clearly a reference to the pillar of that number on "th
e old British-German frontier",
which is a reference back to the Anglo-German Treaty of 19 March 1906, p
ursuant to which BP7 was
erected. That Treaty (at Annex I, paragraph 4) provided that BP7 was l
ocated at
"a conspicuous rock, on a slight eminence on the road from Gurin to Kari
n. This rock has
a boundary mark (No.7) "D/B" (Deutsch-British) cut into it".
7.154 Cameroon does not indicate any location for BP7.
7.155 In its Counter-Memorial (NC-M, paragraph 19.10) Nigeria located BP7 at a low hill (and the o
nly
low hill in the vicinity) - that is, the "slight eminence" referred to
in the 1906 Treaty; it is also on a
straight line between Gurin and Karin (although the modern DOS map does
not show a road between the
two towns). This is consistent with the requirements described in the A
nglo-German Treaty.
7.156 Cameroon has suggested (RC, paragraph 4.126) that, because a cai
rn of stones has been erected at
the site, this in some way invalidates the position claimed because the
original mark was an arrow
chiselled in the rock. This is not so. It is common practice for surveyo
rs to assist the identification of the
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location of ground marks, such as that described at Annex I of the 1906
Treaty, by building a cairn of
stones over the mark.
7.157 As to BP8, the original post no longer exists. Again, therefore, its position mus
t be deduced from
relevant surrounding circumstances.
7.158 Article 33 does not describe the location of BP8, but again simply
refers to it as "the old Beacon
8". In its context, this is clearly a reference to the post of that numb
er on "the old British-German
frontier" mentioned in Article 32, which is a reference back to the Angl
o-German Treaty of 19 March
1906, pursuant to Annex I of which BP8 was erected. That Treaty provided
that BP8 was located
"at the entrance to the pass through the Karin Hills".
Article 34 of the Thomson-Marchand Declaration added the description tha
t
"this mark 8 [was] placed on the left bank of the Mao Youwai".
7.159 The estimation of where exactly the entrance to a pass lies is to
some extent subjective, but even
on the most generous (from Cameroon's point of view) interpretation of
the position of the entrance,
Cameroon has placed BP8 about 1 km inside the pass. Cameroon's placing of BP8 is therefore contrary
to the terms of the delimitation established by the relevant provisions
of the Thomson-Marchand
Declaration.
7.160 The direct or indirect requirements of the Thomson-Marchand Declar
ation are that BP8 should be
at the entrance to the pass through the Karin Hills and should be on the
left bank of the Mao Youwai.
Nigeria, unlike Cameroon, places BP8 at just such a location, which conf
orms with the position for BP8
shown on Moisel's map D3 (an extract of the relevant section is at Fig.
7.32). The relief of the Tomni
Range can be clearly seen on Moisel's map lying to the west of the line
joining BP7 and BP8: this is also
the case with Nigeria's delineation of the boundary, in contrast to Came
roon's delineation which passes
straight through the Tomni Range.
7.161 As to the boundary beyond BP8, Article 34 requires that the boundary must run "from this mark
8 ... in a straight line running towards the south-west and reaching the
summit of the Wamni Range...".
The line delineated on Cameroon's maps does not, while the line delineated on Nigeria's map does,
follow a straight line south-westwards as required by Article 34.
7.162 In its Counter-Memorial Nigeria challenged the correctness of Cameroon's line on the basis that
it
was not "a straight line running towards the south-west" (NC-M, paragra
ph 19.12). Cameroon dismisses
this challenge as unfounded (RC, paragraph 4.128). Cameroon's position
is astonishing: a glance at
Cameroon's map shows a line which between BP8 and the summit of the Wamn
i Range is demonstrably
not a straight line.
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7.163 Since Cameroon has chosen to deny the clear evidence provided by e
ye-sight, Nigeria must
further specify its statement that the Cameroon line is not a straight l
ine. The line from Cameroon's
(incorrect) position for BP8 in the Karin Pass to the summit of the Wa
mni Range as delineated on Map
11 (RC, Vol. II) has five segments:
a line approximately 2,000m long on a bearing of 175_ (i.e. 5_ east of south);
a line approximately 800m long on a bearing of 220_;
a line approximately 1,000m long on a bearing of 180_ (i.e. due south)
;
a line approximately 600m long on a bearing of 190_;
a line approximately 1,400m long on a bearing of 215_.
These measurements are taken from the Cameroon map in question and there
is no question of any
distortion occurring because of enlargement, as suggested by Cameroon (
RC, paragraph 4.128). It is
apparent from the measurements of each of the five segments that Cameroo
n's line cannot possibly be
described as "straight", nor can it be claimed to be running towards the
south-west, both of which are
requirements of Article 34.
7.164 For the foregoing reasons Nigeria submits that
(1) the boundary delineated by Cameroon on its Maps 10 and 11 in RC, V
ol. II, is not in accordance
with Articles 33 and 34 of the Thomson-Marchand Declaration and impinges
significantly upon
Nigerian territory;
(2) those Articles correctly delimit the boundary in this area;
(3) the boundary delineated by Nigeria in red on Figs. 7.30 and 7.31 is in conformity with that
delimitation.
(xxi) Maio Senche
7.165 Article 35 of the Thomson-Marchand Declaration provides that, afte
r reaching the summit of the
Wamni Range (as provided for in Article 34),
"Thence the frontier follows the watershed from the Mao Wari to the west
and from the
Mao Faro to the east, where it rejoins the Alantika Range, [thence] it f
ollows the line of
the watershed of the Benue to the north-west and of the Faro to the sout
h-east as far as the
south peak of the Alantika Mountains to a point 2 kilometres to the nort
h of the source of
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the River Mali."
A map extract of the area considered below is at Fig. 7.33.
7.166 On its Map 12 (RC, Vol. II) Cameroon delineates the boundary in
the Alantika Mountains, in the
vicinity of longitude 12_ 35' E, by a line which departs from the waters
hed for a distance of 8 kms, and
joins a major tributary of a Nigerian river, the Maio Senche, some 2.5 k
ms inside Nigeria, putting the
village of Batou into Cameroon.
7.167 Article 35 could not be clearer in requiring the boundary to follo
w the watershed. Cameroon's
boundary line is thus in clear contravention of the requirements of that
Article. Its erroneous departure
from the watershed involves a significant tresspass upon Nigerian territ
ory, involving some 1,200
hectares.
7.168 For the foregoing reasons Nigeria submits that
(1) the boundary delineated by Cameroon on its Map 12 in RC, Vol. II,
is not in accordance with Article
35 of the Thomson-Marchand Declaration, and impinges significantly upon
Nigerian territory;
(2) that Article (subject to paragraphs 7.70-7.76 above) correctly d
elimits the boundary;
(3) the boundary delineated by Nigeria in red on Fig. 7.33 is in conformity with that delimitation.
(xxii) Tipsan
7.169 In its Memorial (MC, paragraph 6.90 et seq.) Cameroon claimed that Nigeria was occupying
Cameroon territory when it set up an Immigration Post to the west of the
Tipsan River, opposite
Kontcha. In its oral presentation of its Fifth Preliminary Objection (CR 98/1, pp. 24-25; CR 98/5, p. 42),
Nigeria explained that Cameroon's allegation was wholly misconceived and
was based on a patently
incorrect understanding of the delimitation effected by Articles 40-41 o
f the Thomson-Marchand
Declaration. In its oral response Cameroon reaffirmed its allegations, r
eferring in doing so to the same
geographical features as Nigeria has done (although drawing different c
onclusions from them). 25 Given
Cameroon's position, the Court, in rejecting Nigeria's Fifth Preliminary Objection, concluded that there
was a dispute at Tipsan - the only location along the entire 1,800 km la
nd boundary at which the Court
(on the basis of the limited evidence and argument before the Court at
that stage) found there to have
been a dispute as to the course of the boundary (above, paragraph 6.5(
1)).
7.170 Cameroon misled the Court. This is now apparent from Cameroon's Reply. It is necessary for
Nigeria to explain in some detail what the true position is as regards t
he course of the boundary in this
area.
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7.171 Articles 40, 41 and 42 of the Thomson-Marchand Declaration provide
that, after reaching the
River Kolob (as provided for in Article 39), the boundary runs
"40. Thence along a line parallel to the Bare Fort Lamy Track and 2 kilo
metres to the west
of this track, which remains in French territory.
41. Thence a line parallel to and distant 2 kilometres to the west from
this road (which is
approximately that marked Faulborn, January 1908, on Moisel's map) to a
point on the
Maio Tipsal (Tiba, Tibsat or Tussa on Moisel's map) 2 kilometres to th
e south-west of the
point at which the road crosses said Maio Tipsal.
42. Thence the course of the Maio Tipsal upstream to its confluence with
the Maio Mafu,
flowing from the west, to a point some 12 kilometres to the south-west o
f Kwancha town."
An extract map of the area considered below is at Fig. 7.34.
7.172 Nigeria has already explained in the Counter-Memorial the meaning of these provisions, and how
they relate to the topography of the area (NC-M, paragraphs 19.72-19.76
). The relevant area was shown
on the DOS map sheets comprising Map 73 in Nigeria's map Atlas which is reproduced here (with minor
modifications) at Fig. 7.34. The main elements of Nigeria's explanation were -
(1) the various features referred to in the delimitation in Articles 4
1 and 42 of the Thomson-Marchand
Declaration (including the road there referred to) were clearly visibl
e on Map 73, and the extract from
Moisel's map at Map 74 of the Atlas clearly showed the track marked "Faulborn Jan. 08" (NC-M,
paragraph 19.75);
(2) the point at which the road crossed the River Tipsan was marked on
Map 73, as were the location on
the River Tipsan 2 kms to the south-west of that point, and the upstream
course of the River Tipsan
(ibid.);
(3) Cameroon was confused over the geographical relationship between T
ipsan and the Cameroonian
town of Kontcha some 4 kms away, and over the location of the boundary (
which runs between them)
(NC-M, paragraph 19.76);
(4) the clear terms of the Thomson-Marchand Declaration showed that th
e location for the boundary
asserted by Cameroon had no basis in those terms, and the location of th
e Nigerian immigration post at
Tipsan was clearly on the Nigerian side of the River Tipsan which is exp
ressly stated to be the boundary
(ibid.).
7.173 In originally alleging that Nigeria was occupying Cameroon territo
ry when setting up an
Immigration Post to the west of the Tipsan River, Cameroon appears to ha
ve based itself on a belief that
German officials had marked the border with stones several kilometres to
the west of Kontcha (MC,
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paragraph 6.93). The delimitation in the Thomson-Marchand Declaration m
akes no mention of any such
stones in this area (although where they are relevant in other areas th
e Declaration does mention stones
or cairns). Moreover, Cameroon nowhere explained what role German offic
ials (who left the country
before the end of the First World War in 1918) could have played in dem
arcating a boundary negotiated
between British and French officials in the period 1919-1931. On this is
sue Cameroon is completely
misguided.
7.174 In any event, the Thomson-Marchand Declaration is absolutely expli
cit in relation to this
boundary. It refers to the "Maio Tipsal (Tiba, Tibsat or Tussa on Moise
l's map)" as the boundary. That
26
river is readily identifiable on Moisel's map (relevant extract at Fig.
.35 ). There is a wealth of
supporting evidence to show that this river is identical with that refer
red to today as the Maio Tipsan - a
fact which Cameroon has not disputed. Furthermore, Cameroon's own Map 14
(RC, Vol. II) shows the
boundary as the Maio Tipsan: Cameroon thus now, belatedly, admits what N
igeria has all along
maintained and what Cameroon has hitherto denied (including in earlier
written and oral submissions to
the Court).
7.175 When during the Preliminary Objections phase Nigeria challenged Cameroon's allegations,
Cameroon responded by claiming that the Nigerian road from Toungo to Tip
san was the track from Baré
to Fort Lamy mentioned in Article 40 of the Thomson-Marchand Declaration
(CR 98/6, p. 38). This
argument was patently absurd. There is no evidence to support it (and C
ameroon cited no evidence). The
alignment of the Toungo-Tipsan-Kontcha road means that it could not have
been the Baré-Fort Lamy
track, since that alignment would not fit with the terms of Article 40.
The locations of Baré (close to
Nkongsamba, a railhead in roughly the same latitude as Calabar) and For
t Lamy (now N'Djamena,
capital of Chad) are known and are shown on Fig. 7.36: the general direction of a track running between
them would run through Kontcha at right angles to the Toungo-Tipsan-Kont
cha road.
7.176 In its Counter-Memorial Nigeria drew attention to the many errors in Cameroon's arguments on
this matter (NC-M, paragraphs 19.73-19.76). In its Reply Cameroon has dealt with Tipsan in two places,
paragraphs 4.95-4.99 and paragraphs 11.218-11.238. There are serious inc
onsistencies in Cameroon's
treatment of the matter in its Reply. These simply underline the confusion in Cameroon's position, and
the carelessness (or worse) with which it is willing to present its pl
eadings to the Court.
7.177 In explaining its position in its Counter-Memorial Nigeria had asserted that the Immigration Post
which it had set up, and which was central to Cameroon's allegations tha
t Nigeria had trespassed upon
Cameroonian territory, was well within Nigerian territory, being, as was
clear from Map 73 in Nigeria's
Map Atlas, some 600m to the west of the boundary at the Maio Tipsan. Cameroon now
accepts that that
27
Immigration Post is "indiscutablement situé en territoire nigérien
comme on le voit sur cette carte"
(RC, paragraph 4.99).
7.178 Cameroon seeks to extricate itself from the untenable position int
o which it had placed itself by its
previous incorrect arguments by going on to suggest that there is anothe
r settlement called Tipsan which
is situated on the Cameroon side of the line of delimitation (by which
Nigeria assumes is meant the
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Maio Tipsan, although Cameroon does not expressly say so: but, as explai
ned, the Thomson-Marchand
Declaration is explicit on the matter and Cameroon cannot be heard to de
ny it). This 'other' Tipsan is
said to be 3 kms from Kontcha. There is no evidence on any maps submitte
d to the Court of any 'other'
Tipsan, not even maps submitted by Cameroon with its Reply. Moreover, it is to be recalled (above,
paragraph 7.169) that in the hearings on Nigeria's Preliminary Objections, Cameroon's arguments about
Tipsan were based entirely on the geographical features of the maps subm
itted by both Parties, and none
of those arguments or maps - in particular, not Cameroon's - made any me
ntion of any alleged 'other'
Tipsan. The only Nigerian Immigration post - the location of which lies
at the heart of Cameroon's
complaint - is at the village of Tipsan. Tipsan village consists of hous
es and Nigerian government
buildings in the immediate vicinity of the Nigerian Immigration Post, al
l situated to the west of the
boundary running along the Maio Tipsan. Cameroon's claim (unsubstantiat
ed by any evidence) that a
28
second Immigration Post is being built (RC, paragraph 4.99) is ludicro
us.
7.179 In spite of the acceptance by Cameroon in paragraph 4.99 of the Reply that the Nigerian
Immigration Post at Tipsan is in Nigerian territory, Cameroon goes on to
make conflicting claims as to
the location of the boundary in Chapter 11 of its Reply. Thus Cameroon in one place (RC, paragraph
11.225) suggests that the boundary is 4 kms from Kontcha on a stream kn
own as the Maio Djigawal
(which, however, is nowhere mentioned in the Thomson-Marchand Declarati
on), while in the very next
paragraph it suggests that it is 9 kms from Kontcha (RC, paragraph 11.2
26). Cameroon has produced no
maps to clarify the location of its claimed boundary, nor has Cameroon e
xplained anywhere why its
claimed boundary (wherever it lies) takes precedence over the delimita
tion given in the Thomson-
Marchand Declaration and the depiction on RC Vol. II, Map 14.
7.180 There is one final matter which Nigeria wishes to clarify, concern
ing the accuracy of maps used
by the Parties. Cameroon has pointed out (RC, paragraph 4.98) that the
latest editions of the Cameroon
1:200,000 maps have seen the removal of the error (involving a displace
ment at the edge of a map sheet)
in the depiction of the international boundary which was evident on the
earlier editions used by Nigeria
for its Counter-Memorial. Nigeria welcomes this correction of the Cameroonian error referred to.
Cameroon also, however, describes Nigeria's Map 73 as "fallacious" (RC,
paragraph 4.96). Nigeria
rejects this description. Whether the map is described as being "extract
ed from sheet 238SW and
258NW" (as Nigeria described it) or as a "partial assembly" (as Camer
oon would prefer) is a matter of
choice of language. Advances in technology allow the more convenient com
bination of map sheets
which in earlier times would have had to be presented separately. The or
iginal separation of map sheets
is in any event a function of the sheet sizes traditionally used for map
s, and does not affect the substance
of the topography depicted on them. There is obvious convenience for the
purposes of the present
proceedings in being able to refer to a single map made up of adjacent p
arts of separate original sheets;
that this had been done was made clear by Nigeria's terminology.
7.181 For the foregoing reasons Nigeria submits that
(1) the boundary in the region of Tipsan is correctly delimited by Art
icles 40-42 of the Thomson-
Marchand Declaration;
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(2) the boundary delineated by Nigeria in red on Fig. 7.34 is in conformity with that delimitation.
(xxiii) The Mburi River to the old Franco-British frontier
7.182 The relevant part of the Second Schedule to the Nigeria (Protecto
rate and Cameroons) Order in
Council 1946, after delimiting the boundary as following the River Donga
to its junction with the River
Mburi, provides that the boundary follows -
"thence the River Mburi southwards to its junction with an unnamed strea
m about one
mile north of the point where the new Kumbo-Banyo road crosses the River
Mburi at
Nyan (alias Nton), the said point being about four miles south-east by
east of Muwe;
thence along this unnamed stream on a general true bearing of 120_ for o
ne and a half
miles to its source at a point on the new Kumbo-Banyo road, near the sou
rce of the River
Mfi; thence on a true bearing of 100_ for three and five-sixths miles al
ong the crest of the
mountains to the prominent peak which marks the Franco-British frontier.
"
A map extract of the area considered below is at Fig. 7.37.
7.183 The deficiencies in this part of the boundary delimitation, becaus
e of its ambiguity and its
omission to reflect an agreed variation of the Order in Council, have be
en dealt with in paragraphs 7.99
et seq. above.
7.184 Cameroon shows what it claims to be the boundary in the vicinity o
f the Maven River, Lip and
Mount Kombon on Map 18 (RC, Vol. II). This claimed boundary follows th
e Maven River upstream
from its confluence with the River Mburi (Manton) for a distance of ab
out 6 kms, when it then follows
the Ntum tributary passing to the north of Bang: from the source of the
Ntum it follows a watershed to
the vicinity of Tamnyar. This claimed boundary is depicted in blue on Fi
g. 7.37.
7.185 Cameroon's claimed boundary meets none of the criteria set out in
the 1946 Order in Council, and
does not take account of the agreement reached in 1953 on the basis of D
r Jeffreys' decision in 1941, and
ignores the present day situation. Moreover, Cameroon's claimed line tre
spasses across the true line of
the boundary and encroaches on to Nigeria's territory. More specifically
,
(1) it follows a tributary of the Maven stream for 5 kilometres (3 mi
les) as far as Bang where it appears
to switch to following the road for a further 3 kilometres to the waters
hed north of Sanya village: there is
no mention of a stream of such a length nor of a requirement to follow a
road in the 1946 Order in
Council;
(2) at no stage before reaching the watershed which Cameroon appears t
o claim to be that referred to in
Article 61 of the Thomson-Marchand Declaration does the Cameroon line fo
llow either a true bearing of
100° or a "crest of the mountains" as required by the 1946 Order in C
ouncil: nor does it meet that
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watershed at a prominent peak, but rather at a saddle;
(3) it leaves the well-established Nigerian settlement of Bang in Came
roon. Bang has never been part of
Cameroon. Indeed the DOS 1:50,000 map issued in 1965 annotates it as a s
ub-district headquarters
within the Nigerian Administration. Its inhabitants voted on the Nigeria
n side in the 1959 and the 1961
plebiscites held in Northern Cameroons;
(4) at no point does the line chosen by Cameroon pass through any of t
he peaks which would be
described as prominent when viewed from the cairn at the foot of Hosere
Nangban as required by Article
61 of the Thomson-Marchand Declaration.
7.186 The line delimited in the Order in Council was itself varied in pa
rt by agreement in 1953 as
described in paragraph 7.106 et seq above. This line is shown in red on Fig. 7.37.
7.187 For the foregoing reasons Nigeria submits that
(1) the boundary delineated by Cameroon on its Map 18 (RC, Vol. II)
in the sector between Mount
Kombon and the Mburi River is not in accordance with the provisions of t
he Second Schedule to the
1946 Order in Council quoted in paragraph 7.182 above as varied by agree
ment in 1953 in the manner
described in paragraph 7.107 above;
(2) those provisions, as so varied (and subject to paragraphs 7.99-7.
111 above), correctly delimit the
boundary in this area;
(3) the boundary delineated by Nigeria in red on Fig. 7.37 is in conformity with that delimitation.
(xxiv) Bissaula-Tosso
7.188 The relevant part of the Second Schedule to the Nigeria (Protecto
rate and Cameroons) Order in
Council 1946 provides that, after the highest point of Tosso Mountain, t
he boundary runs -
"... in a straight line eastwards to a point on the main Kentu-Bamenda r
oad where it is
crossed by an unnamed tributary of the River Akbang (Heboro on Sheet E
of Moisel's map
on Scale 1/300,000) - the said point being marked by a cairn; thence do
wn the stream to
its junction with the River Akbang; thence the River Akbang to its junct
ion with the River
Donga; thence the River Donga to its junction with the River Mburi;..."
A map extract of the area considered below is at Fig. 7.38.
7.189 The tributary of the River Akbang in the area now in question is k
nown as the Akong. This
stream, flowing northwards from the point at which it crosses the Kentu-
Bamenda road is joined by a
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tributary flowing from the north before turning to the east to flow into
the Akbang River. In
Cameroonian maps the boundary is shown as following the northerly tribut
ary, and then taking the
source of that tributary as the starting point for the straight line to
Tosso Mountain. The boundary so
delineated is not in conformity with the delimitation in the Order in Co
uncil.
7.190 The effect of Cameroon's claimed boundary is to assert as being Ca
meroonian a large slice of
Nigerian territory, some 30 kms long, and some 5 kms wide at its widest
point: the area involved is
approximately 7,500 hectares.
7.191 As Nigeria explained in its Counter-Memorial, the Order in Council requires that the "unnamed
tributary of the River Akbang" must at some time cross the main Kentu-Ba
menda road. Nigeria showed
that the northern tributary did not cross that road, whereas the souther
n tributary did (NC-M paragraphs
19.16-19.19). Moreover, Nigeria recorded that it had located the cairn
referred to, at the position shown
on its map (NC-M Atlas map 64).
7.192 In its Reply (RC, paragraphs 4.133-4.137) Cameroon disputes the attribution of the
name
"Akbang" to the lower course of the two streams in question (after they
converge); Cameroon also draws
attention to the name Akbang on another tributary of the same river syst
em, some 4 kilometres to the
east of the area in dispute, which tributary flows from the south and th
e course of which is wholly within
Cameroon. Cameroon supports this argument with its Map 20 (RC, Vol. II)
. Cameroon asserts (RC
paragraph 4.136) that the course of the River Akbang as flowing in a "n
orth-south" direction to the east
of 10_ 30' E longitude "leads to a very different interpretation of the
boundary line".
7.193 Cameroon does not, however, in any way explain this "different int
erpretation". In any event,
however, the point is irrelevant. What is at issue is the course of the
boundary from Mount Tosso to that
point on a tributary of the River Akbang at which it is crossed by the K
entu-Bamenda road. The course
of the River Akbang downstream from the place where the northerly and so
utherly tributaries merge is
irrelevant; these two tributaries in the vicinity of the Kentu-Bamenda r
oad are still tributaries of the
River Akbang whatever course that river takes upstream, and it is the se
lection of the correct tributary
from these two which is the key to the correct alignment of the boundary
. As Nigeria has stated, it is
only the southern tributary which crosses the Kentu-Bamenda road and therefo
re this is the tributary to
which the Order in Council refers.
7.194 Cameroon attempts to counter the Nigerian argument that the northe
rn tributary does not cross the
Kentu-Bamenda road as required by the Order in Council by using a map at
a scale of 1:500,000
produced by Nigeria in 1953 (RC, Map R16). This purports to show a tri
butary flowing from the north
and cutting the Kentu-Bamenda road. This map is, of course, on a scale f
rom which it is impossible to
draw precise conclusions of the kind now in question. It was constructed
using the only source of
geographical information available at the time, i.e. Moisel's map of 190
8. If the courses of rivers in the
area, and especially the Akbang, which are shown on this 1953 map are co
mpared with those shown on
the modern map supplied by Cameroon (Map 20, RC Vol. II), it becomes o
bvious that the 1953 map is
very inaccurate in this respect: for example, the point at which the Akb
ang meets the Donga would, if
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accepted as correct, lead to a considerable loss of territory by Cameroo
n. Furthermore, the depiction of
the Cameroonian section of the Kentu-Bamenda 'road' on the map as a moto
rable track in 1953 is wrong,
since it was in fact only a footpath as late as 1958; this reinforces th
e fact that this map is an inaccurate
representation of the area.
7.195 Cameroon offers no further modern evidence that the northern tribu
tary crosses the 'road'. Nor
does it make any attempt to suggest that there is a cairn in the vicinit
y of the headwaters of that northern
tributary. As regards Nigeria's location of the cairn, Cameroon criticis
ed Nigeria for not displaying GPS
co-ordinates for the cairn to the Court. Coming from a Party which has b
een singularly reticent about
details on practically all aspects of the land boundary, this is a point
of remarkable pettiness.
Nonetheless Nigeria can provide the co-ordinates for the cairn which are
latitude 6° 52.4' N, longitude
10° 29.8' E (Minna Datum). These co-ordinates have a precision of +
/- 0.1' (or 180 metres).
7.196 For the foregoing reasons Nigeria submits that
(1) the boundary delineated by Cameroon on its maps in the sector betw
een Mount Tosso and the point
on the Kentu-Bamenda road where it crosses the tributary of the River Ak
bang is not in accordance with
the provisions of the Second Schedule to the 1946 Order in Council quote
d in paragraph 7.188 above;
(2) those provisions correctly delimit the boundary in this area;
(3) in particular, the "unnamed tributary" referred to in the Order in
Council is the southerly of the two
tributaries, being the only tributary which crosses the Kentu-Bamenda ro
ad;
(4) the boundary delineated by Nigeria in red on Fig. 7.38 is in conformity with that delimitation.
(xxv) Mberogo
7.197 The relevant part of the Second Schedule to the Nigeria (Protecto
rate and Cameroons) Order in
Council 1946 provides that, from boundary post 64 on the old Anglo-Germa
n frontier, the boundary -
"follows the River Gamana upstream to the point where it is joined by th
e River Sama;
thence up the River Sama to the point where it divides into two; thence
a straight line to
the highest point of Tosso Mountain;..."
A map extract of the area considered below is at Fig 7.39.
29
7.198 Cameroon has made incursions into the Nigerian village of Mberogo,
and these are the subject
of State responsibility claims set out in Nigeria's Counter-Memorial and Cameroon's Reply (NC-M,
paragraph 25.58 et seq; RC, paragraphs 12.35-12.38). The delimitation of the boundary in this
area is
clear: it is shown on Fig. 7.39. However, in responding to Nigeria's assertions of Cameroon incursions
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into Mberogo and Tosso, Cameroon has introduced the thought that there a
re two villages with each of
these names, one of each pair being in Nigeria and one in Cameroon (RC,
paragraphs 12.36-12.37); and
Cameroon has provided in Map R27 an indication of where the two alleged
Cameroonian versions of
those villages are located.
7.199 Nigeria is very sceptical of Cameroon's recent assertion of the ex
istence of two Cameroonian
villages with names similar to those on the Nigerian side of the border.
Nigeria notes that in no other
maps available to Nigeria or produced by Cameroon are two villages of Mb
erogo and Tosso recorded as
being located in this area of Cameroon. Similarly, the local inhabitants
on the Nigerian side of the
boundary have no knowledge of any Cameroonian villages of those names in
the vicinity.
7.200 Moreover, Nigeria notes that the location at which Cameroon has on
its Map 27 depicted its
alleged village of Tosso is in fact high on Mount Tosso at an elevation
of 1,070 metres and perched on
the side of a sharp conical summit of the mountain whose peak is at 1,14
0 metres. There is no evidence
of any local permanent water supply (which would present great difficul
ties in such a location), or of
any nearby land on which to grow crops. Altogether, this supposed locati
on of a Cameroonian Tosso is
highly improbable. That there are two villages named Tosso in the area i
s not disputed. These are
sometimes referred to as Tosso North and Tosso South. The former is on t
he north bank of the Gamana
River some 2.7 kilometres from Mberogo. The latter is to the south of th
e Gamana River and some 600
metres south-east of Mberogo. Both are in Nigeria (see Fig. 7.39).
7.201 As to Mberogo, members of the Nigerian Legal Team visited the vill
age in March 2000 and heard
at first hand from the villagers their accounts of incursions by Cameroo
nian officials and gendarmes:
further details are given below, in Chapter 18, in connection with Niger
ia's counterclaims. But of more
direct interest in the present context is an account provided by Cameroo
n of a visit which they claim was
made to the Cameroon village of Mberogo (Annex RC 224). At p. 1790 the
account tells of a question
asked by
"Panso Kimalaki, a Nigerian who identified himself as a teacher in Toso,
a Nigerian
village located at about one kilometre from Mbelogo at the extreme bound
ary of Nigeria
and Cameroon." 30
The record continues:
"He advanced the idea that most of the children of Mvelogo attend school
in Tosso and so
automatically Mbelogo was in Nigerian soil. He went further to say that
there is no map
that indicates the boundary to be on the river. In response to this, the
principal of G.H.S.
Furu-Awa, Mr Achuo John asked Mr. Panso who is so versed with boundaries
on maps to
tell the assembly where the boundary between Cameroon and Nigeria is fou
nd. Here, our
ill-informed speaker was tongue-tight as he found it very difficult to e
xpress him self in
English or pidgin. Intervening here, the Sub-Prefect warned him very ser
iously to stop
intoxicating the people of Mbelogo with wrong information. He then calle
d on the
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villagers to be very careful with this type of individuals who came into
down-play over
them. Speaking further, the Sub-Prefect called the people's attention to
the fact that there
are so many Nigerians who study in Cameroon and they have not been compe
lled to
become Cameroonians just as if one were to go into big cities in Nigeria
, he will find
many Cameroonians studying. He warned Mr. Panso Kimalaki very seriously
and told
him in concrete terms that Mvelogo is in Cameroon territory and he as a
foreigner must
respect the laws of Cameroon and not to teach the population rebellion a
gainst their own
fatherland."
7.202 It is clear from this discussion that Mr Kimalaki was referring to
the Mberogo which is "about one
kilometre from" Tosso and which in the opinion of the Cameroonian offici
al acting as note-taker is "at
the extreme boundary of Nigeria and Cameroon". There can be no doubt tha
t this is the Nigerian village
of Mberogo located at latitude 6_ 55' 25" N, longitude 10_ 13' 40" E, an
d that the "Nigerian village" of
Tosso to which he referred, and whose location was not disputed by Camer
oon officials, was the village
at latitude 6_ 56' 00" N, longitude 10_ 12' 40" E and sometimes referred
to as Tosso North (the positions
given for these villages were obtained by GPS by members of the Nigerian
legal team in March 2000).
Mr Kimalaki's question whether the Sub-Prefect was sure that the boundar
y between Cameroon and
Nigeria was actually on the river separating the two villages can only b
e taken as a reference to the River
Gamana, with the clear implication that local Cameroonian officials beli
eve this to be the boundary and
31
try to enforce it as such, with this (Nigerian) Mberogo consequently regarded as being in Cameroon.
7.203 Cameroon's position, as represented by the conduct of its local of
ficials, is inconsistent with the
delimitation in the 1946 Order in Council. It is clear from the relevant
passages (quoted above in
paragraphs 7.188 and 7.197) that to the east, south and west of Tosso t
he boundary follows two straight
lines, one from the point where the River Sama divides in two and runnin
g to the highest point of Mount
Tosso, and the second running from that highest point to where the Kentu
-Bamenda road crosses a
tributary of the River Akbang. There can be no suggestion that in this s
ection the boundary follows the
course of a river. Cameroon recognises this in its own maps submitted wi
th its Reply (Map R27 in Vol.
I, p. 581, and Map 21 in Vol. II).
7.204 The implications of the foregoing paragraphs for questions of Came
roon's international
responsibility for the conduct of its officials at the Nigerian village
of Mberogo are dealt with in Chapter
18. For present purposes it is sufficient for Nigeria to ask the Court t
o declare that:
(1) the boundary asserted by Cameroon is not in accordance with the re
levant provisions of the Order in
Council cited in paragraphs 7.188 and 7.197 above;
(2) those provisions (subject to paragraphs 7.112-7.116 above) corre
ctly delimit the boundary in this
area;
(3) in particular, the boundary follows two straight lines running to
the east, south and west of the
Nigerian villages of Tosso and Mberogo located at the places identified
by their co-ordinates in
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paragraph 7.202 above; and
(4) the boundary delineated by Nigeria in red on Fig. 7.39 is in conformity with that delimitation.
__________
1 Argentine-Chile Frontier Dispute (1966), International Law Reports,
vol. 38, p. 10 (commonly referred to as
the La Palena arbitration).
2 As to the validity of this description today, see Chapter 4.
3 See, for example, Sikes, Lake Chad (1972), pp. 56, 111, "The delta o
f the Bahr el Beïd, also called the Ebedji
or Ebeji River, ... forms the western part of the complex of deltas buil
t by the Chari-Logone River system and its
distributaries"; "... developing over the clay sediment of the El Beï
d and Yobe deltas...".
4 "the Ebeji actually had two possible mouths".
5 "the course of the Ebeji does not seem to have changed since the start
of the century".
6 "in accordance with the Franco-British declaration of 10 July 1919 and
with the Thomson-Marchand
Declaration of 29 December 1929 and 31 January 1930 confirmed by the Exc
hange of letters of 9 January 1931".
7 "the point identified by the LCBC corresponds to the mouth of the Ebej
i as it existed in 1931 and as it was
described on the Thomson-Marchand map".
8 "does not alter in any way the exactness of the determination, by the
LCBC's experts, of the mouth of the
Ebeji".
9 "they [i.e. the negotiators] chose an identifiable, geographic point o
f reference, the mouth of the Ebeji".
10 I.L.R., Vol. 38, at pp. 93-95.
In the period 1921-1926, officers of the two administrations were sent o
ut by their respective Governors to
propose a more detailed delimitation of the boundary than had been suppl
ied in the Milner-Simon Agreement
1919. Their work was later the basis for the Thomson-Marchand Declaratio
n.
12 Annex NR 151.
13 This boundary is shown in green on the map.
14 The apparently single name "Madogoba Gamdira" in Article 25 is in fac
t a reference to two adjacent groups of
villages now known as Maduguva and Gandira.
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15 "It [i.e. the Logan-Le Brun description of the boundary] corresponds
to the terms of the Thomson-Marchand
Declaration, which Nigeria does not contest. It also conforms to the Cam
eroonian I.G.N. map of the region (Map
No. 12 in the cartographic atlas appended to the present Reply, also rep
roduced overleaf). It should be
particularly emphasised that the Logan-Le Brun letter specified (contra
ry to the information given on Nigeria's
Map 69) that the Sassiri River runs to the South, which means that the
boundary shown on Map No. 12 in
Cameroon's Atlas by a line which follows the river to the South from the
point of confluence corresponds to the
text. The boundary is therefore correctly delimited by the Thomson-March
and Declaration..."
16 So'o is the modern name for Jimbare.
17 Haraji tax, which was paid in naira, is the local community charge.
18 The Maio Yin is some 80 kms to the north of the section of boundary d
elimited in Articles 60 and 61.
19 MC, p. 669, para. 9.1(a).
20 See maps in the Memorial at pp. 349, 415 and 424.
21 See above, paras. 7.6 and 7.20.
22 "Ligne de partage des eaux", crest, more or less pronounced, at the junction of two slopes, consti
tuting the
boundary between two hydrographic basins.
23 I.C.J. Reports 1962, at p. 15. Distinctions between watershed lines a
nd other relevant lines were much
discussed, for example, in the Plateau of Manica Arbitration (1897), but no general definition of a 'watershed'
was put forward by the Arbitrator: Moore, International Arbitrations, Vol. 5, p. 4485, esp. p. 4995 et seq.
24 During a visit to the area by the Nigerian legal team in March 2000,
it was established that names on existing
maps for hills in the area were misplaced as a result of cartographic er
rors. Mitchya Hill is situated at the co-
ordinates given in para. 7.142 above and not immediately south of Mbidiw
a village. Bidwa Hill is immediately
south of Mbidiwa village and not south of Gaddamayo. The hill named as B
idwa south of Gaddamayo is in fact
called Bana.
25 CR 98/4, p.14; CR 98/6, pp. 37-38.
26 Fig. 7.35 is the version of Moisel's map annexed to the Milner-Simon
Declaration 1919. The green line marks
the boundary as delimited in that Declaration: the section of the bounda
ry north of Kontcha was varied in the
Thomson-Marchand Declaration.
27 "indisputably located in Nigerian territory as the map shows".
28 See further, paras. 16.52-16.53.
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29 There are three spellings - Mberogo, Mbelogo and Mvelogo: all refer t
o the same village.
30 The description of Mr Kimalaki, and the location of Tosso, would appe
ar to be explanatory comment provided
by the Cameroonian note-taker.
31 This erroneous Cameroonian view is confirmed by the document appearin
g at p. 339 of Annex OC 1: see NC-
M paras. 24.304-24.305.
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PART III
THE LAND BOUNDARY
CHAPTER 8
CONCLUSION AS TO THE COURSE OF THE LAND BOUNDARY BETWEEN LAKE CHAD
AND BAKASSI
Conclusion as to the course of the land boundary between Lake Chad and B
akassi
8.1. It will be apparent from Chapters 6 and 7 that, so far as concerns
the boundary running southwards
from BP64 to a point at the north of the Bakassi Peninsula, Nigeria acce
pts as a sufficiently complete
and accurate delimitation of the boundary between Nigeria and Cameroon t
he description of that
boundary contained in the Anglo-German Demarcation Agreement of 12 April
1913 and the Anglo-
German Agreement of 11 March 1913 (as far south as prescribed by Articl
e XVII).
8.2. So far as concerns the boundary from the mouth of the River Ebeji s
outhwards to BP64, Nigeria's
acceptance of the delimitation of that boundary in the Thomson-Marchand
Declaration and the Second
Schedule to the Nigeria (Protectorate and Cameroon) Order in Council 1
946, is, as explained, subject to
the need for interpretation and clarification in the areas referred to i
n paragraphs 7.8-7.120 (and subject
to the observation made in the last two sentences of paragraph 7.1)
8.3. Accordingly, for the reasons given in Chapters 6 and 7 Nigeria subm
its that, subject to the
clarifications, interpretations and variations explained in Chapter 7, a
nd subject also to what is said
elsewhere as to the boundaries in the Bakassi and Lake Chad areas, the land boundary between Lake
Chad and Bakassi is delimited by the terms of:
(1) the Thomson-Marchand Declaration, paragraphs 2 (from the words "t
he mouth of the Ebeji") to 61;
(2) the Second Schedule to the Nigeria (Protectorate and Cameroons)
Order in Council 1946;
(3) the Anglo-German Demarcation Agreement of 12 April 1913, for the s
tretch between boundary
pillars 64 and 114 established by that Agreement; and
(4) the Anglo-German Agreement of 11 March 1913, Articles XV to XVII.
8.4. The effect of those instruments, as clarified, interpreted or varie
d in the manner identified by
Nigeria, is for convenience set out in the Appendix to this Chapter and
is delineated in the maps in the
Atlas submitted with this Rejoinder. This Atlas sets out the complete delimitation of the land boundary
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either in the terms used in the relevant instruments or in the terms in
which, in Nigeria's submission,
those terms are now properly to be understood. Such a delimitation affor
ds, in Nigeria's submission,
both
(1) a clear statement of the course of the boundary for immediate appl
ication by those living and
working on both sides of the boundary, and by the authorities in boundar
y areas; and
(2) a sure basis on which those who may in the future be charged with
the necessary task of demarcating
the boundary may carry out their task, and effectively resolve, in the e
xercise of the normal limited
discretion conferred upon demarcation commissions, any remaining minor l
ocal problems which may
arise during their work.
8.5. To the extent that the Court does not accept Nigeria's submissions
as to the course to be followed by
the boundary, and in any event in relation to sectors of the boundary wh
ich may give rise to problems
which are considered too insubstantial to put before the Court, Nigeria
reserves its position in relation to
any future negotiations, discussions, developments or activities.
8.6. For the convenience of the Court, Nigeria attaches to this Rejoinder
(1) an Atlas containing a complete map of the Nigeria-Cameroon land boundary from th
e mouth of the
Ebeji to the point where the boundary reaches Archibong Creek, on which
is marked in red the boundary
as Nigeria believes it to be; and
(2) (in the Appendix to this Chapter) a complete delimitation of tha
t boundary in the terms used in the
Thomson-Marchand Declaration and the 1946 Order in Council, as interpret
ed and clarified in the
manner and for the reasons explained by Nigeria in Chapter 7.
__________
1 See Chapters 1-3.
2 See Chapters 4-5.
3 See above para. 6.2.
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PART III
THE LAND BOUNDARY
CHAPTER 8
APPENDIX
The Texts of the 1931 Thomson-Marchand Declaration
and
1946 Nigeria (Protectorate and Cameroon) Order in Council
with Nigeria's Proposed Amendments
1931 Thomson-Marchand Declaration
Art Textual description Nigeria's Proposed Text
No
2. [On a straight line as far as] the mouth of the [On a straight line as far as] the mouth of the Ebeji [El
Ebeji. Beid], in latitude 12° 31' 45" North, longitude 14° 13' 00"
East.
3. Thence from this mouth along the course of the
River Ebeji which bears on the upper part the
names of Lewejil, Labejed, Ngalarem, Lebei et
[sic] Ngada, as far as the confluence of the
Rivers Kalia and Lebaiit.
4. Thence from the confluence of the Rivers
Ngada, Kalia, and Lebaiit along the course of
the Rivers Kalia or Ame as far as its confluence
with the River Dorma or Kutelaha (Koutelaha).
5. Thence from the confluence of the Rivers Kalia
and Dorma or Kutelaha, along the course of this
last river as far as a point to the south of the
village of Segage where it meets a marsh
stretching towards the south.
6. Thence by a line through the middle of this
marsh to where it meets the road from Segage
towards a marsh named Sale
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7. Thence following the road to a point about a
kilometre and a half to the north of the said
marsh.
8. Thence passing about a kilometre and a half to
the west of the marsh as far as a point about a
kilometre and a half to the south of the marsh on
the road leading to the village of Gourgouron.
9. Thence following this road to a point situated
about 2 kilometres to the north-east of the
village of Gourgouron and passing through a
marsh nearly a kilometre to the north of this
village to a point situated about 2 kilometres to
the west on the Gourgouron-Ferfarti road,
leaving the villages of Sale, Mada and
Gourgouron to France.
10. Thence following the road and meeting a
number of waterholes (shown on Moisel's map
under the name of Amjumba), to a point
situated about a kilometre from the village of
Ferfarti and entering a marsh situated 500
metres to the north of this village which is still
assigned to France.
11. Thence turning to the west, south-west and
south as far as the bed of a defined river and
following the bed of this river in a south-
westerly direction to a large marsh named Umm
Jumba (Amjumba), leaving the villages of
Galadima Jidda, Abu Kharaza and Ulba to
England.
12. Thence following a line through the middle of
this marsh, passing the bed of a small stream
which is frequently lost in the marsh, as far as a
water-hole called Diguilaba and a confluence
with another line of marsh running more to the
south in the direction of Wasa rock..
13. Then going on and meeting the bed of a better
defined stream crossing the marsh of Kulujia
and Kodo as far as a marsh named Agzabame.
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14. [Thence crossing this marsh where it reaches a Thence, crossing this marsh, the boundary reaches the
river passing quite close to the village of more southerly of two defined channels of the Ngassaoua
Limanti (Limani) to a confluence at about 2 River. From this point, the boundary follows the most
kilometres to the north-west of this village.] southerly of four channels of the Ngassaoua River. The
channel runs south-west to the latitude of Limani, then
turns to the west to pass some 250 metres to the north of
that village, leaving Narki to Nigeria, and joins the main
channel of the Ngassaoua River 2 kms north-west of
Limani and opposite the town of Banki.
15. Thence following the Limanti-Wabisei (Uagisa)
road as far as a brook situated about a kilometre
to the east of Wabisei and passing through the
middle of the villages of Bangimami and
Imchide, and leaving the village of Djarandioua
to France.
16. Thence following this brook as far as a marsh
situated about 3 kilometres to the west of
Wabisei.
17. Thence crossing this marsh to a point where it
meets the River Kolofata and following this
river as far as its confluence with the River
Gwanje or Keraua.
18. [Thence following the Keraua as far as its Thence following the Kirawa River, and between Gange
confluence] in the mountains with a river and Ngabarawa Kuba its eastern channel, as far as its
coming from the west and known by the confluence ... .
"Kirdis" inhabiting the mountains under the
name of Kohom (shown on Moisel's map under
the name of Gatagule), cutting into two parts the
village of Keraua and separating the two
villages of Ishigashiya.
19. [Thence it runs from this confluence as far as Thence it runs from this confluence in a west-
the top of Mount Ngosi in a south-westerly southwesterly direction given by the course of the Kohom
direction given by the course of the Kohom River to its source 1 kilometre south of the Nigerian
(Gatagule) which is taken as the natural triangulation point MM154, Matakam. Thence by a line to
boundary from its confluence as far as its source join the Bogaza River at a point where it makes an abrupt
in Mount Ngosi; the villages of Matagum and change of direction from north-east to south-east. Thence
Hijie being left to France, and the sections of by the course of this river south-westwards to its source
Uledde and of Laherre situated to the north of on Mount Ngossi and from there to the most northerly
the Kohom to England; those of Tchidoui summit of Mount Ngossi by a straight line ........
(Hiduwe) situated to the south of Kohom to
France.]
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20. Thence on a line in a south-westerly direction
following the tops of the mountain range of
Ngosi, leaving to France the parts of Ngosi
situated on the eastern slopes, and to England
the parts situated on the western slopes, to a
point situated between the source of the River
Zimunkara and the source of the River Devurua;
the watershed so defined also leaves the village
of Bugelta to England and the village of Turu to
France.
21. Thence in a south-south-westerly direction,
leaving the village of Dile on the British side,
the village of Libam on the French side to the
hill of Matakam.
22. Thence running due west to a point to the south
of the village of Wisik where it turns to the
south on a line running along the watershed and
passing by Mabas on the French side, after
which it leaves Wula on the English side
running south and bounded by cultivated land to
the east of the line of the watershed.
23. Thence passing Humunsi on the French side the
boundary lies between the mountains of Jel and
Kamale Mogode on the French side and running
along the watershed.
24. Thence passing Humsiki, including the
farmlands of the valley to the west of the village
on the French side, the boundary crosses Mount
Kuli.
25. [Thence running due south between Mukta Thence from Hosere Kilda the boundary follows a
(British) and Muti (French) the incorrect line of watershed between the tributaries of the Maio Muri to the
the watershed shown by Moisel on his map west and those of the Maio Dyou to the east, leaving the
being adhered to, leaving Bourha and Dihi on village of Amsa to Cameroon, as far as the summit of a
the French side, Madogoba Gamdira on the hill some 1300 metres NNW of Moudi (Muti), which
British,] Bugela or Bukula, Madoudji, summit is in latitude 10° 24' 28" N and longitude 13° 31'
Kadanahanga on the French, Ouda, Tua, and 41" E. From this summit, the boundary follows a series of
Tsambourga on the British side, and Buka on three straight lines that closely follow the incorrect line of
the French side. the watershed shown on Moisel's Map B3 attached to the
Milner-Simon Declaration of 1919. In so doing, the
village of Moudi, which lies on the south bank of the
Maio Potoki, is left to Cameroon. The co-ordinates of the
end points of the three straight lines are as follows:
Point Latitude Longitude
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Hill NNW of Moudi 10° 24' 28" N 13° 31' 41" E
Hosere Paliroum 10° 20' 31" N 13° 32' 00" E
Hill A 10° 19' 05" N 13° 31' 20" E
End of "incorrect 10° 18' 00" N 13° 31' 08" E
Watershed"
From this last point, which marks the end of Moisel's
"incorrect watershed", the boundary follows the main
watershed southwards between the catchment of the Maio
Yedseram (Nigeria) and that of the Maio Kebbi
(Cameroon), passing 1500 metres to the west of Bourha
and leaving Dihi to Cameroon and Maduguva and
Gandira to Nigeria...
26. Thence the boundary runs through Mount
Mulikia (named also Lourougoua).
27. Thence from the top of Mount Mulikia to the ... leaving Koja and its associated farmlands to Nigeria
source of the Tsikakiri, [leaving Kotcha to and Dumo to Cameroon, following the line of the
Britain and Dumo to France and following a watershed passing through a cairn at latitude 10° 04' 43"
line marked by four provisional landmarks N, longitude 13° 17' 49" E and then along the main
erected in September 1920 by Messrs. Vereker watershed to the highest source of the southern branch of
and Pition.] the Tsikakiri River at latitude 10° 01' 57" N and longitude
13° 17' 18 E.
28. Thence along the course of the Tsikakiri, as it
exists in reality and not as it is shown on
Moisel's map, to its confluence with the River
Tiel.
29. Thence the course of the Mayo Tiel as far as its
confluence with the Benue.
30. Thence along the course of the Benue upstream
as far as its confluence with the Faro.
31. Thence along the course of the Faro as far as the
mouth of its branch, the Mao Hesso, situated
about 4 kilometres south of Chikito.
32. Thence along the course of the Mao Hesso as
far as landmark No. 6 of the old British-German
frontier.
33. Thence a line starting from Beacon 6, passing
Beacon 7, finishing at the old Beacon 8.
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34. Thence from this mark 8 placed on the left bank
of the Mao Youwai, a small stream flowing
from the west and emptying itself into the Mayo
Faro, in a straight line running towards the
south-west and reaching the summit of Wamni
Range, 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 No. 10.
35. Thence the frontier follows the watershed from ...as far as the south peak of the Alantika Mountains,
the Mao Wari to the west and from the Mao known as Hosere Bila, lying 2 kms to the north of the
Faro to the east, where it rejoins the Alantika source of the Maio Mali and in latitude 8° 38' 30" N,
Range, it follows the line of the watershed of longitude 12° 30' 00 E.
the Benue to the north-west and of the Faro to
the south-east [as far as the south peak of the
Alantika Mountains to a point 2 kilometres to
the north of the source of the River Mali.]
36. [Thence from this peak by the River Sassiri, Thence from this peak by the course of the Maio Leinde
leaving Kobi to France and Kobi Leinde to (or Lugga) to its confluence with the Maio Sassiri running
Great Britain, Tebou and Tscho to France, as far from the south, which confluence lies on the Kojoli-
as the confluence with the first stream coming Jimbare [So'o] road. From the confluence, the boundary
from the Balakossa Range (this confluence follows the Maio Sassiri upstream to its source in a marsh
touches the Kobodji Mapeo track), from this approximately 300 metres north of the site of the village
stream towards the south, leaving Uro Belo to of Nanaoua, and thence crosses the watershed, leaving the
Great Britain and Nanaoua to France.] sites of Nanaoua to Cameroon, to reach the source of the
Maio Nyemsenga.
37. [Thence the boundary rejoins the old boundary Thence the course of the stream Nyemsenga downstream
about Lapao in French territory, following the to its confluence with the Maio Silba, thence the course of
line of the watershed of the Balakossa range as the Maio Silba downstream to its confluence with a
far as a point situated to the west of the source stream known as Jetwunga, flowing from the west. About
of the Labidje or Kadam River, which flows 100 metres up the Jetwunga from the confluence is a
into the River Deo, and from the River Sampee prominent rock slide over which the stream flows, known
flowing into the River Baleo to the north-west.] locally as Kombunga. The boundary follows the Jetwunga
upstream until it meets a path running to the west at a
point 400 metres to the south of a Nigerian village called
Wuro Lawal. From this point, the boundary follows a
footpath until it reaches a point close to the source of the
Wusima stream, thence by this stream southwards,
leaving Nyargan to Nigeria, to its confluence with the
Maio Kadam, and thence by this river as far as a point
from which the summit of a hill known as Wumkola in
the Balkossa Mountains has a bearing of 47°.
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38. [Thence from this point along the line of the From this point on the Maio Kadam, the boundary runs in
watershed between the River Baleo and the a straight line for a distance of approximately 1600 metres
River Noumberou along the crest of the (one mile) on a true bearing of 202° to a small hill called
Tschapeu Range, to a point 2 kilometres to the Bomdingba, thence in a direct line on a true bearing of
north of Namberu, turning by this village, which 219° by a series of cairns to a point on the Maio Namberu
is in Nigeria, going up a valley north-east and (Nangua) approximately 3600 metres (2¼ miles) ESE of
then south-east, which crosses the Banglang Namberu village, leaving Sapeo, Jumba and Lainde to
range about a kilometre to the south of the Nigeria, thence by this river upstream first in a north-west
source of the Kordo River.] direction and then south-west to a saddle above its source,
which saddle lies on a true bearing of 150° and at a
distance of 1600 metres from the Nigerian triangulation
station F6 Bangla.
39. Thence from this point on a straight line running
towards the confluence of the Rivers Ngomba
and Deo until the line meets the River Kolob.
40. Thence along a line parallel to the Bare Fort
Lamy Track and 2 kilometres to the west of this
track, which remains in French territory.
41. Thence a line parallel to and distant 2
kilometres to the west from this road (which is
approximately that marked Faulborn, January
1908, on Moisel's map) to a point on the Maio
Tipsal (Tiba, Tibsat, or Tussa on Moisel's map)
2 kilometres to the south-west of the point at
which the road crosses said Maio Tipsal.
42. Thence the course of the Mayo Tipsal upstream
to its confluence with the Maio Mafu, flowing
from the west, to a point some 12 kilometres to
the south-west of Kwancha.
43. Thence a straight line running south-west to the
highest peak of the Hosere Jongbi (Dutschi-n-
Djombi of Moisel's map).
44. Thence the watershed between the basins of the
Maio Taraba on the west and the Maio Deo on
the east to the second from the north of the four
peaks of the Hosere Bakari Be (Dutschi-n-
Bertua on Moisel's map). These four peaks run
from north to south parallel to and about 3
kilometres to west of the road from Bare to Fort
Lamy.
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45. From this second peak issues the Maio Tapare
which, flowing east to the Maio Deo, forms the
boundary between the Districts of Kwancha and
Dodeo.
This peak is the source of the Maio Tapare, and
is 2 miles due west of the Maio Tapare Rest-
house. This line leaves the villages of Mafou
and Kounti in French territory.
46. Thence following the watershed between the
Maio Tapare (and its affluents) and the Maio
Deo (and its affluents) along, successively, the
two remaining peaks of the Hosere Bakari Be
(running form north to south), the three peaks of
the Hosere N'Yamboli, the two peaks of the
Hosere Maio Baji, Hosere Lainga. These three
little groups of Hosere N'Yamboli, Hosere Maio
Baji and Hosere Lainga run south-west and
form the Bapai range. Behind the Bapai range is
the Sapbe Kauyel, which is in British territory.
47. Thence across the saddle connecting the Bapai
range and the imposing Genderu Mountains.
From this saddle the frontier climbs to the first
prominent peak in the Genderu Mountains
(known as Hosere Jauro Gotel or as Hosere
Jagam), thence along the remaining three peaks
of Hosere Jauro Gotel (or Hosere Jagam),
thence along the four peaks of Hosere Sangoji
to Sapbe M'Bailaji. These last three groups of
hills constitute part of the watershed between
the Maio Taraba and the Maio Yim.
48. Thence to Hosere Lowul, which is well over 2
kilometres from the Kwancha-Banyo main road.
This peak (Hosere Lowul) lies on a magnetic
bearing of 296 from the apex of the Genderu
Pass on the above-mentioned main road. From
this apex, which is distant 3½ miles from
Genderu Rest-house, and which lies between a
peak of Hosere M'Bailaji (to the west) and a
smaller hill, known as Hosere Burutol, to the
east, Hosere M'Bailaji has a magnetic bearing of
45 and Hosere Burutol one of 185.
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49. Thence a line, crossing the Maio Yin at a point
some 4 kilometres to the west of the figure
1,200 (denoting height in metres of a low
conical hill) on Moisel's map E 2, to a
prominent conical peak, Hosere Gulungel, at the
foot of which (in French Territory) is a spring
impregnated with potash, which is well-known
to all cattle-owners in the vicinity. This Hosere
Gulungel has a magnetic bearing of 228 from
the point (5 miles from Genderu Rest-house,
which is known locally as "Kampani Massa" on
the main Kwancha-Banyo road where it (Hosere
Gulungel) first comes into view. From this same
point the magnetic bearing to Hosere Lowul is
11. The Salt lick of Banare lies in British
Territory.
50. This peak, Hosere Gulungel, is the first of six
forming the little chain of the Hosere Golurde
(not "Gorulde" as on Moisel's map E. 2). The
frontier runs along these six Golurde peaks,
thence to a little isolated peak (Hosere
Bolsumri) leaving the Bolsumri potash spring
on the British side. The magnetic bearings from
Maio Lelewal (otherwise known as Yakuba)
Rest-house are: to Rosere Gulungel 356, to the
sixth peak of Hosere Golurde chain 323, and to
Hosere Bolsumri 302. Hosere Bolsumri, the
nearest peak on the frontier to the Kwancha-
Banyo road, is over 2 kilometres from this road.
51. Thence along the chain of hills known as
Hosere N'Getti, which form the watershed
between the Maio Gangan and the Maio Yin
(and Taraba), and which ends in a high flat peak
on a magnetic bearing of 248 from Maio
Lelewal (or Yakuba) Rest-house.
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52. Thence a line over a high plateau, crowded with
mountain-tops, forming the watershed between
the Maio Gangan to the west (British) and Maio
Dupbe to east (French) and the Maio Banyo to
west (French). These two last-named rivers flow
into the Maio M'Bamti. The whole of this line is
entirely uninhabited for fully 5 miles on either
side, and it extends for some 13 or 14 miles in
length. It is, moreover, impassable at the very
height of the rains. It lies on a very lofty and
desolate plateau, and, starting first in a southerly
direction, swings to the south-west as it winds
among a sea of mountain-tops forming in
succession the groups known locally as Hosere
N'Yamn'Yeri, Sapbe Bnokni, Sapbe Pelmali,
Sapbe Wade, Sapbe Gallal and Sapbe Sirgu.
53. Sapbe Sirgu, known to the local Pagans as
"Yajin", and called loosely "Gotel Berge" on
Moisel's map E2, is the last part of the
watershed between Maio Gangan and Maio
Banyo. The Banyo-Gashaka-Ibi road climbs
steeply up this Sapbe Sirgu and cuts the Frontier
at the apex of the pass 6 miles to the north-west
of the Gandua Rest-house (the last rest-house on
this road in French Territory).
54. Thence to a point at the south-west end of the
Sapbe Sirgu, 2 kilometres to the north of the
letter "i" in the word "Tukobi" on Moisel's map
E 2. This point is on the common watershed
between the three sets of head-waters of the
Maio Gashaka (British), the Maio Donga (or
Kari), British and also of the Maio Teram
(French).
55. Thence a line running, generally, due south, to
cross the Banyo-Kuma road 2 miles to west of
the 1,630 metres hill on Moisel's map E 2.
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56. Thence the Frontier swings to the east,
following the watershed between the Maio
Donga (or Kari) and the Maio Teram, thence to
the south-east, among the Hosere N'Tem.
Leaving the Sabri potash spring in the Gashaka
District in British Territory. Thence south-south-
west through, successively, the crests of the
Hosere N'Dangani, Hosere Kewal, Hosere
Wajuru, and the Hosere Bangaro, which last lie
to the west-north-west of the Pagan village of
Bangaro, to a point on a saddle which connects
the more westerly of the two parallel ridges
forming the Hosere Bangaro with the higher
Sapbe Ma (still further to the west). This saddle
forms the watershed between the source of the
Mai N'Gum (French), which later joins the Maio
Teram 6 miles south of Banyo Town, and the
source of the Maio Kemme, which is one of the
head-waters of the Maio Donga. The Maio
Kemme was traced for 6 miles from its source
as it flowed east towards the large Pagan village
of Kabri. The above-mentioned saddle is 4
miles from Bangaro village, and is on the
Banyo-Kabri path. Thus the prominent rocky
bluff, Hosere Tongbau, lies entirely in French
territory.
57. From this saddle the Frontier follows the
watershed to a prominent peak, the second of
the Sapbe Ma group of mountains. This peak is
on a magnetic bearing of 215 from the above-
mentioned point where the Banyo-Kabri path
cuts the watershed between the Maio N'Gum
(French) and the Maio Kemme (British).
58. Thence the watershed runs generally south-west
along, in succession, the peaks of the Sapbe Ma,
the Hosere Jin (in front of which range is a very
prominent, detached, fang-like, rocky peak -
also called Jin - visible for many miles from the
north, east and south, which is entirely in
French Territory), the Hosere Maio Dalle and
the Hosere Gesumi. In front of, and parallel to,
the Hosere Gesumi is the chain of the less lofty
Hosere Ribao. These Hosere Ribao are close to,
and overlook, the Ribao Rest-house (the third
rest-house from Banyo) and are wholly in
French Territory.
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59. Thence the Frontier continues amongst the
peaks of the Hosere Gerumi, following the
watershed between the head-waters of the Maio
Donga to the north, and the Maio Kwi (French)
to the south, and the Maio Mabe (French) to the
south. These head-waters of the latter two
(French) rivers emerge from between the
Hosere Chemo, the Hosere Lu, the Hosere Atta
and the Hosere Songkorong, which, in
succession, form the foothills to the loftier
Gesumi range behind them to the north-west
north of Songkorong village, which is on the
Banyo-Kumbo-Bamenda road, these Hosere
Gesumi are called by the local Pagans Hosere
Hambere.
60. [Thence the Frontier follows the watershed Thence the frontier follows the watershed amongst these
amongst these Hosere Hambere (or Gesumi) to Hosere Hambere (or Gesumi) to the north of the sources
the north of the sources of the Maio Kombe, of the Maio Kombe and the Maio Gur to the summit of a
Maio Gur and Maio Malam to a fairly hill, height 1720 metres, lying about 1 kilometre from
prominent, pointed peak which lies on a Tamnyar. From this hill, the frontier runs in a straight line
magnetic bearing of 17º from a cairn of stones, in a south-westerly direction for about 2300 metres to the
8 feet high, erected on the 15th September, summit of a hill, height 1751 metres, shown on Cameroon
1920, on the south side of the above Banyo- maps as Mount Kombon but called Itang by the Mambilla
Kumbo-Bamenda road at a point 1 mile from people.
N'Yorong Rest-camp and 8½ miles from
Sonkorong village.]
61. [From this peak in the Hosere Hambere (or From this summit, the frontier follows the edge of the
Gesumi), which is situated just to the east of the escarpment leaving Sanya to Nigeria until it reaches the
visible source of the Maio M'Fi (or Baban), the watershed between the Ntum and its tributaries to the west
Frontier follows the watershed, visible all the and the Dja to the south-east. Thence it follows this
way from the Cairn, between the Maio Malam watershed southwards for about 900 metres to the most
to east (French) and the Maio M'Fi (or Baban) easterly summit of a ridge called Tonn running
to west (British), till it cuts the Banyo-Kumbo- approximately east-west and having three summits.
Bamenda road at the Cairn. This Cairn is
immediately under the highest peak of the
Hosere Nangban, which is shown on Moisel's
map F 2 as Hosere Jadji, but Jadji is really the
name of the Pagan head of N'Yorong village.]
1946 Order in Council
Textual Description Nigeria's Proposed Text
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[From boundary post 64 on the old Anglo- From the point of intersection of a straight line joining
German frontier the line follows the River BP64 and BP65 on the old Anglo-German frontier and the
Gamana upstream] to the point where it is median line of the Gamana River, the line follows the
joined by the River Sama; Gamana River upstream...;
[Thence up the River Sama to the point where it Thence up the Sama River to a point approximately 6.5
divides into two;] kilometres south of its confluence with the Gamana River,
where it divides in two;
Thence a straight line to the highest point of
Tosso Mountain; thence in as straight line
eastwards to a point on the main Kentu-
Bamenda road where it is crossed by an
unnamed tributary of the River Akbang (Heboro
on Sheet E of Moisel's map on Scale 1/300,000)
- the said point being marked by a cairn;
Thence down the stream to its junction with the
River Akbang; thence the River Akbang to its
junction with the River Donga; thence the River
Donga to its junction with the River Mburi;
[Thence the River Mburi southwards to its Thence the median line of the Mburi (Manton) River
junction with an unnamed stream about one southwards to its confluence with the Maven River,
mile north of the point where the new Kumbo- thence the median line of the Maven River eastwards to
Banyo road crosses the River Mburi at Nyan its confluence with the Mogog stream, thence the median
(alias Nton), the said point being about four line of the Mogog stream south-eastwards to its source,
miles south-east by east of Muwe; thence along thence in a southerly direction for 100 metres and thence
this unnamed stream on a general true bearing in an easterly direction for about 550 metres to the site of
of 120° for one and a half miles to its source at a a large cairn (now destroyed) on the Lip-Yang road.
point on the new Kumbo-Banyo road, near the
source of the River Mfi;]
[Thence on a true bearing of 100° for three and From this point, the boundary follows the watershed
five-sixths miles along the crest of the between the Mburi (Manton) and its tributaries to the
mountains to the prominent peak which marks north and the Mbatye and Mfi and their tributaries to the
the Franco-British frontier.] south, following the crest of the mountains to the most
easterly summit on the ridge known as Tonn where it
meets the Nigeria-Cameroon boundary as it is defined in
Article 61 of the Thomson-Marchand Declaration of 1931.
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apter 09
PART IV
THE MARITIME BOUNDARY
CHAPTER 9
PRELIMINARY ISSUES
A. Introduction
9.1 This Part of Nigeria's Rejoinder deals in further detail with the maritime boundary, building on the
arguments set out in Chapters 20-23 of Nigeria's Counter-Memorial. Cameroon's arguments and claims
are set out in Part Two (Chapters 7-9) of its Reply.
9.2 There are a number of eccentricities in Cameroon's treatment in its
Reply. For example, it is
suggested that the Court should treat Nigeria under Article 53 of the St
atute as having "fail[ed] to defend
1
its case". This requires no further comment. Cameroon also alleges that Nigeria is
seeking to reopen its
Seventh Preliminary Objection in calling on the Court to exercise its discretion to deal with the lan
d
2
boundary first. Nigeria remains of the view that this would be an efficient and orderly
way of dealing
with the case. In calling on the Court to conduct the case in this way,
Nigeria was merely calling on it to
exercise a power which its judgment on Preliminary Objections had expressly affirmed and reserved for
3
later consideration.
B. What is Cameroon's Claim Line?
9.3 Turning to the substance of the case, a serious initial doubt arises
as to the actual claim line of
Cameroon. Cameroon depicts that claim in its Map R21, which is reproduce
d several times in its
4
pleadings under the rubric "La Ligne Equitable". Cameroon makes it clear that the claim line continues
further out to sea, although it declines to say how far.n Map R21 the line is shown extending
approximately a further 105 km (58 n.m.) out to sea, inclining slightl
y further towards the Nigerian coast
to a point which can be called Point "L". Points "H", "I", "J" and "K" a
re shown on Cameroon Map R21,
and Point "L" may easily be read from it.
9.4 Cameroon also gives the co-ordinates of its claim line in the text o
f its Reply, as follows:
Point "G" 4° 17' 00" N
8° 22' 19" E
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Point "H" 4° 17' 00" N
6
8° 21' 16" E
Point "I" 3° 46' 00" N
7° 55' 40" E 7
Point "J" 3° 12' 35" N
7° 12' 08" E 8
Point "K" 3° 01' 05" N
9
6° 45' 22" E
Thus it is possible to read from the text of the Reply a claim line passing through Points "H"-"K" with
the above co-ordinates, and to infer from the Reply that the line is to be extended at least out to Point
"L", which would have approximately the following co-ordinates: 2° 40
' 41" N; 5° 55' 18" E.
9.5 Unfortunately the co-ordinates of the turning points shown on Camero
on's Map R21 are quite
different from those given in the text of its Reply. This can be seen from Fig. 9.1. The line to the south-
east (G-H-I-J-K-L) is the line shown on Cameroon's map as its claim li
ne. The line to the north-west
(shown on Fig. 9.1 as G-H-I'-J'-K'-L') is the line described in the text of its Reply, extended to point " L'
".
9.6 The differences between the six turning points, as shown in Map R21
and as derived from the text of
Cameroon's Reply, are as follows:
Co-ordinates of point as Co-ordinates of point as Distance between two
described in text of RC estimated from Map R21 points (km)
Point "G": 4° 17' 00" N 4° 17' 24" N ±3 km
8° 22' 19" E 8° 24' 00" E
Point "H": 4° 17' 00" N 4° 16' 56" N ±2 km
8° 21' 16" E 8° 19' 54" E
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Point "I": 3° 46' 00" N 3° 46' 37" N 6.7 km
7° 55' 40" E 7° 58' 53" E
Point "J": 3° 12' 35" N 3° 02' 40" N 27 km
7° 12' 08" E 7° 22' 51" E
Point "K": 3° 01' 05" N 2° 44' 52" N 36 km
6° 45' 22" E 6° 56' 17" E
Point "L": 2° 40' 41" N 2° 18' 36" N Approx. 44 km
5° 55' 18" E 6° 04' 27" E
9.7 So far as Points "G" and "H" are concerned, the difference between C
ameroon's textual claim and its
graphical representation of its claim is relatively minor. But as the de
picted line proceeds in a south-
westerly and then more westerly direction, it increasingly diverges from
the described line, as can be
seen from Fig. 9.2. The black line G-H-I on Fig. 9.2 is that which appears in Cameroon's Map R22. The
red dashed line follows the co-ordinates given in its text. It can be se
en that by the time Cameroon's line
10
passes by or through Equatorial Guinea's Zafiro field, the difference is significant and it becomes ever
more significant with distance. The area affected by the difference betw
een the claim lines Cameroon
chooses to describe in its Reply and to depict in its maps is approximately 7,400 square kilometres in
size.
9.8 This does not seem to be a technical lapse in a single map. Cameroon
graphically depicts its claim
11
line in its Reply, on an accurately drawn map of the region, several times. Moreover both Map R21
and the textual co-ordinates are referred to in the relevant paragraph o
f Cameroon's submissions (RC,
paragraph 13.01 (c)). Thus, far from making Cameroon's intentions cle
ar, its submissions encapsulate
and maintain the conflict.
9.9 This is presumably the last written pleading in the present proceedi
ngs. Cameroon is the Applicant in
this case and has had a full opportunity to express its claims in clear
and consistent terms. It has not done
so. Nigeria still does not know what is Cameroon's maritime claim. It is presented with radically
different versions of a claim line in the same document, and in Cameroon
's submissions.
9.10 In this extraordinary situation, Nigeria is in a dilemma. All it ca
n do is to respond to both maritime
claims - the more extreme maritime claim specified in the co-ordinates s
et out in the text of Cameroon's
Reply, as well as its repeated graphical representation of its claim - notwit
hstanding that the latter
follows a different line from the former. No doubt, in due course, Camer
oon will tell the Court which
aspect of its submissions in paragraph 13.01 (c) is to be ignored.
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C. What is Cameroon's Actual Maritime Claim?
9.11 Cameroon seeks "to use the ratio of coastal lengths as of itself de
terminative of the seaward reach
and area of the continental shelf proper to each Party". 12 Its method is to take what it sees as the relevant
coastal lengths, including those of Equatorial Guinea and Gabon, and to
use them to construct its points
13
"I", "J" and "K", and presumably also its notional point "L". However it uses this method - repeatedly
condemned by the Court in other cases - not to determine the area of con
tinental shelf proper to
Cameroon but merely to construct a line. Cameroon nowhere actually says
what its maritime claim is, i.
e. what is the extent of its continental shelf or potential EEZ.
14
9.12 Nigeria made this point in its Counter-Memorial, but without effect. Cameroon was no more
open in its Reply: it still declines to say what is the extent of its maritime claim. It
seeks to construct a
maritime exclusion line against Nigeria, and to have the Court endorse i
t. 15 Nigeria is thus to be
excluded from any relationship with the other coastal States in the Gulf
of Guinea, by order of the Court,
and on the basis of a Cameroon calculation which is multilateral in its
character but unilateral in its
effect. There is thus a fundamental contradiction in Cameroon's method -
quite apart from its manifest
contradiction with the practice and activity of all the four States conc
erned, a matter discussed in further
detail in the following Chapter.
9.13 To summarize, Cameroon's maritime claim line is profoundly unclear.
Its submissions refer to a
line which is described textually by reference to one set of co-ordinate
s and shown graphically by
reference to another quite different set, and (since both are referred
to in the submissions) the Court is
given no basis for choosing between them. But whichever way Cameroon's c
laim is described or
depicted, whether it involves 7,400 km 2 more or less, Cameroon's is a mere paper claim, unrelated either
to the requirements of international law or to the actual practice of th
e two States parties to the present
case. Moreover it is a line with no indication of the width of Cameroon'
s maritime zones lying behind it.
In that sense it represents a merely negative and unilateral claim. Came
roon argues that Nigeria should
be excluded from any area to the east of its claim line. But a decision
to this effect by the Court would
not have any implication for the existence or extent of Cameroon's marit
ime zones, especially as the line
proceeds southwards and westwards. The further into the Gulf one goes, t
he more likely it is that areas
immediately on the other side of Cameroon's claim line pertain, not to C
ameroon, but to a third State,
and in these proceedings Cameroon cannot be heard to say that they do no
t. In short, there is no way for
the Court to assess the extent of Cameroon's claim. The secondary test o
f proportionality cannot be
applied to a mere line.
9.14 In the following Chapters, Nigeria will show that the two Parties t
o the present case have, subject to
certain minor areas of overlap, effectively already delimited their resp
ective areas of sovereign rights to
the north-west of Bioko - subject to the resolution of the underlying di
spute over the Bakassi Peninsula
itself. As to the maritime areas, however, the parties (and licensees c
laiming through them) have
engaged in a long and uninterrupted course of practice over nearly 40 ye
ars, involving the drilling in the
disputed area of over 400 wells each, representing a total of several bi
llion dollars of drilling and other
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forms of exploration and use of the spaces concerned. In Nigeria's respe
ctful submission, this long
established practice is completely inconsistent with Cameroon's maritime
claim, however it may be
described or depicted.
9.15 It should be stressed in this context that the dispute over soverei
gnty over the Bakassi Peninsula has
developed, and been pursued by both parties, in substantial disregard of
the question of exploitation of
the hydrocarbon resources to the south of the Peninsula. Nigeria has not
protested the substantial
Cameroon activity to the south of the Peninsula (which is depicted in f
urther detail in the next Chapter).
No more has Cameroon objected to any Nigerian activity to the waters sli
ghtly further west and south,
apart from the unresolved question of the area of overlapping licenses.
This long-standing activity and
acquiescence by both Parties must have legal consequences for vested rig
hts and legitimate expectations
in the maritime domain, however the issue of sovereignty over the Bakass
i Peninsula may be resolved.
9.16 In addition, it may well be that Cameroon has claims to a projectio
n to the south of Bioko into the
"gap" between Equatorial Guinea and São Tomé e Príncipe. But in
the first place, any such claims
plainly arise as between three States (Cameroon, Equatorial Guinea and
São Tomé e Príncipe), two of
which are not parties to the present case. Cameroon's claim could affect
Nigeria only on the hypothesis
that those three States were to agree, or it were validly decided as bet
ween them, that Cameroon has a
projection through the "gap" and into waters further offshore which are
claimed by Nigeria. Cameroon
16
has never mentioned that possibility, not even in its pleadings. Any such claim is well outside the
jurisdiction of the Court in the present case, for at least two reasons.
First, there is the fact that neither
Equatorial Guinea nor São Tomé e Príncipe are parties to the ca
se. Secondly, whether or not there is a
dispute between Cameroon and either of those States, there is at present
no dispute between Cameroon
and Nigeria as to any possible projection of Cameroon's coastal frontage
into the "gap" to the south of
Bioko. Cameroon has made no claim vis-à-vis Nigeria to such a project
ion and has never issued any
licences in this area.
9.17 This does not mean that Cameroon's silence in this matter is irrele
vant. First of all, the "global"
division of the Gulf of Guinea which Cameroon calls on the Court to make
would require the Court to
17
take into account all the maritime zones appurtenant to each of the Gulf of Guinea States, but of
course the Court cannot do that. Secondly, there is a question of the co
nsistency of Cameroon's conduct.
It may be asked why Cameroon now makes an extended maritime claim into t
he heavily exploited,
historically licensed waters to the north-west of Bioko, when it makes n
o equivalent claim into the
unexploited waters to the south. Cameroon's claim in the present case ha
s all the appearance of a grab
for oil resources, resources intensively claimed, explored, developed an
d maintained by and through
other States, and never hitherto claimed by Cameroon. It may be asked wh
ose future Cameroon is
18
seeking to "mortgage". There has never been the slightest suggestion, outside of the pleadings
in this
case, that it was Cameroon's.
D. Structure of this Part
9.18 In the next Chapter (Chapter 10) Nigeria will set out in detail t
he history of the maritime areas
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concerned, and of the Parties' use of those areas, as well as the presen
t state of maritime negotiations
between Nigeria and the other States in the Gulf of Guinea. Next (Chapt
er 11) it will discuss the present
extent of the Court's jurisdiction over the maritime boundary, having re
gard to the fact (which Cameroon
effectively seeks to deny) that only Nigeria and Cameroon are before th
e Court as Parties to the case. It
will then discuss Cameroon's extraordinary extended claim to a projectio
n right out into the Gulf of
Guinea, at the expense of the other three Gulf of Guinea States, and the
associated "global" approach of
Cameroon to delimitation of the Gulf of Guinea as a whole. That claim is
clearly inadmissible and
impermissible in law (Chapter 12). Rather, the actual dispute over whi
ch the Court has jurisdiction is
confined to the smaller area of the Gulf, the Bight of Bonny, which lies
between Nigeria, Cameroon and
Bioko. In a concluding chapter (Chapter 13), Nigeria will discuss the
issues of delimitation in this area.
___________
1 RC, paras. 1.60, 7.40.
2 RC, para. 7.17.
3 See I.C.J. Reports 1998 at p. 321 (para. 106).
4 See RC, p. 411 (R 21), reproduced in its Map Annex as Map 29.
5 RC, para. 9.93.
6 RC, para. 9.86.
7 RC, para. 9.88.
8 RC, para. 9.90.
9 RC, para. 9.92.
10 The Zafiro field is a major oil field, discovered in the early 1990s,
which went into production under
Equatorial Guinea licence in 1996. It is an extension of Nigeria's Ekang
a field, i.e. the oil-bearing structure
straddles the boundary. See further below, para. 10.21 and Fig. 10.5. In
either of its versions, Cameroon's claim
as depicted on its Map R22 embodies a claim to all or most of the Ekanga
-Zafiro field.
11 This is in stark contrast to the sketch which was the basis for Camer
oon's claim in its Memorial, as to which
see NC-M, para. 20.11, and see NC-M, Fig. 20.2. Evidently the new map wa
s drawn especially for the Reply and
in response to earlier criticisms of Cameroon's inaccuracy. Cameroon cou
ld have been expected to get it right the
second time.
12 This is the phrase used by the Court in the Case concerning the Continental Shelf (Libyan Arab Jamahriya/
Malta), Judgment of 3 June 1985, I.C.J. Reports 1985 at p. 45 (para. 58). Th
e passage is cited in full in NC-M,
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para. 21.33. The Court went on to reject the criterion of the ratio of c
oastal lengths as a method of delimitation: I.
C.J. Reports 1985 at p. 45 (para. 58).
13 See MC, p. 556, repeated in RC, Map R23. But Cameroon also implies th
at Point "L" is not the end of its
claim line: RC, para. 9.93. It declines to say how far the claim extends
into waters all of which are well within
200 n.m. from Nigeria's coast, even though they are beyond 200 n.m. from
any point of Cameroon's coast (ibid:
"Cameroon will avoid doing so...").
14 NC-M, para. 23.13-23.17.
15 It also refuses, in advance, any negotiations with Nigeria on the mar
itime boundary: RC, para. 9.39.
16 As noted already, Cameroon's pleadings on the maritime boundary in th
is case bear no relation to its practice
as a coastal State.
17 In its Map R23 (RC, p. 423), Cameroon draws lines from Campo, Cabo
San Juan and Cap Lopez, in order to
determine the size and shape of Nigeria's maritime zones.
18 RC, para. 7.26.
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apter 10
PART IV
THE MARITIME BOUNDARY
CHAPTER 10
MARITIME CLAIMS, OIL PRACTICE AND
AGREEMENTS IN THE GULF OF GUINEA
A. Introduction
10.1 This Chapter describes and analyses the oil practice of the four mo
st concerned States in the Gulf of
1
Guinea. It outlines the current state of their claimed boundaries, their oil li
censing practice and their
existing agreements or negotiations on maritime delimitation. The inform
ation contained in this Chapter
is up to date (as at December 2000) so far as Nigeria is aware, but it
is possible that there are
developments involving other Gulf of Guinea States of which Nigeria is n
ot aware or which have not
been made public. 2
10.2 It is proposed to deal with the situation under the three rubrics o
f claimed maritime boundaries, oil
practice and maritime delimitation agreements.
B. Present Maritime Boundary Claims of the four Gulf of Guinea States
(i) Nigeria
10.3 The position of Nigeria was described in paragraph 20.7 of Nigeria'
s Counter-Memorial. It will
change so far as Equatorial Guinea is concerned if and when the Treaty o
f 23 September 2000 is ratified.
That Treaty is described below.3
(ii) Cameroon
10.4 The position so far as Cameroon is concerned remains as described i
n paragraphs 20.8-20.9 of
Nigeria's Counter-Memorial.
10.5 It should be noted that Cameroon has still not brought its legislat
ion into line with its obligations
under the 1982 Law of the Sea Convention. It is still listed by authorit
ative sources as claiming a 50 mile
territorial sea.or has it enacted EEZ legislation or made any formal claim to an EEZ.
This raises two
preliminary points.
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10.6 As to the first preliminary point (Cameroon's failure to amend its 1974 legislation declaring a 50 n.
m. territorial sea), in its Reply Cameroon argues that this legislation is superseded by virtue of the
5
combination of the Law of the Sea Convention and Article 45 of its Const
itution. Article 45 of the
Cameroon Constitution is textually the same as Article 55 of the French
Constitution. This constitutional
provision purports only to disapply inconsistent treaties on a basis of
reciprocity. On this basis
Cameroon would appear still to have a 50 n.m. territorial sea, at least
vis-à-vis States not parties to the
Law of the Sea Convention. Cameroon seeks to demonstrate that the true e
ffect of Article 45 is to repeal
its Law of 1974. 6 For the reasons already given, Nigeria is not at all convinced by this
"demonstration".
It sees every reason to apply the statement by the French Conseil constitutionnel in relation to the
equivalent French constitutional provision:
"The superior position in the legal hierarchy of treaties over laws prov
ided for by Article
55 is... both relative and contingent. It is limited to the field of app
lication of the treaty
and dependent on a condition of reciprocity whose realisation may vary a
ccording to the
conduct of the signatory State to the treaty and the moment when respect
for this condition
falls to be determined. The simple fact that a law is contrary to a trea
ty does not make it
[sc. the law] contrary to the Constitution."7
In any event, it may be asked, if Cameroon's Law is inoperative erga omnes, why is it still on the statute
book? 8
10.7 As to the second preliminary point (the absence of a Cameroon EEZ), Nigeria accepts that
Cameroon has an entitlement to an EEZ and that the Court can delimit the
scope of that entitlement.
Moreover the parties agree that there is no reason in the present case t
o delimit their EEZs in any
different manner from their continental shelves. 9With respect to the maritime areas within the Court's
jurisdiction in the present case, it is appropriate to determine a singl
e maritime boundary, having regard
to the dominance in the waters concerned of continental shelf resources
as compared with fisheries.
10.8 With respect to both preliminary points, there is however an underlying feature of Cameroon'
s
position. In this as in other respects, Cameroon's professions in its pl
eadings are completely inconsistent
with its practice as a maritime State. This inconsistency will be furthe
r demonstrated throughout this
Part.
(iii) Equatorial Guinea
10.9 Equatorial Guinea, having been granted leave to intervene in the pr
esent proceedings as a third
party, will no doubt deal in its intervention with its current maritime
claims. 10These will be affected by
11
the Treaty of 23 September 2000, described below, if and when that Treat
y enters into force.
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(iv) São Tomé e Príncipe
12
10.10 The position of São Tomé e Príncipe was briefly referred
to in Nigeria's Counter-Memorial.
Two changes have occurred since the Counter-Memorial was completed. First, Equatorial Guinea and
São Tomé e Príncipe on 26 June 1999 finalised a delimitation tr
eaty between them confirming and
13
specifying the existing de facto equidistance line as their maritime boundary. Secondly, São Tomé e
Príncipe and Nigeria have reached an agreement in principle on the es
tablishment of a Joint
14
Development Zone: this is described in more detail below.
C. Oil Practice in the Gulf of Guinea
10.11 In its Counter-Memorial, Nigeria gave a brief account of the history of hydrocarbon development
15
in the region. In its Reply, Cameroon gives some brief information of its own activities, but in an
essentially descriptive manner and under the mildest of headings ("Sect
ion 1. Geographical Matters: § 2.
16
Economic Geography"). Little is provided by way of maps, apart from its Map R25, entitled
"Concessions pétrolières camerounaises et nigérianes - chevauch
ements". 17 That map is reproduced as
Fig. 10.1. It shows, by a heavy dashed and dotted line, Cameroon's limit of opera
tions ("limite des
opérations") in the region. It is accurate to this extent: since 197
5 there have been no Cameroon
operations of any kind, whether involving the grant of licences or any o
ther hydrocarbon activity under
Cameroon auspices, beyond the "limite des operations" shown. It is misle
ading to this extent: there are
no Cameroon installations in the southern area of overlapping licences,
shown in blue on that map. This
can be seen from Fig. 10.1. Moreover, as far as is known, there have been no other Cameroonian oil
activities in this southern area of overlap either. In short, the "limit
of operations" is that shown by the
red line superimposed on Fig. 10.1.
10.12 The blue shaded areas in Cameroon's Map R25, shown on the precedin
g page, should be
compared with the red shaded areas of overlap shown in Fig. 20.5 of Nige
ria's Counter-Memorial. Fig.
10.2, shows more clearly the areas of overlap.
10.13 A comparison of Fig. 10.1 and Fig. 10.2 shows some minor discrepancies, but the basic position is
clear. The area of overlapping licences is a limited one, and does not e
xtend southwards of
approximately 4° N or westwards of approximately 8°16' E. In other
words it concerns rather marginal
areas around the conventional limit for oil operations to the north-west
of Bioko. It should also be noted
that in the northern-most of the two areas of overlap, the actual oil in
stallations (i.e. wells drilled,
whether or not now in production) are Cameroonian, whereas in the south
ern-most, they are Nigerian.
On this basis any uncertainties arising from the overlapping concessions
could, as such, readily be
resolved.
10.14 Leaving aside minor discrepancies, there is again the more fundame
ntal point. As Fig. 10.2 shows,
Cameroon as a coastal State has never asserted or acted upon the claims
to maritime territory which it
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now makes as a litigant before the Court. 18
10.15 Cameroon attempts to explain away Nigeria's oil practice so far as
it affects maritime delimitation,
19
arguing that it is recent, limited in scope and inconsistent. For example, its Map R24 shows what it
claims to be "recent" Nigerian licences in the northern-most sector (vi
z. OPL 230 and OPL 98). 20It is
true that many concessions currently in force were granted in the last 1
0 years, as shown in the table in
21
Nigeria's Counter-Memorial. But in most cases (including OPL 98 and the western part of OPL 230)
these were re-issues or re-grants after long-established licence areas h
ad been relinquished or
exchanged. Evidently the facts of the matter should be recounted.
10.16 The potential for oil exploration and exploitation off the coasts
of Nigeria and Southern
Cameroons was already clear in the 1950s, and a series of off-shore bloc
ks numbered A through N was
designated in 1959. The most easterly of these, Block N, was never grant
ed. The block immediately to
the north, OML 10, which had been licensed in 1960, was redrawn as OML 1
4 with a smaller area and
relicensed in June 1961. The position at this time can be seen on Fig. 10.3. The exploration licence over
Block M, which included most of what is now OPL 98, was granted to Mobil
Exploration Co. on 30
September 1961. Indeed this appears from the Nigerian note verbale of 27 March 1962 annexed to
Cameroon's Memorial. 22 In the light of this document and of the maps annexed to it, it is baff
ling how
Cameroon can describe this area as the subject of "recent" Nigerian conc
essions. Rather it has been the
subject of a process of licensing, relinquishment, relicensing etc. over
more than 40 years. 23
10.17 It is relevant to recall that, by 1961, the continental shelf doct
rine was well established in
international law, following the adoption of the fourth Geneva Conventio
n of 1958. Coastal States were
well aware by this time of their entitlement to continental shelf based
on appurtenance, and it was
obvious that the initial licensing of off-shore areas was only a first s
tep. In fact the drawing up and
licensing of blocks in the period 1959-1961 was the start of an extended
process by Nigeria, continuous
to the present day. Exactly the same is true of Cameroon, but only with
respect to the confined waters
indicated by the "limit of operations" shown on Cameroon's Map R25, whic
h is essentially the same area
as that indicated in the Nigerian note of 27 March 1962. If, in fact, Ca
meroon had entertained claims to
the extended areas covered by Nigeria's deep water licences, the time to
say so was in the 1960s and
1970s, when the groundwork for so much subsequent development was being
laid down - and not en
revanche, on 16 March 1995, the date of Cameroon's Memorial. In this context it should be stressed that
the licensing process was a public one, and that the existence of the li
cences and of the extensive oil
activity pursuant to them was also open and public. It should also be no
ted that Nigeria was
uninterruptedly a party to the Optional Clause from 3 September 1965, wi
thout any relevant
24
reservation. Cameroon could at any time have brought proceedings before the Court by
the same
device it eventually adopted in 1994, viz., virtually simultaneous acceptance of the Optional Clause and
lodging of an Application, had it wished to challenge Nigeria's oil acti
vities. It did not do so.
10.18 For convenience, the development of licensing by Nigeria, Cameroon
and Equatorial Guinea over
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the period 1962-2000 is shown by a series of maps in the Appendix to thi
s Chapter. The information
contained in these maps is based on data commercially available from the
scouting services and from the
25
published literature. It corresponds generally with the data and maps produced by the respons
ible
Nigerian authorities. It was at all times well-known in oil industry cir
cles.
10.19 It is not necessary to describe the developments in detail. From a
perusal of these illustrative
maps, a number of points can be seen.
(1) Nigeria was first into the field with its offshore Block M and ins
hore Block 14 in the Cross River
Estuary, which were licensed in 1961.
(2) Cameroon followed shortly after (in 1963-4), but at no stage did
it claim any projection to the south-
west beyond the point reached in 1978, which had the approximate co-ordi
nates 4° 3' N, 8° 17' E.
(3) The slight westwards extension of Cameroon licensing in 1978 overl
apped with areas already
licensed and drilled pursuant to Nigerian licences, and it remains the c
ase to the present day that in this
southern area of overlap, all actual oil activity (drilling, exploitati
on) has been Nigerian.
(4) From the 1960s onwards there was very substantial oil activity on
both sides of the dividing line.
(5) Equatorial Guinea began licensing in 1965, up to the notional trip
oint with Cameroon and Nigeria,
although until the 1990s the level of its actual offshore activity was v
ery limited and was much less than
either Nigeria's or Cameroon's.
(6) The areas currently under licence fluctuated from year to year, as
licensees relinquished areas either
because this was required by the terms of the licence or for commercial
reasons. However, both on the
Nigerian and Cameroonian side, relinquishments were followed by relicens
ing, producing over time the
extremely irregular shapes of many licence areas. Despite minor disconti
nuities, there was a continuous
process of licensing, exploration and exploitation, which on the Cameroo
n side was limited in the way
already described but on the Nigerian side was progressive and extending
.
(7) The southern boundaries of the initial Nigerian offshore blocks (
A-M) more or less followed the 200
metre line of depth.27 In the late 1970s, however, Nigeria designated a series of further sout
herly blocks,
with depth well beyond 200 metres, and extending below 3° 30' N. Thes
e eventually became OPL 221,
222 and 223. 28Cameroon neither protested nor responded with any similar claims of its
own. By
contrast as between Equatorial Guinea and Nigeria there were protests on
both sides, both prior to and
during the protracted negotiations described below. 29
(8) There is no record of the Nigerian activity in the period 1962-200
0 being the subject of protest by
Cameroon. 30Nor (with the exception of the incident on Bakassi described at paragr
aphs 10.191-10.195
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of the Counter-Memorial) did Nigeria protest against Cameroon's oil activity in the waters nor
th of
Bioko. On the contrary there is a clear and consistent pattern of acquie
scence by each in the oil activities
31
and practice of the other in their respective maritime areas.
10.20 Of particular significance was the position in 1994. This was the
year of Cameroon's Applications
in the present case, and the year before it lodged its Memorial. A glance at Fig. 10.5 below shows a
limited area of overlap between Nigeria and Cameroon in the north, and a
more substantial area of
overlapping concessions as between Nigeria and Equatorial Guinea in the
south. All the wells shown on
this map as falling within areas of overlap are Nigerian.
10.21 At about this time, Equatorial Guinea began an active process of d
evelopment of its Zafiro field,
to which Nigeria (but not Cameroon) had a claim. A substantial infrast
ructure of wells and pipelines
developed in relation to that field.
10.22 Overall, the offshore infrastructure of the three States appears f
rom Fig. 10.4. That map shows
individual wells drilled (whether dry or not, whether or not now produc
ing), together with other
structures, pipelines etc. For the purposes of this illustration, no bou
ndaries or boundary claims are
shown. Wells and installations are coloured green for Nigeria, pink for
Cameroon and blue for
Equatorial Guinea. Except in the area of the Zafiro field where there is
an evident difficulty in
disentangling a smaller number of Nigerian from a larger number of Equat
orial Guinean installations,
32
the situation portrayed on Fig. 10.4 is relatively clear. It is one of parallel development by the three
States of substantial and valuable infrastructures, each separate and di
stinct from the other. It will be for
Cameroon and Equatorial Guinea to estimate the value of their own infras
tructure shown on Fig. 10.4.
From a Nigerian point of view, taking the area eastwards of 8°E, the
estimated sunk costs of acquisition
of licences, exploration, drilling, installation etc (in current value
terms) would exceed several billion
US dollars. It involves over 500 wells and nearly 40 fixed platforms wit
h the associated infrastructure of
pipelines, processing plants and export facilities.
D. Current Maritime Boundary Agreements
10.23 So far as Nigeria is aware, the position with respect to maritime
boundary agreements as between
itself, Cameroon, Equatorial Guinea and São Tomé e Príncipe is
as follows.
(v) Cameroon
10.24 Nigeria is not aware of any attempt by Cameroon to negotiate or co
nclude maritime boundary
agreements with any of the other States in the Gulf of Guinea. No doubt
Cameroon would have told the
Court about any such attempts.
10.25 The position as between Cameroon and Nigeria in 1993 can be seen f
rom the Minutes of the Third
Session of the Nigeria-Cameroon Joint Meeting of Experts on Boundary Mat
ters, held in Yaounde from
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11-13 August 1993. 33There was extensive discussion at that meeting of the unresolved disput
e over the
34
Maroua Declaration; "after a long and inconclusive discussion", the issue was referred to t
he Heads of
Delegation who decided in turn "to refer the matter to their respective
Heads of State for
35
determination". The Minutes continue as follows:
"It was further observed that attempts by Nigeria and Cameroon to explor
e and exploit
separately the resources straddling the maritime border from Point 1 to
Point G, in part
covered by the Maroua Declaration, have led to avoidable wastage and los
ses for both
countries. In the light of this, the two Heads of Delegation agreed to r
ecommend
arrangements for joint ventures in the exploration and exploitation of t
he resources of the
area.
Concerning exploitation of hydro-carbon resources south of Point G, the
two delegations
confirmed the spirit and the letter of the provisions of the minutes sig
ned in Abuja
between the two delegations on 19 December 1991, in particular, the free
dom of each
country to develop its resources along the border.
In the meantime, the two Heads of Delegation emphasised the need to main
tain a regime
of peace in the area and to prevail on their respective law enforcement
agencies in this
regard.
(B) - DETERMINATION OF THE TRI-POINT BETWEEN
CAMEROON, NIGERIA AND EQUATORIAL GUINEA
The Cameroonian Delegation stressed the need to determine the tri-point
between Nigeria,
Cameroon and Equatorial Guinea in order to enable each of the three coun
tries to exploit
its naturel [sic] resources in the area in peace. It argued that the absence of Equatori
al
Guinea at this forum should not prevent Cameroon and Nigeria from exchan
ging
constructive views on the proposal. It further revealed that there had b
een an exchange of
views between Cameroon and Equatorial Guinea on the subject.
The Nigerian side, on its part, expressed its reservations concerning th
e examination of the
proposal in the absence of Equatorial Guinea. The two parties then agree
d that a tripartite
meeting should be convened to examine the issue of the determination of
the tri-point.
IV - TRANSBORDER CO-OPERATION
(A) MUTUAL UTILIZATION OF TRANSBORDER RESOURCES
Regarding the conclusions reflected in the minutes of the Abuja meeting
of December,
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1991, especially that relating to the need for
either country to inform the other of any initiative to exploit transbor
der resources, the
Cameroonian delegation drew attention to the fact that a special envoy h
ad been
despatched in May, 1993 by His Excellency, Paul Biya, President of the R
epublic of
Cameroon, to his Nigerian counterpart, General Ibrahim Badamasi Babangid
a.
The Cameroonian delegation stated that in spite of the step taken, work
on the Betika
West structure had been stalled as a result of Nigeria's unco-operative
stance. However, it
informed the Nigerian delegation that Cameroon would go ahead to resume
work on the
said structure and explore and exploit the hydro-carbon deposit south of
point G. The
Nigerian delegation noted this information and undertook to refer this m
atter to the
competent authorities for necessary action which would be conveyed back
to the
Cameroonian side through the normal diplomatic channels."
10.26 This passage is significant in a number of respects. It shows clea
rly enough the factual situation
with respect to the maritime boundary as at August 1993. This had the fo
llowing elements:
(1) There was a clear acceptance by the two Parties that there was a de facto maritime border in the area
covered by the Maroua Declaration, even though there was a dispute over
the validity of that Declaration
and over the Bakassi Peninsula itself. 36
(2) Each Party had separately developed its own resources on its own s
ide of that line and (unless
agreement could be reached to the contrary) would continue to do so.
(3) This was equally true for hydrocarbon resources to the south of Po
int "G" which fell on one or other
side of "the border", i.e. the existing border created by long establish
ed usage and practice, irrespective
of the disagreement over the Maroua Declaration itself. It must be stres
sed that Cameroon made no
claim to resources to the west of Point "G". The Betika West structure,
referred to in the passage quoted
above, is located almost exactly south of Point "G". It was at no stage
suggested, in 1993 or at any other
time before March 1995, that existing Nigerian installations to the west
of Point "G" should be
transferred to Cameroon. Yet again the position taken by the competent C
ameroon authorities
contradicts the position subsequently taken by Cameroon before the Court
.
(4) It was hoped that efforts would be made to develop co-operation wi
th respect to hydrocarbon
resources straddling the boundary, to avoid wastage. But in any event, w
hether or not such agreement
was reached, both parties would proceed to exploit resources considered
as theirs.
(5) Even though (by comparison with Nigeria and Cameroon) Equatorial
Guinea's activities in the area
were recent, their legitimacy in principle was not doubted.
(6) There was a need "to determine the tripoint between Nigeria, Camer
oon and Equatorial Guinea in
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order to enable each of the three countries to exploit its natural resou
rces in the area in peace".
In the circumstances, it is a fair inference that, having regard to the
existing and projected measures of
exploitation of hydrocarbons by the three parties, the precise location
of the tripoint was a matter of
detail. That there was such a tripoint was not in doubt. Nor could its general location have b
een doubted.
It must have fallen within the area of overlapping licences and claims s
hown on Fig. 10.5 below.
(vi) Equatorial Guinea-São Tomé e Príncipe
10.27 As noted already, the Treaty of 26 June 1999 between Equatorial Gu
inea and São Tomé e Príncipe
confirms the de facto median line boundary between the islands of Bioko and Príncipe. This
line is
shown on Fig. 10.9 below.
10.28 Nigeria is not aware of any protests by Cameroon against the media
n line boundary established
between Equatorial Guinea and São Tomé e Principe, or of any overl
apping Cameroon licences in the
area of that boundary. Cameroon has mentioned no such protests or licenc
es in its pleadings.
(vii) Nigeria-Equatorial Guinea
10.29 The position between Nigeria and Equatorial Guinea has been the su
bject of extensive discussion
between the two States. As noted above, Nigeria's large Block M was lice
nsed in 1961. 37 The south-
eastern corner of Block M was transected in order to avoid possible encr
oachment on Equatorial Guinea
38
continental shelf to the north-west of Bioko (then Fernando Póo unde
r Spanish colonial rule ). In 1965
a Spanish decree marked out ten blocks, initially numbered 1-10, subsequ
ently renamed as Blocks A-J.
As can be seen from the 1965 map on page 2 of the Appendix, the north-we
stern block (Block 10,
subsequently Block J) was drawn so as to avoid overlap with Nigeria's B
lock M, with a narrow (approx.
1 n.m.) corridor between Nigeria's Block M and Equatorial Guinea's Bloc
k J. By 1970, all of the blocks
around Bioko seem to have been relinquished without being regranted. In
about 1968, Nigerian Block M
was subdivided as part of the process of relinquishment and re-grant, pr
oducing by 1972 essentially the
configuration of licence blocks apparent at the present day. The south-e
ast facing alignments of Blocks
OPL 224 and OML 102 were broadly parallel with the north-westerly limit
of the former Equatorial
Guinea Block J, but with a slight overlap. Subsequently, in 1979, Nigeri
a delineated a further row of
offshore blocks to the south, with the eastern limit at about 8° 7' E
, and a stepped southern limit at
39
around 3° 30' N and below. The south-easterly block was designated OPL 470; it has now become
OPL 221, OPL 222 and OPL 223.
10.30 In 1982, Equatorial Guinea redesignated blocks in certain of the a
reas covered by the Spanish
decree of 1965, 40 and between 1992 and 1999 it successively designated much larger areas
to the west
41
of Bioko, creating a significant area of overlap with existing or projec
ted Nigerian licence areas.
Substantial oil exploration activity occurred, resulting in the major di
scovery of the Zafiro field which
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went on-stream in 1996. The eventual area of overlapping licences can be
seen from the map for 1999 at
page 7 of the Appendix. It should be stressed that all of the wells dril
led in the area of overlapping
licences (shaded light green on the map) are Nigerian, although Equato
rial Guinea protested the drilling
of some of these. This is in sharp contrast with the position of Cameroo
n. Outside of the pleadings in the
present case, it has never made any claim to this area, and it has never
protested any Nigerian licensing
or oil activity in the area presently under consideration. Nor, to Niger
ia's knowledge, has it done so vis-à-
vis Equatorial Guinea.
10.31 As between Nigeria and Equatorial Guinea, there was an obvious nee
d for agreement on their
respective maritime claims, south of any conceivable tripoint with Camer
oon. In particular there was
very substantial pressure from oil licensees on both sides of the bounda
ry for the existing uncertainties
to be resolved. Of particular concern were the areas of overlapping lice
nces in the vicinity of the Zafiro
field, shown in Fig. 10.5. The areas of overlap (Nigeria-Cameroon, Nigeria-Equatorial Guinea) a
re
shown in a lighter colour.
10.32 Initially, Cameroon had agreed with Nigeria that attempts would be
made to establish a tripoint
with Equatorial Guinea, whether by negotiations in the forum of the Gulf
of Guinea Commission or
42
otherwise. These did not materialise and Nigeria went ahead to negotiate with Equa
torial Guinea on
their respective maritime zones. It did so in response to urgent pleas f
rom both the Government of
Equatorial Guinea and the interested oil companies and with a view to re
aching a satisfactory outcome
which would resolve overlaps and uncertainties. These negotiations were
reported in Nigeria's Counter-
43
Memorial.
10.33 In particular, the following discussions and negotiating sessions
were held between delegations of
the two countries in relation to the maritime boundary:
(1) Meeting of Nigerian National Boundary Commission and Equatorial Gu
inean Borders Commission,
Malabo, 27 September 1990;
(2) Nigeria-Equatorial Guinea Transborder Co-operation Workshop, Calab
ar, 23-27 November 1992;
(3) Nigerian National Boundary Commission-Equatorial Guinea Boundary C
ommission, Joint
Committee of Experts, Malabo, 25-28 August 1993;
(4) Nigeria-Equatorial Guinea Joint Sub-Committee of Experts, First Me
eting, Calabar, 16-18 August
1995;
(5) Nigeria-Equatorial Guinea Joint Sub-Committee of Experts, Second M
eeting, Malabo, 13-17
December 1995
(6) Nigeria-Equatorial Guinea Joint Sub-Committee of Experts, Third Me
eting, Port Harcourt, 8-10 May
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apter 10
1996;
(7) Nigeria-Equatorial Guinea Joint Sub-Committee of Experts, Fourth M
eeting, Malabo, 28-31 August
1996;
(8) Nigeria-Equatorial Guinea, Joint Ministerial Committee, Abuja, 30
April-3 May 1997;
(9) Nigeria-Equatorial Guinea, Joint Sub-Committee of Experts/Joint Mi
nisterial Committee, Bata, 23-
28 March 1998;
(10) Nigeria-Equatorial Guinea, Joint Ministerial Committee, Abuja, 2-
3 June 1998, followed by Heads
of State Meeting, Abuja, 3-4 June 1998;
(11) Equatorial Guinea-Nigeria Maritime Boundary Negotiation, London,
4-5 November 1999;
(12) Equatorial Guinea-Nigeria Maritime Boundary Negotiation, London,
2-3 March 2000;
(13) Nigeria-Equatorial Guinea, Special Joint Sub-Committee/Ministeria
l Meeting, London, 29-31
March 2000;
(14) Equatorial Guinea-Nigeria Maritime Boundary Negotiation, London,
19-20 July 2000;
(15) Nigeria-Equatorial Guinea, Joint Ministerial Committee, Abuja, 29
-30 August 2000.
10.34 On 30 August 2000, Nigeria and Equatorial Guinea successfully conc
luded their negotiations for a
partial maritime boundary, i.e. a boundary to the south and west of poin
t (i), with co-ordinates 4° 01'
37.0"N, 8° 16' 33.0"E, chosen in order to avoid touching on areas of
overlapping Cameroon blocks. The
text of the Treaty was initialled by the respective principal negotiator
s on 30 August 2000. It was
subsequently signed by the Presidents of the two States on 23 September
2000 in a formal ceremony at
Malabo. The text of the English version of the Treaty is at Annex NR 174
. The Treaty is subject to
ratification. In accordance with Article 7.3, the Treaty has been provis
ionally applied with effect from
the date of signature. However, unitization arrangements are envisaged f
or any straddling fields, and in
particular for the field straddling the boundary between the Equatorial
Guinea installations in the Zafiro
field and the Nigerian installations in the Ekanga field: see Article 6.
2, and Fig..6. The provisional
application of the Treaty is "subject to review if no arrangements have
been agreed within a reasonable
time in accordance with Article 6.2" (Article 7.3), and in fact it is
understood and agreed between the
two parties that such unitization arrangements are to be entered into pr
ior to the ratification and formal
entry into force of the Treaty. Discussions with a view to agreeing on u
nitization arrangements have
been commenced.
10.35 It is not necessary for present purposes to deal in detail with th
e negotiations between Nigeria and
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Equatorial Guinea. It is sufficient to note the following points:
(1) The parties took into account existing practice along the "traditi
onal usage" line, having regard both
to the history of their licensing and to their existing installations.
(2) They also took into account their respective claims, based on the
one hand on equidistance
(Equatorial Guinea), and on the other hand on a substantial departure
from the equidistance line to
reflect Nigeria's much longer coastal frontage.
(3) Agreement was eventually reached on a three sector approach to the
boundary. In a sector to the
north-west of Bioko (referred to in the negotiations as Sector A), no
attempt would be made to reach
agreement on a boundary bilaterally, having regard to the pendency of th
e present case and Cameroon's
claims based on its practice of overlapping licences. The limit of Secto
r A is defined as a point,
denominated Point (i), with the co-ordinates 4° 01' 37.0" N, 8°
16' 33.0" E.
(4) The Treaty of 23 September 2000 thus makes it clear that the agree
d delimitation is a partial one, and
that the Parties' respective claims to the north and east of Point (i)
are maintained pending the outcome
of the present proceedings. According to Article 3 of the Treaty:
"Northwards and eastwards from Point (i) identified in Article 2 the m
aritime boundary
shall be established by the Contracting Parties, and recorded in a Proto
col to this Treaty,
following completion of the maritime aspects of the case before the Inte
rnational Court of
Justice between the Federal Republic of Nigeria and the Republic of Came
roon,
concerning the land and maritime frontier between them."
(5) A second sector, Sector B, covered that part of the area south-wes
t of Point (i) where Nigeria's and
Equatorial Guinea's opposite coasts were in play, and where both parties
had (to the exclusion of all
other States) substantial and overlapping licences as well as valuable
fields, wells and installations. It
was accepted that Nigeria's longer coastal frontage, taken into account
with other factors including
traditional usage, warranted a substantial movement away from the equidi
stance line. On the other hand
Nigeria recognised the predominant economic interest of Equatorial Guine
a in the Zafiro field, vital as it
is to the economic future of that State. Both Parties accepted that the
eventual line would be one which
45
"safeguards the interests of both Parties, those including wells, conces
sions and installations". In the
event a compromise line was agreed in Sector B which divided the area of
overlapping concessions,
preserving to each Party its existing wells and other installations. Tha
t necessitated an indentation in the
line to maintain on the Nigerian side the Ekanga 1 well.
(6) The consequence of this delimitation of Sector B was, in Nigeria's
view, to "exhaust" the north-
western coastal frontage of Bioko. Sector C thus had to turn southwards
to reflect Nigeria's longer
coastal length and the absence of countervailing activity by Equatorial
Guinea in these waters. Inevitably
the exact configuration of the agreed line in this Sector was a negotiat
ed matter. Beginning at Point (vi)
as defined in Article 2, the line makes a series of turns, keeping on th
e Nigerian side existing wells such
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as Ebwa 1, Anwa 1 and Ukot 1, until it reaches the eventual tripoint wit
h São Tomé e Príncipe.
10.36 Agreement in principle on a maritime boundary in Sectors B and C w
as reached in London on 31
March 2000. The "provisional working line" shown on the map attached to
the Communiqué of that
meeting was described as "a possible eventual boundary line". 46 In fact it closely corresponds to the line
finally agreed. Remaining issues to be resolved included the extent of t
he indentation around the Ekanga
well, and the principle of unitisation of the Ekanga field. These issues
were resolved at subsequent
meetings, leading to the initialling of the Treaty on 30 August 2000, 47and its formal signature by the
respective Heads of State in Malabo, Equatorial Guinea, on 23 September
2000.
10.37 The maritime boundary drawn by the Treaty and described in Article
2 is shown on Fig. 10.7. In
accordance with Article 4 of the Treaty:
"North and west of the maritime boundary established by this Treaty, the
Republic of
Equatorial Guinea shall not claim or exercise sovereign rights or jurisd
iction over the
waters or seabed and subsoil. South and east of the maritime boundary es
tablished by this
Treaty, the Federal Republic of Nigeria shall not claim or exercise sove
reign rights or
jurisdiction over the waters or seabed and subsoil."
10.38 Until the boundary in Sector A is agreed pursuant to Article 3 of
the Treaty, Article 4 will only
operate in respect of the maritime boundary between Points (i) and (x
), as depicted on Fig. 10.7. The
rights and claims of the Parties are reserved in respect of the areas in
Sector A, pending eventual
48
agreement in that Sector as contemplated in Article 3.
10.39 Fig. 10.8 shows the agreed boundary under the Treaty of 2000 in its general conte
xt. Apart from
maintaining on each side of the line existing wells and installations, i
t involves the withdrawal by
Equatorial Guinea of claims based on its equidistance line, and the with
drawal of Nigeria's claims to the
south and east of the agreed line. It will thus enable each of the parti
es to the Treaty to proceed in
security to develop their own maritime areas. At the same time, Article
6 (1) embodies the principle of
co-operation in the exploitation of any future hydrocarbon discoveries w
hich straddle the agreed
boundary line.
10.40 As noted already, the northernmost point on the agreed boundary, P
oint (i), was chosen as a point
falling short of the long-established Cameroon licences. The southernmos
t point, Point (x), is on the
agreed equidistance line between Equatorial Guinea and São Tomé e
Príncipe. That leaves open the
question of negotiations between Nigeria and São Tomé e Príncip
e on their respective maritime
49
boundaries in the south.
10.41 The Treaty signed on 23 September 2000 marks a significant step fo
rward in the established
friendly relations between Nigeria and Equatorial Guinea. The Treaty too
k more than 10 years to
negotiate. The negotiators had to take into account continuing rapid hyd
rocarbon developments during
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that period. In Nigeria's view, the Treaty is a balanced one, helping to
secure stability and development
for both Parties.
(viii) Nigeria and São Tomé e Principe
10.42 Negotiations between Nigeria and São Tomé e Príncipe have
also taken place with a view to the
50
delimitation of their respective maritime zones. In its Law No. 1/98, São Tomé e Príncipe unilaterally
claimed an equidistance line boundary with Nigeria taking as its base-li
ne the north-west facing
archipelagic baseline between its two main islands. In response Nigeria
noted that in its view, its much
longer coastline warranted a substantial adjustment in its favour of the
claimed median line. Nigeria took
the position that it was not prepared to accept the 100 n.m. archipelagi
c baseline drawn between the
islands of São Tomé and Príncipe as if it were a coastal fronta
ge.51 São Tomé e Príncipe, although
anxious to reach an agreement, has not been prepared to accept Nigerian
proposals for a specified
boundary based on giving partial effect to its individual islands.
10.43 The geographical situation of the two States can be seen from Fig.
10.9. This shows the Nigerian
coastline, the islands of São Tomé and Príncipe with their arch
ipelagic baselines, and the equidistance
line claimed by São Tomé e Príncipe in 1998 as its EEZ boundary
vis-à-vis both Nigeria and Equatorial
Guinea. It also shows the agreed maritime boundaries between Nigeria and
Equatorial Guinea and
between São Tomé e Príncipe and Equatorial Guinea.
10.44 Following instructions from their respective Heads of State given
at a summit meeting on 29-30
November 1999, a series of meetings has been held in an attempt to resol
ve the maritime boundary
issues between Nigeria and São Tomé e Príncipe. So far the foll
owing meetings have been held:
(1) São Tomé e Príncipe-Nigeria, Joint Ministerial Meeting/Jo
int Technical Sub-Committee, São Tomé,
15-17 December 1999;
(2) Nigeria-São Tomé e Príncipe, Joint Ministerial Meeting/Jo
int Technical Sub-Committee, Enugu, 7-9
February 2000;
(3) São Tomé e Príncipe-Nigeria, Joint Technical Sub-Committe
e, São Tomé, 26-27 April 2000;
(4) Summit Meeting of the Presidents of São Tomé e Príncipe a
nd Nigeria, São Tomé, 28 August 2000;
(5) Nigeria-São Tomé e Príncipe, Inaugural Meeting of the Joi
nt Technical Committee on the
Establishment of a Joint Development Zone, Lagos, 25-27 September 2000;
(6) São Tomé e Príncipe-Nigeria, Second Meeting of the Joint
Technical Committee on the
Establishment of a Joint Development Zone, São Tomé, 1-2 November
2000;
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(7) Nigeria-São Tomé e Príncipe, Joint Ministerial Committee
on the Establishment of a Joint
Development Zone, London, 16-18 November 2000;
(8) Nigeria-São Tomé e Príncipe, Third Meeting of the Joint T
echnical Committee on the Establishment
of a Joint Development Zone, Lagos, 11-12 December 2000.
10.45 Following earlier discussions, the Presidents of the two States ag
reed in August 2000 that they
should not be seeking to reach agreement on a definitive maritime bounda
ry. Instead, in the interests of
co-operation between the two States and having regard to major unresolve
d differences in their
52
positions, it was desirable to create a joint development zone (JDZ) i
n the area of overlapping claims.
The two Presidents established a Joint Ministerial/Technical Committee t
o draw up detailed provisions
for the JDZ. At the time this Rejoinder was finalised, the Joint Technic
al Committee had met on a
number of occasions, as specified in the preceding paragraph, and was ma
king good progress towards
the conclusion of a JDZ Agreement.
10.46 The area of the proposed JDZ is shown on Fig. 10.10. It may be noted that the easternmost point
of the proposed JDZ (shown as Point (xi) on Fig. 10.10) is 60 n.m. from the nearest points of Bioko and
53
Príncipe, and 117 n.m. from the nearest point of Cameroon (Cape Debu
ndscha). Point (xi) is the
closest to Cameroon of any point within the proposed JDZ.
10.47 It is envisaged that the JDZ will be a long-term arrangement (a m
inimum of 45 years unless
otherwise agreed). This will allow secure investment on the part of the
various companies interested in
the Zone. Following completion of the term of the JDZ, the two Parties w
ould then seek to agree on a
definitive maritime boundary. In the meantime each Party reserves its le
gal position with respect to its
present claims.
10.48 Nigeria provisionally accepts that the areas immediately to the so
uth of the JDZ form part of the
EEZ and continental shelf of São Tomé e Príncipe. On that basis
, the south-facing boundary of the JDZ
would not generate any outer continental shelf of its own. Nigeria's cla
im to an outer continental shelf, in
conformity with Article 76 (4)-(8) of the United Nations Convention
on the Law of the Sea, is thus
limited to the sector to the west of the proposed JDZ, as shown on Fig.
10.10. Nigeria will in due course
formulate that claim in accordance with Annex II of the 1982 Convention.
__________
1 Although Cameroon's Map R21 (RC, Vol. I, p. 411) draws allocation li
nes for the Gulf of Guinea as far south
as Cape Lopez in Gabon, there is no basis whatever for taking Gabon's co
astline into account so far as the
determination of Nigeria's maritime zones is concerned. Accordingly noth
ing needs to be said here about the
position of Gabon.
2 For its own part, Cameroon has been extremely reticent on these issues
, despite asserting vis-à-vis Nigeria a
claim affecting the whole of the Gulf and at least three other States.
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3 See below, paras. 10.34-10.41.
4 See NC-M, para. 20.9 and note 302. For Cameroon's Law 74/16 of 5 Decem
ber 1974 see NC-M Annex 339.
5 RC, paras. 9.02-9.05.
6 It may be noted that France has legislated for a 12 mile territorial s
ea: see Loi no. 71-1060, du 24 décembre
1971, relative à la délimitation des eaux territoriales françai
ses, Journal officiel, 30 décembre 1971, p.12899. It
further legislated for a 200 mile EEZ in Loi no. 76-655 du 16 juillet 19
76 relative à la zone économique au large
des côtes du territoire de la République, Journal officiel, 18 July 1976, p.4299. It did the same for its overseas
dependencies on 25 February 1977 Decrét no. 77-169 du 25 février 1
977; Saint-Pierre-et-Miquelon, Journal
officiel 1977, p. 1102 and on 3 February 1978 for the remaining territories, Dé
crets no. 78-142 and no. 78-149 du
3 février 1978, Journal officiel 11 février 1978, p. 683-8. See also décret no 99-324, 21 April 19
99 defining the
straight baselines around Martinique and Guadeloupe, Journal officiel 29 avril 1999, p.6392. Surely such
legislation would have been necessary in any event, even if France had b
een or become a party to the Law of the
Sea Convention at the same time as it asserted a 12 mile territorial sea
.
7 Re Law on the Voluntary Termination of Pregnancy, France, Constitutional Council, 15 January 1975,
reproduced in English in I.L.R. 74, p. 525.
8 Nigeria understands that the United States (not a party to the 1982 C
onvention) has pressed Cameroon to repeal
its declaration of a 50 mile territorial sea, but so far without effect.
None of the other States in the region have
seen fit to rely on the self-executing effect of the 1982 Convention in
terms of their maritime claims: see e.g. São
Tomé e Príncipe's Law No. 1/98 on the delimitation of the territor
ial sea and the exclusive economic zone (1998),
NC-M Annex 340, enacted after the 1982 Convention came into force for th
at State.
9 See RC, paras. 9.08-9.18.
10 For the status of Equatorial Guinea in the present proceedings see be
low, paras. 11.6-11.10.
11 See below, paras. 10.32-10.37. In the meantime the Treaty is being pr
ovisionally applied, in accordance with
Article 7 (3).
12 See NC-M, para. 20.11, note 303.
13 See Annex NR 172 for the text of this Agreement.
14 See below, paras. 10.40-10.46.
15 See NC-M, paras. 20.13-20.17.
16 See RC, paras. 5.11-5.16.
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17 RC, p. 437, Map R25.
18 As noted in para. 3.349 above, citing Sir Gerald Fitzmaurice, greater
value is "attributable to a State's acts and
conduct than to its professions". This is particularly so when the profe
ssions take the form of pleadings.
19 See e.g. RC, para. 9.19.
20 RC, p. 433, Map R24.
21 See NC-M, para. 20.14.
22 Annex MC 229, with attached map.
23 It is true that a small wedge-shaped area of former Block N remained
mostly unlicensed until 1970. This was
the area referred to in Nigeria's note verbale of 27 March 1962 (Annex MC 229): there is no record of Cameroon
replying to that note. The small area in question was licensed by Nigeri
a in 1970, as can be seen from the 1970
map in the Appendix to this Chapter.
24 See United Nations, Treaty Series, Vol. 544, p. 113.
25 See in particular the Bulletin of the Association of American Petroleum Geologists for the relevant years.
Copies of the relevant entries have been deposited with the Court.
26 See Fig. 10.1, above.
27 cf. Geneva Convention on the Continental Shelf, 1958, Article 1, with its b
asic criterion of a 200 metre depth
limit subject to extension outwards "to where the depth of the superjace
nt waters admits of the exploitation of the
natural resources of the said areas". In extending its licensing seaward
s in the late 1970s, Nigeria was acting in
accordance both with Article 1 of the 1958 Convention (to which it acce
ded in 1971) and also in accordance with
new developments in the law of the sea associated with UNCLOS III. Camer
oon's failure to act at this time is
equally clear.
28 See Appendix, p. 8.
29 See below, para. 10.33.
30 This is confirmed by Cameroon itself: RC, para. 5.234.
31 There was one minor discrepancy. In 1972, a Cameroon licensee drilled
a well (Kita M-1) slightly to the west
of the "limit of operations". The well was a failure and the area is not
now claimed by Cameroon. It is the
isolated Cameroon well shown (in purple) on Fig. 10.4, to the west of
the Nigerian pipeline which is in green. Its
co-ordinates are approximately 4° 25' N, 8° 23' E.
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apter 10
32 For greater detail on the juxtaposition of Nigerian and Equatorial Gu
inean wells in the Zafiro area, see Fig.
10.8 below.
33 Annex NR 173.
34 See also above, Chapter 3, para 3.35 and Annex NPO 55.
35 ibid., p. 5.
36 Earlier in the same document, the Heads of Delegation are reported as
having observed that:
"the grounds of disagreement between Nigeria and Cameroon over the Marou
a Declaration of
1975 are more political than technical. In order not to hinder the furth
ering of the existing
excellent relations between the two nations, they resolved to refer the
matter to their respective
Heads of State for determination."
In effect, the Heads of Delegation in 1993 confirmed that questions of e
xploitation of maritime resources by the
two States would proceed as technical questions, irrespective of the "po
litical" disagreement over the Maroua
Declaration.
37 See above, para. 10.16 and Fig. 10.3.
38 The Spanish territory of Río Muni and Fernando Póo became indep
endent as Equatorial Guinea in 1968.
39 See Appendix, p. 4, 1979 Map.
40 See Appendix p. 5, 1982 Map.
41 See Appendix pp. 6, 7: 1992-1999 Maps.
42 See above, para. 10.25.
43 NC-M, para. 20.12.
44 The negotiations and eventual conclusion of the Agreement were freely
reported in the press. See e.g.
"Nigeria settles offshore oilfield dispute", Financial Times, 26 September 2000: Annex NR 175. Copies of the
Treaty were deposited with the Legal Office of the Treaty Section at the
UN and with the Registrar of the Court.
45 Equatorial Guinea-Nigeria Maritime Boundary Negotiations, London, 2-3
March 2000, Joint Communiqué:,
Annex NR 176.
46 See Equatorial Guinea-Nigeria Maritime Boundary Negotiations, London,
29-31 March 2000, Joint
Communiqué, para. 6: Annex NR 177, and the attached map.
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apter 10
47 See Nigeria-Equatorial Guinea Maritime Boundary Negotiations, Abuja,
29-30 August 2000, Joint
Communiqué, para. 3: Annex NR 178.
48 For the text of Article 3 see above, para. 10.35(4).
49 See below, paras.10.42-10.48.
50 Annex NC-M 340.
51 For an analysis of the archipelagic claims of São Tomé e Prí
ncipe under its Decree Law No. 14/78 of 16 June
1978 see United States Department of State, Office of the Geographer, Archipelagic Straight Baselines: Sao
Tome and Principe (Limits in the Seas, No. 98, Washington, 1983). The islands themselve
s have a north-west-
facing coastal frontage of 27.8 n.m.
52 São Tomé e Príncipe and Nigeria, Joint Communiqué, São
Tomé, 28 August 2000: Annex NR 179.
53 Point (xi) is 122 n.m. from the Bakassi Peninsula and 133 n.m. from
Campo (the location of Debundscha and
Campo is shown on Fig. 12.1 below).
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apter 10 Appendix
PART IV
THE MARITIME BOUNDARY
CHAPTER 10
APPENDIX
Licensing History Maps
This Appendix contains a series of maps showing the licensing history in
the Nigeria-Cameroon-
Equatorial Guinea area.
The maps are based on published data contained in the American Associati
on of Petroleum Geologists
(AAPG) annual yearbooks until the late 1970s, historical maps supplied
by the Nigerian Department of
Petroleum Resources (DPR), and on data supplied by HIS Energy (former
ly Petroconsultants).
Best efforts have been applied to ensure the accuracy and completeness o
f the licence data. Lack of
access to original data inevitably means that there may be some uncertai
nties, errors and inaccuracies.
Wells are shown in the year in which they were drilled.
Each map represents the licensing position at the end of the calendar ye
ar.
Contents
Licensing History For the Years
1960 1980
1961 1981
1962 1982
1963 1983
1964 1984
1965 1985
1966 1986
1967 1987
1968 1988
1969 1989
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apter 10 Appendix
1970 1990
1971 1991
1972 1992
1973 1993
1974 1994
1975 1995
1976 1996
1977 1997
1978 1998
1979 1999
1980 2000
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apter 11
PART IV
THE MARITIME BOUNDARY
CHAPTER 11
EXTENT OF THE COURT'S JURISDICTION
IN THE PRESENT PROCEEDINGS
A. Introduction
11.1 In Chapter 22 of its Counter-Memorial, Nigeria dealt with a range of questions under the rubric
"The Issues for the Court at this Stage of the Proceedings". Since that
time, there have been a number of
relevant developments. Equatorial Guinea has sought and been granted per
mission to intervene. The (as
yet unratified) Treaty of 23 September 2000 between Nigeria and Equator
ial Guinea has brought some
additional certainty to the situation - contingently, of course, upon th
at Treaty being ratified by both
Parties. In its Counter-Memorial, Nigeria had also envisaged the possibility that Cameroon might
1
specify and clarify its global claim in such a way as to make it admissi
ble.is has not happened:
although Cameroon's maps are more precise, 2 its claim is even less clear than it was. But Cameroon has
4
made extensive and unusual remarks about the position of third States, and these too require some
comment.
B. The Extent of the Court's Jurisdiction over the Case
11.2 It will be recalled that, in joining Nigeria's Eighth Preliminary Objection to the merits, the Court
said:
"The Court notes that the geographical location of the territories of th
e other States
bordering the Gulf of Guinea, and in particular Equatorial Guinea and Sã
o Tomé and
Príncipe, demonstrates that it is evident that the prolongation of th
e maritime boundary
between the Parties seawards beyond point G will eventually run into mar
itime zones
where the rights and interests of Cameroon and Nigeria will overlap thos
e of third States.
It thus appears that rights and interests of third States will become in
volved if the Court
accedes to Cameroon's request. The Court recalls that it has affirmed, '
that one of the
fundamental principles of its Statute is that it cannot decide a dispute
between States
without the consent of those States to its jurisdiction' (East Timor (Portugal v. Australia)),
Judgment, I.C.J. Reports 1995, p. 101, para. 26). However, it stated in
the same case that,
'it is not necessarily prevented from adjudicating when the judgment it
is asked to give
might affect the legal interests of a State which is not a party to the
case' (ibid., p. 104,
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apter 11
para. 34)...
In order to determine where a prolonged maritime boundary beyond point G
would run,
where and to what extent it would meet possible claims of other States,
and how its
judgment would affect the rights and interests of these States, the Cour
t would of
necessity have to deal with the merits of Cameroon's request. At the sam
e time, the Court
cannot rule out the possibility that the impact of the judgment required
by Cameroon on
the rights and interests of the third States could be such that the Cour
t 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 States
would choose to exercise their right to intervene in these proceedings p
ursuant to the
5
Statute remains to be seen."
11.3 In its Reply, Cameroon argues that, although Equatorial Guinea may not be a party to
the case as
such, its intervention allows the Court to deal with Cameroon's claim to
its full extent. 6 In effect, it
argues, the Court will simply be concluding a treaty in lieu of the part
ies doing so: "the consequent
7
delimitation will not be less than if it had been conventionally fixed".
This misrepresents the role of the
Court in relation both to the parties and the non-parties, and is wholly
out of line with the Court's own
approach.
11.4 The view that in maritime delimitation cases the Court simply subst
itutes its judgment for the treaty
that might have been agreed on a bilateral basis between the two States
(the "mandate" theory of
adjudication) has been expressly rejected. As a Chamber of the Court sa
id in the Burkina Faso/Mali case:
"in continental shelf delimitations, an agreement between the parties wh
ich is perfectly
valid and binding on the treaty level may, when the relations between th
e parties and a
third State are taken into consideration, prove to be contrary to the ru
les of international
law governing the continental shelf (see North Sea Continental Shelf, I.C.J. Reports 1969,
p. 20, para. 14; pp. 27-28, paras. 35-36). It follows that a court deal
ing with a request for
the delimitation of a continental shelf must decline, even if so authori
zed by the disputant
parties, to rule upon rights relating to areas in which third States hav
e such claims as may
contradict the legal considerations - especially in regard to equitable
principles - which
would have formed the basis of its decision." 8
11.5 Cameroon's arguments on the point raise three issues: (a) the sta
tus of Equatorial Guinea in the
present proceedings; (b) the extent of the Court's powers in maritime
delimitation cases to affect areas
claimed by third parties, and (c) the application of these rules to th
e present case.
(i) The status of Equatorial Guinea in the present proceedings
11.6 It is clear from the terms of Equatorial Guinea's intervention that
it does not seek to become a party
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to the substantive proceedings. Rather it sought to intervene to protect
its rights and to inform the Court
(from its point of view) as to the extent of those rights. The Court f
or its part accepted this position
when, in its Order of 21 October 1999, it allowed Equatorial Guinea's ap
plication to intervene "to the
9
extent, in the manner and for the purposes set out".
11.7 The position is accordingly clear, but Cameroon seeks to confuse it
. Arguing a contrario from the
Libya/Malta case, it asserts that:
"where the Parties do not oppose the intervention and where the latter i
s admitted, as in
the present case, the opposite solution should prevail and the Court may
(and should, in
accordance with the mission incumbent upon it definitively to settle the
disputes referred
to it) proceed to a complete delimitation, whether or not the latter is
legally binding on the
intervening party, a point on which it does not appear to be essential f
or Cameroon to
10
pronounce."
Fortunately, perhaps, it is not necessary for Cameroon to "pronounce" on
these matters because the
Court has already done so, and in the contrary sense.
11.8 First, the Court in Libya/Malta neither said nor implied that, if Italy had been permitted to
intervene, the Court could have decided on areas claimed by Italy. What
the Court said was as follows:
"It is true that the Parties have in effect invited the Court... not to
limit its judgment to the
area in which theirs are the sole competing claims; but the Court does n
ot regard itself as
free to do so, in view of the interest of Italy in the proceedings... A
decision limited in this
way... signifies simply that the Court has not been endowed with jurisdi
ction to determine
what principles and rules govern delimitations with third States, or whe
ther the claims of
11
the Parties outside that area prevail over the claims of those third Sta
tes in the region."
It should be stressed that the Court treated this as a matter going to i
ts jurisdiction, not as a merely
prudential question. Precisely the same considerations apply here.
11.9 Secondly, Cameroon seeks to avoid this result by implying that the
Court has acquired further and
additional jurisdiction by reason of Equatorial Guinea's intervention. B
ut this is not so. The Court's
jurisdiction remains one between the original parties, unless the interv
enor is accepted as a party
properly so-called, which is not the case here. A non-party intervenor i
s not bound by the substantive
decision of the Court in the case in question: this follows expressly fr
om the terms of Article 59, and
from the proposition that an intervenor is not one of the "parties" in t
he sense of Article 59. As the
Chamber held in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salv
ador/
Honduras):
"a State permitted to intervene under Article 62 of the Statute, but whi
ch does not acquire
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the status of party to the case, is not bound by the Judgment given in t
he proceedings in
which it has intervened". 12
11.10 Two further points need to be briefly mentioned.
(1) First, Cameroon argues that "the Court would consider that if Equa
torial Guinea and São Tomé-e-
Principe intervened, this objection would have to be rejected". 13The relevant passage is set out in
paragraph 11.2 above. The Court said nothing of the kind. After acknowle
dging the possibility "that the
impact of the judgment required by Cameroon on the rights and interests
of 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", the Court
went on to mention the possibility of intervention. It did so, quite pro
perly, in completely neutral terms.
It did not know at that stage whether there would be an intervention, fo
r what purpose, and what the
reaction of the Parties to that intervention would be. To read into this
passage the anticipatory rejection
of the Eighth Preliminary Objection 8 is quite unfounded.
(2) Secondly, Cameroon argues that São Tomé e Príncipe's non-
intervention in the proceedings places it
14
in a different position: apparently the Court has more power over areas claimed by the intervene
r,
Equatorial Guinea, than over the non-intervener, São Tomé e Prí
ncipe. Again this flies in the face of
what the Court has actually said, for example in the cases cited above.
It is a perfectly legitimate use of
Article 62 for a State to intervene as a third party exclusively to info
rm the Court as to its legal position
or claims. 15Any other conclusion would be a powerful disincentive to intervention. 16
(ii) The extent of the Court's powers with respect to maritime zones c
laimed by third States: in general
17
11.11 Nigeria summarised the extensive case-law on this question in its
earlier pleadings, and has little
to add to this discussion. To complete the picture, it is necessary only
to mention the recent decision of
the Arbitral Tribunal in the Yemen-Eritrea case (Second Phase). The question there was the extent to
which the maritime boundary between the parties should be extended up to
the notional tripoint with
Saudi Arabia. The Tribunal noted the possibility that "it might prejudic
e other boundary disputes with
neighbouring countries". In particular, it noted that:
"The Kingdom of Saudi Arabia indeed had written to the Registrar of the
Tribunal on 31
August 1997 pointing out that its boundaries with Yemen were disputed, r
eserving its
position, and suggesting that the Tribunal should restrict its decisions
to areas `that do not
extend north of the latitude of the most northern point on Jabal al-Tayr
island'. Yemen for
its part wished the determination to extend to the latitude of 16° N,
which is the limit of its
so-called northern sector. Eritrea on the other hand stated that it had
'no objection' to the
Saudi Arabian proposal.
...
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At the southern end of the line, as it approaches the Bab-al-Mandab, the
re is the
complication of the possible effect upon the course of the boundary line
of the Island of
Perim. This question might clearly involve the views of Djibouti. It fol
lows that the
Tribunal's line should stop short of the place where any influence upon
it of Perim Island
would begin to take effect." 18
In its final award on the maritime boundary, the Tribunal adopted a cons
ervative approach. It said:
"Reference has been made above to the need not to extend the boundary to
areas that
might involve third parties. The points where the decision of the Tribun
al halts the
progress of the boundary line are, for the northern end, turning point 1
and, for the
southern end, point 29. The effect can, of course, also be seen on the i
llustrative Charts 3
and 4 in the map section of the Award. The Tribunal believes that these
terminal points
are well short of where the boundary line might be disputed by any third
State." 19
The effect of its determination can be seen from the map annexed to the
award. The Court stopped its
definitive delimitation "well short of where the boundary line might be
disputed by any third State." Its
beginning and end-points are securely within the control of base-points
on the territory of the two States
parties. The same cannot be said of the great majority (over 80%) of t
he points along the Cameroon
claim line.
C. The extent of the Court's jurisdiction in the present case
11.12 In accordance with the decisions referred to in the previous secti
on, and with basic principle, the
Court has no jurisdiction in the present case over the Cameroon claim to
the extent that it touches on or
affects areas actually claimed by third States. Moreover that jurisdicti
on is not affected by whether the
third State in question has intervened or not, unless it has intervened
with a view to becoming a party to
the proceedings and its intervention has been accepted on that basis, wh
ich is not the case here. The
Court may be better informed as to the extent of the claims of the third
party, but it has no additional
substantive jurisdiction over the third party by reason of such an inter
vention.
11.13 Turning to the facts of the present case, the position can be seen
from Fig. 11.1. This shows the
two versions of the Cameroon claim line (the more extreme textual claim
and the claim shown in its
graphics). It also shows the Equatorial Guinea equidistance line and th
e boundary provisionally
established by the Treaty of 23 September 2000. It will be seen that bot
h versions of the claim line enter
territory presently claimed by Equatorial Guinea under its equidistance
claim just south of 4° N, and that
thereafter all the graphical claim line, and most of the textual claim l
ine, runs through Equatorial Guinea
waters.
11.14 If and when the Treaty of 2000 is ratified, the position will chan
ge to a degree. Cameroon's more
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extreme textual claim enters Equatorial Guinea waters at approximately 3
° 49' N 7° 58' E and runs
through those waters for approximately 20 kilometres (11 n.m.) before
emerging back into Nigerian
waters around the location of the Nigerian Ebwa well. By contrast the cl
aim as depicted on Cameroon's
maps, striking Equatorial Guinea maritime zones slightly further to the
north-east, thereafter runs
entirely through Equatorial Guinea waters (except for a short "escape"
around 3°N) before entering the
area of the projected São Tomé e Príncipe-Nigeria joint develop
ment zone.
11.15 It should be noted again that Cameroon's claim should not be treat
ed as if it were a mere line. No
State has a "line" as a maritime zone. Cameroon's failure to tell the Co
urt the extent of its claim cannot
be allowed to obscure the issue, and a claimant State in litigation cann
ot be allowed to benefit from its
own non-disclosure to obtain what would amount to ulterior advantages, w
hether against the other party
or third States. In this regard, it should be stressed that, since Camer
oon's method of sharing out Gulf
waters takes no account of the coastal frontages of Bioko or São Tomé
e Príncipe, 21 it is impossible to
use its method to calculate implied maritime zones for those island Stat
es. The Court is left completely
in the dark as to Cameroon's intentions. Cameroon assures us they are "m
odest": 22they are certainly
well covered up.
11.16 Let us assume for the sake of argument, however, that Cameroon cla
ims a "modest" frontage of 12
nautical miles of EEZ and continental shelf to the east of its claim lin
e. On that basis, its more extreme
textual claim line entails a claim to 10 n.m.² (34 km 2) of Equatorial Guinea waters, strategically located
between the Zafiro and Berilo fields. The less extreme graphical claim l
ine implies a claim to a huge
swathe of Equatorial Guinea waters: about 990 km 2 (290nm ).
11.17 It is obvious that, however expressed, Cameroon's claim is inadmis
sible to the extent that it
touches on waters claimed by a third State. The Court has no jurisdictio
n beyond that point. There
cannot possibly be a dispute over areas of maritime territory which Nige
ria does not claim, and the
Court cannot decide as between Nigeria and Cameroon that certain areas a
ppertaining to or claimed by
Equatorial Guinea belong to Cameroon. Moreover it is not enough to say,
as Cameroon does, that such a
23
decision is not binding on Equatorial Guinea or São Tomé e Prín
cipe. Cameroon will face those States
asserting a claim backed with the authority of the Court.
11.18 In consequence, as things stand (the Treaty of 23 September 2000
not having been ratified),
Cameroon's claim is beyond the jurisdiction of the Court, and/or inadmis
sible, south of the point where
its claim line meets the proclaimed Equatorial Guinea median line. If (
as Nigeria hopes and intends) the
Treaty is ratified prior to the Court's decision in the present case, th
e point at which Cameroon's claim
becomes inadmissible will change to the new line of the Nigeria-Equatori
al Guinea boundary around the
area of the Zafiro-Ekanga field. To the north of that line, Cameroon's c
laim will not be inadmissible by
reason of its direct impact on a third State, Equatorial Guinea. Nigeria
explains in the following two
Chapters why, in its view, that claim is nonetheless substantively inadm
issible and unjustified under
international law.
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11.19 Furthermore once the Court has lost jurisdiction by reason of the
fact that Cameroon's claim lies
against a third State, that jurisdiction is not recovered merely because
(in its more extreme form) the
claim line emerges narrowly back into Nigerian waters further south. A d
ecision of the Court attributing
24
to Cameroon the Nigerian licence areas south of the Ebwa and Ukot wells would imply, necessarily
and unequivocally, that there is also as a matter of international law a
continuous band of Cameroon
maritime zone running through waters claimed by Equatorial Guinea, from
the point of entry into those
waters until the point of exit. The situation would be essentially the s
ame as that in the Case concerning
Monetary Gold removed from Rome. 25 In that case, the Court could only have awarded the gold to Italy
as against the three respondent States on the basis of a prior decision
that Albania (a non-party) owed
equivalent sums to Italy. In the present case the Court could only award
these southern areas to
Cameroon as against Nigeria on the prior basis that they were a continua
tion of areas immediately to the
north which, though claimed by Equatorial Guinea, in law belonged to Cam
eroon. After all, Cameroon's
entitlement to maritime territory could have come to an end somewhere be
tween the point of entry into
and exit from Equatorial Guinea waters. If it had come to an end, Camero
on could have no claim to
areas further south. Cameroon obviously could not assert an "enclave" of
Cameroon maritime territory
to the south: maritime territory, to the extent that it exists, is conti
nuous from the relevant coastal
frontage. Thus a decision by the Court attributing these areas to Camero
on against Nigeria would carry
with it, as a necessary and inescapable prerequisite, the determination
that areas claimed by Equatorial
Guinea were allocated to Cameroon. 26 The Court would be deciding, unavoidably, on the entitlement of
Cameroon against Equatorial Guinea.
11.20 For all these reasons, it is respectfully submitted that the Court
has no jurisdiction over the
Cameroon maritime claim from the point at which Cameroon's claim line en
ters waters claimed by, or
recognised by Nigeria as belonging to, Equatorial Guinea.
D. The Absence of Negotiations on Cameroon's Global Claim
11.21 In its Seventh Preliminary Objection, Nigeria noted that the primary (and certainly the initial)
obligation of parties to a maritime boundary dispute was to seek to reso
lve that dispute by negotiation,
and it noted that (except as to the inshore boundary) there had been n
o attempt whatever by Cameroon to
offer to negotiate on its claim. The Court has, nonetheless, upheld its
jurisdiction in relation to the
27
maritime boundary under the Optional Clause. Nigeria of course accepts that decision. But the Court's
jurisdiction is a separate question from the substantive law applicable
to the dispute, and that law is still
to be found in articles 74 and 83 of the 1982 Convention on the Law of t
he Sea.
11.22 Articles 74 (1) and 83 (1) of that Convention require that the
parties to a dispute over maritime
delimitation (whether of EEZ or continental shelf) should first attemp
t to resolve their dispute by
negotiation. One of the reasons for these rules, which are substantive r
ules in the body of the Convention
rather than in Part XV, is that in a matter as delicate and uncertain as
maritime delimitation, agreement
is the best method of resolving disputes. It enables each party to engag
e in a dialogue with the other, and
to explore the extent and intensity of the claims of the other party wit
h a view to reaching a settlement.
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In many maritime boundary negotiations this process involves dozens of m
eetings of commissions and
28
expert groups and takes a considerable number of years. Two rounds of written pleadings in a case
brought without notice or attempt at negotiation is no substitute for su
ch a process.
11.23 Nigeria accepts that, to the extent that the dispute over the mari
time boundary pertains to areas
around Point G and indeed to the areas of overlapping licences, 29 the requirements of Articles 74 (1) and
83 (1) have been satisfied. But the Cameroon ambit claim to waters to
the south of 4° N and 3° N and
even 2° N has never been the subject of the slightest attempt at negotiation, with Nigeria
or (as far as
Nigeria is aware) with any other affected State. The further south the
claim line proceeds the more
30
obvious its failure becomes. Cameroon refuses in advance to have any neg
otiations, but especially in
relation to these southerly areas, that refusal itself is a clear failur
e to comply with the requirements of
Articles 74 (1) and 83 (1). Cameroon cannot be allowed to benefit fr
om its refusal to negotiate by calling
on the Court to deal with these areas. For these reasons, Nigeria mainta
ins the submission that
Cameroon's claim, beyond the area of overlapping licences or, in any eve
nt, to the extent that it concerns
areas to the west and south-west of Bioko, is inadmissible.
E. The Order of Issues in the Proceedings
11.24 Nigeria has on several occasions made the point that it would be a
more orderly procedure to deal
first with the dispute over the Bakassi Peninsula, without which it is d
ifficult if not impossible to resolve
the maritime dispute concerning the waters south of Bakassi. In its Judg
ment on the Preliminary
31
Objections, the Court accepted the latter proposition, but noted that it was "for the Court to arrange the
order in which it addresses the issues in such a way that it can deal su
bstantively with each of them". 32
Nigeria leaves it for the Court to decide on this procedural matter in d
ue course.
__________
1 NC-M, paras. 23.4, 23.23.
2 Compare NC-M, Fig. 20.2 with RC, Map R21.
3 See above, paras. 9.3-9.9.
4 RC, paras. 9.118-9.153.
5 I.C.J. Reports 1998, p. 324 (para. 116).
6 RC, para. 9.147.
7 RC, para. 9.135.
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8 Frontier Dispute I.C.J. Reports 1986 p. 578 (para. 47).
9 Order of 21 October 1999, para. 18.1.
10 RC, para. 9.147.
11 I.C.J. Reports 1985, pp. 25-26 (para. 21).
12 I.C.J. Reports 1992, p. 609 (para. 423).
13 RC, para. 9.148.
14 RC, para. 9.150.
15 Thus in the Continental Shelf case between Tunisia and Libya, there was no jurisdictional link between
the
parties and Malta, which sought to intervene not in order to become a pa
rty but to inform the Court. The Court
held that this "direct yet limited form of participation in the subject-
matter of the proceedings... could properly be
admitted as falling within the terms of... intervention" under Article 6
2: I.C.J. Reports, 1981, p. 19 (para. 34).
16 It would not be surprising if São Tomé e Príncipe had been d
eterred from intervening by these, wholly
unwarranted, assertions by Cameroon. As for Equatorial Guinea, if the Co
urt were to take Cameroon's line, it will
wish it had not intervened.
17 See NPO, ch. 8; NC-M, paras. 22.7-22.10.
18 Award of 17 December 1999, paras. 44, 46.
19 ibid., para. 164.
20 Annex NR 180.
21 As shown below, para. 12.17.
22 MC, para. 5.126.
23 RC, para. 9.129.
24 These wells are shown on Fig. 11.1.
25 I.C.J. Reports 1954, p. 19. This decision was approved by the Court i
n the Certain Phosphate Lands in Nauru
case, I.C.J. Reports 1992, p. 240 and applied by it in the East Timor case I.C.J. Reports 1995, p. 90.
26 As the Court explained in the Phosphate Lands case, the Monetary Gold principle applies wherever a decision
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by the Court on the rights of a third party is a necessary prerequisite
for a decision as between the parties to the
case: I.C.J. Reports 1992, p. 261 (para. 55).
27 I.C.J. Reports 1998, pp. 321-322 (para. 109). The Court went on to
hold that in the circumstances the dispute
was "precise enough for it to be brought before the Court": ibid., p. 322 (para. 110).
28 As it has done with Equatorial Guinea: see above, para. 10.33.
29 As shown in Fig. 10.2.
30 RC, para. 9.39.
31 I.C.J. Reports 1998, p. 320 para. 106 ("The Court accepts that it wi
ll be difficult if not impossible to determine
the delimitation of the maritime boundary between the Parties as long as
the title over the Peninsula of Bakassi
has not been determined").
32 ibid.
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PART IV
THE MARITIME BOUNDARY
CHAPTER 12
CAMEROON'S CLAIM TO THE GLOBAL APPORTIONMENT
OF THE GULF OF GUINEA
A. Introduction
12.1 In this Chapter, Nigeria will analyse and refute Cameroon's claim t
o an extended EEZ and
continental shelf, 200 miles and more out into the Gulf of Guinea, havin
g regard to the general
geographical and political situation in the Gulf, and to the fact that n
either Equatorial Guinea nor São
Tomé e Príncipe are parties to the present case. This analysis wil
l show:
(1) that Cameroon's claim to a "global" apportionment of maritime zone
s in the Gulf of Guinea is
inadmissible in these proceedings;
(2) that, in any event, that claim is unsustainable as a matter of int
ernational law;
(3) that, even if (quod non) the Court were to grant to Cameroon a line projecting across Nigeria'
s
coastal frontage out to 200 n.m., Cameroon has no claim to an outer cont
inental shelf in terms of Article
76 of the 1982 Convention.
12.2 A preliminary point, of which Cameroon makes much in its pleadings,
concerns the identification
and relevance of the so-called "critical date", i.e. the date at which t
he dispute can be said to have
crystallised. It needs to be stressed that in the present case that conc
ept has even more than its usual,
relative, significance. In the absence of express agreement to that effe
ct, a State is not obliged to refrain
from carrying on existing activities in relation to an area under disput
e, and the very continuity of its
administration before and after the dispute arose may be legally relevan
t. Moreover, a claimant State
cannot take advantage of some minor or incidental disagreement at an ear
lier date to "freeze" the general
legal situation as between the parties, and thus to cover up its own fai
lure to protest or reserve its
1
position in response to that situation.
12.3 These observations are of particular relevance here. As was shown i
n Chapter 10, the area of
overlapping licences to the north of Bioko arose in 1978, not long after
the disagreement over the
Maroua Declaration. 2 There was clearly from that time a dispute between the two States over
this area of
overlap, and generally over their maritime boundary northwards from the
limit of overlapping licences
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(at approximately 4° 3' N, 8°17' E). There was also an awareness
that the two States had still to conclude
a maritime boundary delimitation treaty in the waters south of Bakassi,
and that this could not be done
until the dispute over Bakassi was resolved. That was how things stood t
hroughout the 1980s and up
until Cameroon lodged its first Application on 29 March 1994. Moreover the situation was not changed
by the Cameroon Application, which was entirely unspecific as to the maritime boundary. During the
entire period from 1978 to 1994, there was no protest by Cameroon at any
developments associated with
waters beyond the areas of overlapping licences, and no formulation of a
claim bearing any resemblance
whatever to any version of the claim line now variously asserted by Came
roon. This is clear, for
example, from the discussions between the parties on maritime issues in
1993, already described. 3 Those
discussions would have been very different if Cameroon had made a claim
to a westerly and southerly
projection out to 200 n.m. and beyond, involving the transfer of existin
g wells and installations and long-
standing Nigerian licence areas.
12.4 Accordingly, and to the extent that the concept has any value in th
e present proceedings, the
"critical date" for Cameroon's extended maritime claim can be given very
precisely. It was 16 March
1995, the date at which Cameroon's new claim to an extended maritime zon
e beyond the area of
overlapping licenses was first made public in its Memorial. Actually, even if 1979 were the "critical
date", as Cameroon alleges, 4 the position would hardly alter. By that date, as already shown in Chap
ter
10 and in further detail in Chapter 13, Nigeria's oil activity in the di
sputed area was already well-
established, public, peaceful and unopposed by Cameroon. It is true that
Nigeria continued to develop
and extend its oil operations west and south-west of Bioko throughout th
e 1980s and 1990s. 5 But to seek
to dismiss that activity, as Cameroon does, by reference to assertions o
f a "critical date" in the late 1970s
is to confuse a specific dispute which arose publicly at that time with
a quite different and much less
credible ambit claim first made in 1995. 6That ambit claim is the focus of this Chapter; the more specific
dispute is discussed in Chapter 13.
B. Cameroon's Approach of "Global Reapportionment"
12.5 Cameroon protests that its approach, as sketched for the first time
in its Memorial and now mapped
7
in its Reply, does not involve the "reapportionment" of maritime areas or "refashion
ing geography". But
it protests too much,8 and the position is clear. Relevant passages from Cameroon's Memorial have
9
already been cited. The position has not changed in Cameroon's Reply, as will now be shown.
12.6 Cameroon's argument is global and redistributive in three different
ways: first, in the geographical
setting Cameroon selects as "relevant" for the purposes of its dispute w
ith Nigeria; secondly, in terms of
the "problem" which Cameroon envisages for the Court to solve, and third
ly in terms of the "solution" it
proposes. Each of these need to be briefly mentioned. For this purpose a
lone reference will be made to
the general map of West Africa (Fig. 12.1), although - as Nigeria will demonstrate - these macro-
geographic considerations are in truth irrelevant to the actual dispute.
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(i) Cameroon's View of the Geographical Setting
12.7 In relation to this geographical situation, Cameroon complains that
its maritime territory is cut off,
inter alia...
"by the mainland part of Equatorial Guinea (the Rio Muni), whose orien
tation towards the
mouth of the Ntem, which acts as the boundary between the two countries,
disrupts, to say
the least, the frontal projection of Cameroonian territory towards the o
pen sea." 10
But it does so in relation to a delimitation to be effected to the north
and west of Bioko. Any effect of
Río Muni on Cameroon's maritime zones to the south of Bioko has nothing to do with Nigeria. There
could no doubt be a question about the delimitation of Cameroon's mariti
me zones vis-à-vis Río Muni;
the two are adjacent States on a west-facing coastline, and it might be
argued that the small promontory
of Cape Campo (Río Muni) would have a disproportionate inshore effe
ct on their respective territorial
seas and other zones. But, to repeat, this has absolutely nothing to do
with Nigeria.
12.8 On the other side, Cameroon argues that most of Nigeria lies to the
west, beyond Akasso, and that
Nigeria's south-facing coastline from Akasso to West Point (a distance
of approximately 250 km) should
be effectively discounted. For Cameroon, "the general direction of Niger
ia's coastline [lies] towards the
11
West". This is to view things on entirely the wrong scale. In fact most of Nig
eria's western coastline is
beyond 200 n.m. from Bakassi (and still further from Cameroon) and has
nothing whatever to do with
Cameroon's maritime zones. It is only in the spirit of general geographi
cal redistribution that Cameroon
can assert the relevance of such factors as the shape of Nigeria's coast
line hundreds of kilometres to the
west.
12.9 Globally, Cameroon asserts that the "relevant area" is bounded as f
ollows...
"an area between the real line of the coast starting from Akasso/Brass i
n Nigeria and
passing through Bonny, West Point, Tom Shot Point (Nigeria); then from
Tom Shot Point
to Sandy Point (Cameroon), East Point, Cap de Bunja (or Debundsha),
Cap Nachtigal,
Malimba Point, Campo (Cameroon); then from Campo to Gabo [sic] San Juan at the
extreme southern end of the Rio Muni (Equatorial Guinea); then from Ga
bo [sic] San Juan
to Cap Estera in Gabon, Ngombé and Cap Lopez (Gabon). And from Cap
Lopez, the zone
is closed by a straight line from this point to Akasso in Nigeria". 12
This area covers a distance of nearly 1000 kms. of coastline, from Cap L
opez in Gabon all along the
coast to Akasso. Clearly, Cameroon includes in this all its own coastlin
e, including the whole of its coast-
line from Campo northwards. The dispute is not envisaged as one concerni
ng the waters around Bakassi;
it is concerned with a vast area of the West African coastline (though
apparently island States are to be
excluded, since the coastal frontages of Bioko and São Tomé e Prí
ncipe are not mentioned). It is a
curious description of the dispute to say that it concerns Río Muni a
nd Gabon but not Bioko and São
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Tomé e Príncipe.
(ii) Cameroon's View of the "Problem" to be Resolved
12.10 Secondly, there is Cameroon's global formulation of the task confr
onting the Court, which is, in its
view, that "of determining how to share out equitably between all the St
ates in question the problems
13
arising from the geography". But this begs the question entirely. First, which are "all the States i
n
question", and how does the Court come to have jurisdiction over them? S
econdly, why do those five,
six or seven States all have "problems arising from the geography"? It i
s one thing to take into account
the general geographical situation of the region in which two disputing
States are located, and quite
another to treat all the States in that region as subject to a form of c
ollective redistribution of advantages
and disadvantages. Some may be "advantaged", some "disadvantaged" by the
ir place in the world. On
what legal basis are the disadvantages of some to be "shared out equitab
ly" among them all?
12.11 Similar remarks apply to Cameroon's formulation of the task for th
e Court: viz. to determine "the
share of the continental shelf to which it [sc. Cameroon] is naturally entitled". 14 First of all, the Court's
function in maritime delimitation is not to "share" out among a group of
States an a priori undivided
whole. 15 But even if it were, how can sharing a broad area of shelf between six
or seven States be
converted to a bilateral formula? Cameroon's "natural" entitlement to co
ntinental shelf is not something
that can be divorced from its geopolitical situation. The fact is that C
ameroon has a limited south/south-
west-facing coastal frontage, west of Cape Debundscha, in which Nigeria
is an adjacent State and Bioko
(part of Equatorial Guinea), in terms of its northerly and easterly fr
ontages, an opposite State. Then
Cameroon has a much longer west-facing frontage in which the east coast
of Bioko and then the easterly
frontage of São Tomé e Príncipe come into play opposite, and Rí
o Muni (part of Equatorial Guinea) is
an adjacent State to the south. That is its "natural" situation. It is n
ot the function of Nigeria in the north-
western sector to compensate Cameroon for disadvantages it may (possibl
y) suffer in the sectors to the
east and to the south of Bioko.
(iii) Cameroon's Proposed "Solution" to the "Problem"
12.12 Then in constructing its claim line, its "solution" to the questio
n of "sharing", Cameroon equally
acts in a global way. This can be seen from its manner of constructing p
oints "I", "J", "K" and "L" of its
claim-line.16 To avoid tedious repetition, it will be sufficient to focus on Point "I
". If the manner of
drawing the line at Point "I" is invalid, then the same will apply a fortiori to the points further seaward.
Indeed the further away from Cameroon the line goes, the further it devi
ates to the north west,
exaggerating the errors inherent in the process of selecting Point "I".
12.13 As to Point "I", Cameroon's argumentation is as follows:
"Point I...corresponds to proportionality between, firstly, the portion
of the Nigerian coast
from Bonny to the point at which the line of the land boundary ends, in
the middle of the
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mouth of the Akwayafé, as defined by the Agreements of 1913 and, seco
ndly, the
Cameroonian coast from this median point at the mouth of the Akwayafé
to Campo. The
choice of Bonny is explained by the fact that it is the point at which t
he Nigerian coasts
curve to form, with the Cameroonian coasts, the corner of the Gulf of Gu
inea. The ratio of
proportionality between the respective relevant portions of the Cameroon
ian coast and the
Nigerian coast is in the region of 1 to 2.3.
From the point of view of strict geographical logic, the support line fo
r Point I reflecting
proportionality should have started, on the Nigerian side, from Akasso,
which is the point
at which the change in the general direction of the Nigerian coasts take
s place, and not
from Bonny. But the choice of Akasso would have pushed the line even fur
ther to the
West, creating a closing effect on Nigeria's coasts and consequently lea
ding to an
inequitable outcome." 17
12.14 Leaving aside points of detail, 18 there is obviously something fundamentally wrong in this
reasoning. The point can be illustrated as follows. Cameroon takes as th
e relevant Nigerian coastline the
coast from Bonny to the Akpa Yafe. It takes as the relevant Cameroon coa
stline the whole of its
coastline down to Campo. It then draws a line between Bonny and Campo (
which line - incidentally -
cuts Bioko in half) and selects a point on the line which has the same
ratio as the respective coastlines
have. Since the ratio (according to Cameroon) is 1:2.3 in Cameroon's f
avour, Point "I" is drawn slightly
less than a third of the way along, leaving 1 part of the line to Nigeri
a and 2.3 parts to Cameroon.
12.15 Now Cameroon further says that the reason it did not select Akasso
as the starting point of the line
across to Campo was that this would be unfavourable to Nigeria. Akasso, Cameroon admits, would be
19
the right place to start that line "from the point of view of strict geo
graphical logic". But it would work
too much to Nigeria's disadvantage, because it would move Point "I" further west and cut off
Nigeria's
coastal frontage. But on Cameroon's calculation, based directly on the p
roportionality of coastal
frontages, Nigeria has a longer coastal frontage than it has if Bonny is used. Therefore the position o
ught
to be more favourable to Nigeria. A longer Nigerian coastal frontage must be bette
r for Nigeria in
proportionality terms. After all, the length of Cameroon's coastal front
age has not changed, and
proportionality of coastal lengths is the sole criterion, for Cameroon.
But, Cameroon tells us, the
situation becomes worse, not better. More Nigerian coastal frontage resu
lts in a worse result for Nigeria.
Cameroon provides no explanation for this anomaly. 20
12.16 Several further features of Cameroon's method may be noted. First,
there is the problem that the
"lines of construction" cut across the land territory, internal waters a
nd territorial sea of the two island
States in the Gulf. But if Point "I" is generated for the purposes of dr
awing maritime boundaries, why
should that part of the line of construction which cuts through the land
territory of Equatorial Guinea be
counted? The 40 km. transection of Bioko, and perhaps also its territori
al sea (which is for most
purposes equated to its land territory) should surely be ignored. 21Hence Point "I" should be
considerably further north-west - a possibility already rejected by Came
roon because it would unduly
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affect Nigeria.22
12.17 Then there is the drawing of lines joining arbitrarily selected po
ints on the mainland, ignoring
coastal frontages of the island States in the Gulf. For example one migh
t ask if the area bounded by the
line between Points "H" and "I" is to include any maritime zones for Equ
atorial Guinea? If so, why is the
coastal frontage of Equatorial Guinea not included in the calculations?
If not, on what basis are the
coastal frontages of island territories to be ignored?23 Cameroon's system is indefensible in its own
terms.
12.18 The arbitrariness and lack of any coherent principle in all of thi
s is obvious enough. It is a pseudo-
global as well as a pseudo-logical approach, one which takes some coastl
ines into account and not
others, which operates now from one point (Bonny) now from another (A
kasso), and all because it suits
Cameroon.
C. Cameroon's Approach is Inadmissible and Unjustified under Internation
al Law
12.19 Cameroon's "global" approach to delimitation of the waters of the
Gulf is inadmissible and
unsupported by international law. It is inadmissible because - if the Co
urt were to engage in a global
approach on any (as yet unarticulated) basis of principle - it would h
ave to assert jurisdiction over, i.e. to
decide legal questions concerning the rights of, third States. But it is
obvious that it cannot do this in
these proceedings. Cameroon's approach is substantively untenable for a
range of reasons (quite apart
from the fact, demonstrated in Chapter 10 above and in further detail in
Chapter 13, that it is inconsistent
with the oil practice of the parties and the legitimate expectations bot
h of existing licensees and of the
States concerned). These reasons include the following: (a) Cameroon
takes no account of the criteria of
appurtenance and distance, despite paying lip-service to the latter; (b
) Cameroon takes into account
coastal frontages it should not take into account, and vice versa; (c) Cameroon uses "proportionality" in
a wholly spurious way to generate maritime entitlements, and fails to us
e it in the appropriate way as a
checking device in relation to areas delimited by other means.
(iv) Cameroon's approach is inadmissible
12.20 Enough has already been said to show that Cameroon's approach is i
nadmissible in limine,
because it cannot be applied without first deciding on the legal rights
of third States, which the Court
cannot do. 24
12.21 The point can be seen by looking at Cameroon's view of the "releva
nt" coastline, which includes
25
Nigeria's coastline to Bonny (alternatively Akasso) and Cameroon's dow
n to Campo. But it is only
possible to decide to take into account, for example, the coastline from
Malimba Point to Campo if
either (a) one decides to ignore the existence of Bioko, or (b) one
decides that the maritime zones
generated by this coastline in the adjacent waters and to the south of B
ioko are "inadequate". Even if
there were criteria for deciding on "inadequacy" for this purpose (whic
h there are not), to do so would
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first require a decision on the legal position of Bioko (Equatorial Gui
nea). No doubt Equatorial Guinea
would not be "bound" by that decision. But the Court has not treated Art
icle 59 of its Statute as a
26
sufficient protection to third States whose rights are at stake in a cas
e.he same point could be made
with respect to the effect of Príncipe as an opposite State on Camero
on's entitlement with respect to its
coastline north of Campo.
(v) Cameroon's approach is substantively unjustified in international
law
12.22 In any event, Cameroon's "method" of delimitation is substantively
unjustified, and contrary to
international law. Nigeria demonstrated this in its Counter-Memorial, with substantial reference to the
authoritative statements of the Court.27 The defects can be, non-exhaustively, summarized as follows:
(a) Ignoring criteria of appurtenance and distance
12.23 Cameroon rejects any reliance on any of appurtenance, equidistance
and natural prolongation in
favour of geometric methods based on a spurious form of arithmetical "lo
gic". 28 Both its methods and its
(pre-ordained) result fail to reflect modern methods of delimitation.
Thus international tribunals - while
rejecting a rule of equidistance as a matter of general international la
w - generally start from a median or
29
equidistance line which is then adjusted to take into account other rele
vant circumstances. It is true
that the case for a median or equidistance line as a starting point is s
tronger for opposite than for
adjacent coasts, but this does not mean that considerations of relative
distance are irrelevant, or that
30
appurtenance does not matter, in the case of adjacent States. The fact is that from very close inshore,
the Cameroon claim line is closer to two or more other States than it is
to Cameroon, and the
discrepancy in distance becomes more and more acute as the line proceeds
south-westwards. Indeed, as
it proceeds on from Point "K" towards Point "L" and beyond, the claim li
ne veers still further
westwards, as if the fact of dropping below the latitude of Campo were t
o produce an extra
determination to make more space for Cameroon. 31 The following table of distances from Point L/L' is
32
illustrative:
Location Distance of Distance of
Point L Point L'
Akasso 218 km 180 km
(Nigeria)
(118 n.m.) (97 n.m.)
Bioko 285 km 290 km
(Equatorial Guinea)
(154 n.m.) (156 n.m.)
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Príncipe 160 km 195 km
(86 n.m.) (105 n.m.)
East Point (Bakassi) 365 km 350 km
(197 n.m.) (189 n.m.)
Campo 420 km 435 km
(Cameroon)
(227 n.m.) (235 n.m.)
Cameroon's claim to Point "L" and beyond, at more than twice the distanc
e than from two other States,
departs from any accepted basis of principle and is wholly unjustified.
(b) Arbitrary consideration of coastal frontages
12.24 The point has already been made that Cameroon's selection of the p
oints to be taken into account
in drawing its "lines" is arbitrary. Moreover its method takes no accoun
t of the shape of the coast
between the points chosen, or of the angles subtended, each of which wil
l affect the location of a point
selected on the "line" artificially joining the points.
12.25 It is a fundamental principle of maritime delimitation that the en
titlement to maritime areas
depends on the claimant State possessing a coastline which fronts on the
area to be delimited. The Court
has said this in very clear terms, for example, in the Libya/Malta case:
"The juridical link between the State's territorial sovereignty and its
rights to certain
adjacent maritime expanses is established by means of its coast. The con
cept of adjacency
measured by distance is based entirely on that of the coastline, and not
on that of the
landmass." 33
The Chamber in the Gulf of Maine case said much the same thing when it observed that:
"The involvement of coasts other than those directly surrounding the Gul
f does not and
may not have the effect of extending the delimitation area to maritime a
reas which have in
fact nothing to do with it. It is ultimately only the concept of the del
imitation area which is
a legal concept, albeit one developed against the background of physical
and political
34
geography."
It is accordingly necessary to determine what are the "pertinent" or "re
levant" coastlines for the purposes
35
of delimiting a given area. But Cameroon never seeks to justify the choice of its entire coastline
as
"relevant" to a delimitation of waters north-west of Bioko. It thus assu
mes, in a question-begging way,
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precisely what has to be shown.
12.26 One can test Cameroon's method by asking what result it would prod
uce if, for example, the
Southern Cameroons had become independent in 1961 rather than joining th
e Republic of Cameroon.
36
The eastern boundary of Southern Cameroon province was just east of Vict
oria. The coastal frontage
would have been much shorter, and correspondingly the ratio of coastal f
rontages would have been very
different (viz., 1:1.2 in Nigeria's favour, taking Bonny as the relevant point on the
Nigerian side).7 In
that case, either Point "I" would have been considerably further east, o
r it would have been unchanged
because the line Campo-Bonny would still have been drawn. 38 In other words, either "Southern
Cameroons" would have had a disproportionate maritime zone because of th
e configuration of a third
State, or it would not. If not, why should the same coastal segment attr
act a larger maritime zone when it
is not independent? Why should the maritime boundary attributable to the
coastal segment from East
Point to Victoria be different because the same State extends down to Ca
mpo, as compared with a
different State? "Southern Cameroons" would have had a relevant coastlin
e west of Victoria, looking on
to the Bight of Bonny. "Cameroon", further south, would have had no such
coastline. Why does the
irrelevant coastline of Cameroon, between say Campo and Cap Nachtigal, b
ecome "relevant" because
there is a coastline to the north-west which does generate a maritime en
titlement in the area in dispute?
No rational answer can be given to these questions. And certainly Camero
on gives none.
(c) Incorrect use of proportionality
12.27 Thirdly, Cameroon uses the ratio of what it deems to be the "relev
ant" coastal distances to
generate a scheme for dividing the whole area of the Gulf. It then uses
precisely the same considerations
39
to "check" the result arrived at. In short it uses the very same criteri
on as the method of delimitation
and as the method of confirming the delimitation so produced. 40 This is a remarkably circular form of
"checking" or "confirmation" - the repetition of the procedure used to a
chieve the result in the first place.
12.28 No doubt it is understandable why Cameroon adopts such a circular
approach. The fact is that it is
unwilling to make any substantive maritime claim for itself, but only a
negative claim against Nigeria. It
refuses to disclose to the Court what precise (or even approximate) ar
ea of maritime zone it is claiming.
Yet this information is necessary in order to be able to confirm the equ
itable character of the outcome its
41
method is said to produce. Again there is a contradiction - although, since Cameroon no doubt has
an
opinion about its maritime entitlements, the contradiction here may only be app
arent. It is not what
Cameroon does not know: it simply refuses to say.
12.29 In both respects, Cameroon's method is out of line with the approp
riate methods of maritime
delimitation laid down by the Court in successive cases, as Nigeria show
ed in its Counter-Memorial. In
this respect the approach of this Court has not altered, in its essentia
ls, since the North Sea Continental
Shelf cases, as the following brief passages from successive judgments show.
Thus in 1969 the Court
said:
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"... even in such a situation as that of the North Sea, the notion of ap
portioning an as yet
undelimited area, considered as a whole (which underlies the doctrine o
f the just and
equitable share), is quite foreign to, and inconsistent with the basic
concept of continental
shelf entitlement..."2
And in 1985 the Court said:
"That equitable principles are expressed in terms of general application
, is immediately
apparent from a glance at some well-known examples: the principle that t
here is to be no
question of refashioning geography, or compensating for the inequalities
of nature... the
43
principle that there can be no question of distributive justice."
And in 1993 it said:
"... 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 coasta
l fronts and the
44
areas generated by them."
12.30 The point was again affirmed in economical terms by the Tribunal i
n the Yemen-Eritrea
Arbitration (Phase II). After referring with approval to the Court's approach in the North Sea
Continental Shelf cases, the Tribunal said:
"The principle of proportionality... is not an independent mode or princ
iple of
delimitation, but rather a test of the equitableness of a delimitation a
rrived at by some
other means. So, as the Award stated in the Anglo-French Channel case, 'it is
disproportion rather than any general principle of proportionality which
is the relevant
criterion or factor'."5
12.31 By contrast Cameroon uses relative coastal lengths as a means of g
enerating, quasi-automatically,
its "fair share" of a maritime zone conceived as an undivided whole. But
if "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", 46 Cameroon cannot ask the Court
to require such a delimitation of the other States in the Gulf - and sti
ll less of Nigeria alone.
D. The Question of the Outer Continental Shelf
12.32 For the sake of completeness, brief mention needs to be made of th
e implicit claim by Cameroon
to an "outer continental shelf", i.e. an area of continental shelf lying
beyond Point "L" and beyond 200 n.
m. from the Cameroon coast. As noted in paragraph 12.23 above, Cameroon'
s Point "L" is
approximately 200 n.m. away from Bakassi, and still further from Cameroo
n proper. Yet it is apparently
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not the end of Cameroon's claim line. 47 At the same time, Point "L" in either of its versions is well
within 200 n.m. of the Nigerian coast.
12.33 The question might thus arise whether Cameroon can claim an outer
continental shelf, pursuant to
the provisions of the Law of the Sea Convention, in particular Article 7
6 (4)-(8). It will already be clear
that in Nigeria's view this issue is a purely notional one, since Camero
on has no basis for claiming
anything remotely like a 200 n.m. projection cutting across the front of
Nigeria's continental shelf. For
the reasons already given, Cameroon's claim is inadmissible and unfounde
d.
12.34 However, Nigeria takes this opportunity to express its firm view t
hat a claim can only be made
under Article 76 to a continental shelf beyond 200 n.m. where the area c
oncerned does not form part of
the EEZ of another State. Otherwise there would be an irresolvable confl
ict between the EEZ rights of
the coastal State within 200 n.m. of its coast (which include rights ov
er the seabed and the sub-soil) and
the outer continental shelf rights of another State. Even if this confli
ct were resolved in favour of the
outer continental shelf State (a solution for which there is no legal j
ustification) there would then be the
serious practical problem of one State having exclusive jurisdiction ove
r the water body and another
48
having "sovereign rights" over the seabed in precisely the same area. Accordingly, even if (quod non)
Cameroon was held to have a right to maritime zones out to 200 n.m. from
its coastline, its rights would
end there.
E. Conclusions
12.35 For these reasons, Cameroon's global division of the Gulf of Guine
a cannot be accepted. It is an
extreme claim, and, moreover, one which Cameroon still has not managed t
o formulate accurately. It is
an incoherent claim: in substance it is a multilateral claim as against
all the Gulf of Guinea States, but in
form it is made against Nigeria alone, and seeks to exclude it from havi
ng any maritime boundaries
except with Cameroon. It is a claim with no foundation in law, since it
depends on the generating
capacity of a coastline which is irrelevant to the area to be delimited.
Cameroon's claim should be
rejected as inadmissible and unsustainable in law and fact.
12.36 For the reasons stated in Nigeria's Counter-Memorial, this is as far as the Court needs to go in the
49
present case. There has never been any negotiation on Cameroon's global claim, nor ev
en any proposal
for negotiations. Cameroon brought the present proceedings unilaterally
and without notice. It bears the
burden of proof in relation to its claim. The only basis on which it sup
ports its claim to maritime zones
50
(excluding the area immediately off-shore Bakassi ) is on the basis of a global apportionment of the
waters of the region. To repeat, it sees the question as being one "of d
etermining how to share out
51
equitably between all the States in question the problems arising from t
he geography". It should be
noted again that for Cameroon, "all the States in question" are: Nigeria
, Cameroon, Equatorial Guinea
(both Bioko and Río Muni), São Tomé e Príncipe and Gabon.
The Court is called on to conduct an a
priori "cutting up of the cake" as between these five States, at the unannounc
ed demand of one of them,
in order to avoid that State having to negotiate with the others on thei
r respective maritime zones, as it is
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required to do by international law.
12.37 But quite apart from considerations of the burden of proof, Nigeri
a has established that this claim
by Cameroon is completely without foundation. If it were not hopelessly
inadmissible, it would be
totally unjustified under international law.
12.38 There remains the specific dispute between Nigeria and Cameroon as
to their immediate maritime
zones offshore Bakassi, to the extent that it does not impinge on the le
gal position or claims of
Equatorial Guinea in respect of Bioko. To that specific dispute Nigeria
now turns.
__________
1 On the "critical date" for the purposes of different sectors of the la
nd boundary, and the limited function of the
concept, see NC-M, paras. 10.16-10.20, and see also above, para. 3.16.
2 See above, paras. 10.12, 10.18 and Fig. 10.2.
3 See above, para. 10.24.
4 RC, para. 9.108.
5 See above, Chapter 10 and the maps in the Appendix to Chapter 10. Came
roon complains (RC, para. 9.108)
that Nigeria has not tabled all its licence agreements, specifying OML 6
7. Not wanting to burden the Court,
Nigeria tabled only a selection of licences (NC-M, Annex 341). The Mob
il licence for OML 67 is attached as
Annex NR 181. The relevant information is contained in accessible form i
n the maps set out in this Reply.
Nigeria is happy to provide further clarifications to the Court on reque
st.
6 cf. Case concerning the Land, Island and Maritime Frontier Dispute, I.C.J.
Reports 1992 p. 351 at p. 405-406
(paras. 72-73).
7 e.g. RC, para. 9.62, where it says that Nigeria's concerns are a mere
"pretext". cf. also RC, paras. 9.68, 9.70.
8 cf. W. Shakespeare, Hamlet (1601) Act 3, Scene 2 ("The lady doth protest too much, methinks.")
.
9 NC-M, paras. 23.6-23.10.
10 RC, para. 9.57.
11 RC, para. 9.58.
12 RC, para. 9.83.
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13 RC, para. 9.62.
14 RC, para. 9.75 (emphasis added).
15 See NC-M, paras. 21.10-21.23 and see further below, paras. 12.26-12.3
0.
16 Point "G" concerns the in-shore boundary; so does Point "H". Neither
of these points - whatever their merits
or demerits -affects third States and neither is a manifestation of a "g
lobal" claim. They are accordingly dealt
with in the following chapter. Points "G" to "L" are shown in Fig. 9.1 (
referred to in para. 9.5 above).
17 RC, paras. 9.88-9.89.
18 For example, there is no significant change in the direction of the N
igerian coast at the Bonny River. From
Akasso in Nigeria right up to Bamusso in Cameroon, the general direction
of the south-facing coastline is more
or less a straight line, and there are no features along this part of th
e coast which would call for any particular
correction from an equidistance line. Cameroon's choice of Bonny is pure
ly arbitrary, a point chosen to produce a
predetermined result.
19 RC, para. 9.89.
20 Actually, Nigeria has been unable to replicate Cameroon's result, usi
ng Akasso as the relevant locale for
calculating Point "I". But this is of limited significance. No doubt Cam
eroon is able to apply its own method,
even if it does not provide the details.
21 See RC, p. 423, Map R23 ("La Ligne Equitable (lignes de constructio
n)").
22 RC, para. 9.89.
23 In calculating Point "J", Cameroon does take the Equatorial Guinea co
ast into account, but it is only the coast
"from Cabo San Juan to Campo", i.e. the mainland coast of Río Muni. T
o treat Río Muni as relevant to Nigeria's
maritime zones and Bioko as irrelevant is a remarkable inversion of the
situation.
24 See above, para. 11.11
25 Above, para. 12.10.
26 See above, paras. 11.8, 11.11.
27 See NC-M, chs. 21, 23.
28 See e.g. RC, paras. 9.55, 9.67, 9.69, 9.75, 9.79.
29 For recent manifestations of this general approach see e.g. Jan Mayen, I.C.J. Reports 1993, pp. 60-61 (paras.
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50-51); Yemen-Eritrea (Phase II), Judgment of 17 December 1999, para. 131.
30 In fact Cameroon treats the whole of its coastline as relevant, yet f
or the most part that coastline is "opposite"
rather than "adjacent" to Nigeria.
31 See Fig. 9.1, above (referred to in para. 9.5). It may be noted tha
t Cameroon nowhere makes an effort to
justify the direction or extent of its claim-line beyond Point "K": inde
ed it expressly disavows such an effort: RC,
para. 9.93. Its line out to Point "L" is thus pure assertion.
32 For Cameroon's failure to specify its claim to Point "L" see above, p
ara. 9.3.
33 I.C.J. Reports 1985 p. 13 at p. 41 (para. 49)
34 I.C.J. Reports 1984 p. 246 at p. 272 (para. 41).
35 Both terms ("pertinent coast" and "relevant coast") are used, e.g.
by Judges Ruda, Bedjaoui and Jiménez de
Aréchaga in their joint separate opinion in Libya/Malta, I.C.J. Reports 1985 p. 13 at p. 82 (para. 20).
36 See NC-M, Atlas, vol. II, Map 55.
37 The actual distances are as follows: Southern Cameroon (Victoria-Cro
ss River Estuary) 122km; Nigeria
(Bonny-Cross River Estuary) 145km
38 It does not matter to Cameroon whether the lines join points in Camer
oon or in third States. The other two
lines which give rise to Points "J" and "K" are drawn from points in Equ
atorial Guinea and Gabon.
39 cf. RC para. 9.91 ("to achieve proportionality").
40 cf. RC, para. 9.93 revels in this circularity: "The proportionality test, c
arried out segment by segment over the
whole line, fully confirms the equitable outcome that this line [drawn o
n the basis of proportionality] achieves."
41 Cameroon recognises this in the following passage (RC, para. 9.94):
"Beyond the line itself, it is the overall outcome that should be consid
ered. It is not a matter of indifference in this
respect that the Court usually insists on an 'equitable solution' and no
t only on an 'equitable line'. Map R 21...
showing the proposed line, confirms the equitable nature of the solution
advocated, which has no unreasonable
consequence." But Map R21 does nothing of the sort: it shows only a line
, not a solution, and there is no basis in
Map R21 or elsewhere in Cameroon's pleadings for the Court to compare or
assess the outcome for Nigeria and
that for Cameroon. All Cameroon provides is a line and an assertion of e
quity.
42 I.C.J. Reports 1969 p. 6 at p. 23, para. 20; the full passage is set
out in NC-M, para. 21.10.
43 Libya/Malta, I.C.J. Reports 1985, pp. 39-40, para. 46; the full passage is set out
in NC-M, para. 21.12. To the
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same effect are the remarks of the Chamber in the Gulf of Maine case:
"to take into account the extent of the respective coasts of the Parties
concerned does not in itself constitute either
a criterion serving as a direct basis for a delimitation, or a method th
at can be used to implement such a
delimitation... [A] maritime delimitation can certainly not be establish
ed by a direct division of the area in dispute
proportional to the respective lengths of the coasts belonging to the pa
rties in the relevant area, but it is equally
certain that a substantial disproportion to the lengths of those coasts
that resulted from a delimitation effected on
a different basis would constitute a circumstance calling for an appropr
iate correction."
I.C.J. Reports 1984 p. 246 at p. 323 (para. 185); see also ibid., p. 335 (para. 218).
44 Jan Mayen, I.C.J. Reports 1993, p. 67, para. 64; the full passage is set out in N
C-M, para. 21.13.
45 Award of 17 December 1999, para. 165, citing the decision of the Arbi
tral Tribunal in the Anglo-French
Continental Shelf case, (1977) I.L.R. Vol. 54, p. 67, para. 101.
46 I.C.J. Reports 1993 p. 38 at pp. 66-67, para. 64.
47 RC, para. 9.93.
48 There is also no indication in the 1982 Convention that the Commissio
n on the Limits of the Continental
Shelf, established by Annex II, is intended to have jurisdiction over ar
eas falling within the EEZ of any State.
49 See NC-M, paras. 23.4, 23.11-23.12, 23.23.
50 Nigeria expressly accepted in its Preliminary Objections, and has always proceeded on the basis that, there is
a dispute between the Parties (a) as to the Maroua Declaration and its
possible consequences for maritime
territory out to Point G; and (b) as to the area of overlapping licenc
es beyond Point G.
51 RC, para. 9.62.
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PART IV
THE MARITIME BOUNDARY
CHAPTER 13
THE MARITIME BOUNDARY BETWEEN
NIGERIA AND CAMEROON
A. The Real Area in Dispute
13.1 Nigeria accordingly turns to the actual dispute between the Parties
to the present case. For the
reasons given in the preceding Chapter, this dispute is not one which co
ncerns the Gulf of Guinea as a
whole. It is not to be resolved by drawing lines which touch on such thi
rd States as São Tomé e Príncipe
1
or Gabon. It is a dispute arising between Nigeria and Cameroon in the narrower wa
ters of the Bight of
Bonny. In the inshore area it involves the waters of the Rio del Rey or
(according to Cameroon) the Cross
River Estuary. In these waters, only Nigeria and Cameroon are concerned.
But offshore, the dispute also
directly concerns a third State, Equatorial Guinea, which has unresolved
claims in the area to the north of
point (i) by reason of its sovereignty over the island of Bioko. It sh
ould be stressed that Nigeria
provisionally accepts the maritime jurisdiction of Equatorial Guinea to
the south and east of the maritime
2
boundary drawn by the Treaty of 2000 (and subject to the ratification o
f that Treaty).
13.2 The point has already been made that the entitlement to maritime sp
ace depends on a State's
possession of a "relevant" or "pertinent" coastal frontage, i.e. one whi
ch pertains to the area in dispute and
3
which is capable of affecting the maritime spaces of other States in tha
t area.is accordingly necessary
to analyse in more detail Cameroon's relevant coastal frontages, and the
relevant coastlines of the two
other States involved, Nigeria and Equatorial Guinea (in respect of Bio
ko).
(i) Cameroon's coastal frontage on the Gulf of Guinea: in general
13.3 Cameroon's coastal frontage on the Gulf of Guinea cannot be conside
red as if the island of Bioko,
seat of the capital of Equatorial Guinea, did not exist. The Court has t
o base itself on the actual political
and geographical situation, as it has frequently pointed out.he fact is that Bioko does exist, and it is not
part of Cameroon. Moreover the north-east facing coast-line of Bioko is
on average less than 24 n.m. from
the coastline of Cameroon. The distance between Debundscha Point (Camer
oon) and Punta Europa
(Equatorial Guinea) is almost exactly 24 n.m. For the purposes of mari
time delimitation in the Gulf of
Guinea, it is necessary to consider Cameroon's coastline as divided into
three Sectors. These are shown on
Fig. 13.1. They are as follows:
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Sector 1: This is the coastal frontage northwestwards from Debundscha Po
int to the mid-point of the Rio
del Rey. Alternatively, according to Cameroon it extends further, to Eas
t Point on the Bakassi Peninsula.
However far it extends, it is along this frontage that Cameroon looks ou
t into the Gulf of Guinea as an
adjacent coastal State of Nigeria.
Sector 2: This is the Sector from Debundscha Point southeastwards down t
o about 3º N, where Cameroon
and Bioko (Equatorial Guinea) are directly opposite each other. Within
this Sector there is a stretch of
about 20 n.m. where the territorial seas of Cameroon and Bioko abut (i.
e. where the distance between their
respective baselines is 24 n.m. or less), together with a larger area i
n the Doaula Basin, eastwards of
Bioko, where the maritime area between the two States broadens out to a
maximum of about 75 n.m. In
this Sector the northern and eastern coastal frontages of Bioko (totall
ing together approximately 50 n.m.)
are opposed to the south-west facing coastal frontages of Cameroon (tot
alling together approximately 90 n.
m.).
Sector 3: Finally, there is a Cameroon coastal frontage of approximately
40 n.m., running southwards
from 3º N down to the land boundary with Equatorial Guinea (Río M
uni). This coastal frontage looks into
the "gap" between Bioko and Príncipe, the northernmost island of Sã
o Tomé e Príncipe.
13.4 Something has to be said about the issues of maritime delimitation
in relation to each of these three
Sectors, beginning with Sector 3.
(ii) Cameroon's coastal frontage in Sector 3
13.5 As to Sector 3 (see Fig. 13.2), it is obvious that the primary issue of maritime delimitation arises
as
between three States, two of which are not parties to the present case.
They are Cameroon, Equatorial
Guinea (which is both an adjacent and opposite State to Cameroon in res
pect of Bioko and Río Muni
respectively) and São Tomé e Príncipe (an offshore archipelag
ic State with a clear legal interest in the
delimitation of the maritime zones lying to its north and east). The ga
p between Bioko and Príncipe is
approximately 115 n.m., and the two States claim the totality of the mar
itime zones between them.
Whether and what maritime zones Cameroon may be able to claim in Sector
3 is obviously a matter on
which the Court in the present proceedings cannot decide, because it is
a matter which arises between
those three States. But if the Court cannot decide the question, nor can
it act as if it had done so. Nigeria
would come into the picture, in relation to any possible projection of C
ameroon's coastal frontage in
Sector 3, if and only if, it was decided that areas in the gap between B
ioko and Príncipe and beyond
appertain to Cameroon rather than either of those two States. The Court
cannot decide that question in
these proceedings.
13.6 Nigeria is not informed as to the practice of Cameroon vis-à-vis
the other two States in relation to
Sector 3. As noted already, there is an agreed equidistance line as betw
een Equatorial Guinea and São
Tomé e Príncipe. 5 That line is shown on Fig. 13.2. Nigeria makes no claim to any maritime area in Sector
3 to the east of the areas affected by its agreements with those two Sta
tes, which areas are also shown on
Fig. 13.2. The easternmost limit of Nigeria's claims in Sector 3 is a tripoint wh
ich has the following co-
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ordinates: latitude 2° 42' N, longitude 7° 38' E. As noted already
, that point is much closer to both
Equatorial Guinea (60 n.m.) and São Tomé e Príncipe (60 n.m.
) than it is to the west-facing coastline of
Cameroon in Sector 3 (133 n.m.). Again, it is clear that no question a
s to the possible appurtenance of this
area to Cameroon can be decided in the present case.
(iii) Cameroon's coastal frontage in Sector 2
13.7 As to Sector 2, this lies exclusively between Cameroon and Bioko. T
he area affected by Sector 2 can
be seen from Fig. 13.3. The delimitation of this area (territorial sea and other applicable m
aritime zones)
is a matter entirely between Cameroon and Equatorial Guinea. It does not
arise in the present proceedings.
It will be for Equatorial Guinea to inform the Court as to the line whic
h has been observed in practice
between Cameroon and Equatorial Guinea in Sector 2. All that needs to be
said here is that these areas can
have no implications for the delimitation of areas of maritime territory
or jurisdiction further west. At
Debundscha Point, the Cameroon coastline swings north-westwards towards
the Rio del Rey. Eastwards
of Debundscha Point, Cameroon's coast looks directly across at Bioko, at
a distance always less than 24 n.
m. In other words, the strait between Cameroon and the north-facing coas
t of Bioko is subject to the
regime of territorial sea. That continues to be the case for some 42 km
(20 n.m.), until a point south of
Victoria, at around latitude 3° 46' N, longitude 9° 8' E. It is on
ly south-east of this point that issues of
delimitation of EEZ and continental shelf again arise, and they arise ex
clusively between Cameroon and
Equatorial Guinea.
13.8 It is well established that the territorial sea has a distinct char
acter, with its own regime and its own
6
rules of delimitation. The entitlement of a coastal State to a territorial sea is distinct fro
m any entitlement
to EEZ or continental shelf, and issues of delimitation of EEZ or contin
ental shelf can only arise beyond
the outer limit of the territorial sea. As the Court has noted, "the con
tinental shelf begins, for purposes of
7
delimitation, from the outer limit of the territorial sea".Within the strait between Bioko and Cameroon,
there is no "outer limit of the territorial sea" but rather a territoria
l sea boundary with a third State.
13.9 In the Gulf of Maine case, a Chamber of the Court excluded from consideration as coastal fro
ntages
those areas which were exclusively subject to the regime of territorial
seas. The Chamber noted that at a
certain point within the Bay of Fundy, "the Bay contains only maritime a
reas lying no further than 12
miles from the low water mark". 8 It went on to calculate, as the relevant Canadian coastline, "the coast
al
fronts from the terminal point of the international boundary to the poin
t on the New Brunswick coast off
which there cease to be any waters in the bay more distant than 12 miles
from a low-water line". 9 No
doubt the situation of the Bay of Fundy relative to the Gulf of Maine as
a whole is different from that of
the Bight of Bonny relative to the Gulf of Guinea. In particular the Bay
of Fundy is a bay, not a strait, and
its waters do not open out to the north-east, as Cameroon waters do open
out to the south-east of Victoria.
But this means only that the coastal frontages to the east of Debundscha
Point are capable of generating
their own separate maritime entitlement in the waters which they front.
Thus there is every reason to
apply the same approach to areas within the strait between Bioko and Cam
eroon as the Chamber applied
to the Bay of Fundy in Gulf of Maine. As with the Bay of Fundy, the coastal frontages within the strait
between Bioko and Cameroon, which are not "more distant than 12 miles fr
om a low-water line", should
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not be counted as coastal frontages for the purposes of the delimitation
of EEZ and continental shelf areas
lying outside the strait and well to the south-west. As to the areas to
the east of the strait, their maritime
frontage lies southwards, and to the east of Bioko.
13.10 To summarize the situation as to Sector 2, Nigeria has no interest
in issues of maritime delimitation
there, whether they concern territorial sea or, further eastwards, EEZ a
nd continental shelf. It is only
westwards of Debundscha Point that Cameroon's remaining coastline looks
out into waters of the Bight of
Bonny which pertain to Nigeria, including the area of overlapping licenc
es.
(iv) The Parties' coastal frontages in Sector 1
13.11 The position in Sector 1 is evidently different, as can be seen fr
om Fig. 13.4. In Sector 3, the three
States primarily concerned are Cameroon, Equatorial Guinea (both as an
adjacent and opposite State) and
São Tomé e Príncipe. Nigeria is concerned only contingently, i.
e. on the hypothesis that Cameroon were
to be held entitled to a projection out into and beyond the "gap" betwee
n Equatorial Guinea and Príncipe.
In Sector 2 there are only two States concerned, Cameroon and Equatorial
Guinea (as opposite States). By
contrast, in Sector 1 there are three States concerned, and Nigeria is o
ne of them. The Court has held (and
Nigeria accepts) that there is a dispute as to the maritime boundary in
this Sector. A more detailed
analysis of coastal frontages in Sector 1 is thus required.
13.12 The first point to note, of course, is that the exact coastal fron
tages of Cameroon and Nigeria in
Sector 1 depend on the prior determination as to sovereignty over the Ba
kassi Peninsula. This issue could
be largely ignored for the purposes of assessing Cameroon's "global" cla
im to the apportionment of the
Gulf of Guinea as a whole. As has been shown, Cameroon's claim is inadmi
ssible and unsustainable in
law, irrespective of the outcome of the dispute over the Bakassi peninsu
la. However the position is
different with respect to the actual dispute between Nigeria and Cameroo
n in Sector 1. Without prejudice
to the reservation made in paragraph 11.24 above, Nigeria will hereafter
present its submissions on the
maritime boundary on the basis that it has sovereignty over the Bakassi
Peninsula, in accordance with the
arguments presented in this and earlier pleadings of Nigeria and as demo
nstrated by its long-standing
control and administration of a substantial Nigerian population. At the
same time Nigeria will take the
opportunity to comment on the internal logic of Cameroon's maritime boun
dary claims, explaining how
and why, even if Cameroon had been justified in claiming the Bakassi Pen
insula, those maritime
boundary claims would be excessive and unjustified as a matter of intern
ational law.
13.13 The second point to note, however, is that even if Cameroon's clai
m to Bakassi were to be upheld,
so that the coastal frontage of Cameroon were to be extended to East Poi
nt on Bakassi, there would still
be a very material disproportion in Nigeria's favour between their respe
ctive coastal frontages. This
disproportion is obvious from a glance at the map, but it can be seen mo
re exactly from the following
table. Of course Nigeria's total coastline is approximately 575 km, and
not all of this coastal frontage is
relevant. For the purposes of calculating its Point "I", Cameroon adopte
d Bonny as the western end of the
Nigerian coastal frontage. Its reasons for doing so have already been cr
iticised. But assuming for the sake
of argument that the relevant coastal
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frontage were to start at Bonny, the frontages of the Parties in Sector
1 would be approximately as
10
follows:
Nigerian coastal frontage Cameroon coastal frontage
(a) On the basis of 95 n.m. 30 n.m.
Nigeria's claim 11
(b) On the basis of 70 n.m. 55 n.m.
12
Cameroon's claim
Thus, even taking Bonny, which is little more than half way along Nigeri
a's south-facing coastline
towards Akasso, the relevant Nigerian coastal frontage is longer than Ca
meroon's in Sector 1, by a factor
which is somewhere between 1:1.3 and 1:3.2.
B. The Resolution of the Maritime Boundary as between Nigeria and Camero
on: Refuting Cameroon's
Claim
13.14 For the reasons given in Chapter 11, it is respectfully submitted
that the Court lacks jurisdiction
over the Cameroon claim beyond the point at which it crosses into waters
which are claimed by Equatorial
Guinea under the Treaty of 2000. It is true that Cameroon has failed to
make its claim at all clear: there
13
are two different versions of its claim line, with equal status, in its
Reply.But whichever it may be, it is
clear that the claim line crosses into waters claimed by Equatorial Guin
ea. The Court cannot allocate those
waters to Cameroon in the present proceedings, nor can it act on the pre
mise that areas legitimately
claimed by Equatorial Guinea belong instead to Cameroon. It should be no
ted in this context that all the
areas concerned are closer to Equatorial Guinea than they are to Cameroo
n. They were never (before
Cameroon's Memorial) claimed by Cameroon. They have been the subject of Equatorial Guinea
licences
and, more recently, of substantial exploitation under Equatorial Guinea
auspices, which exploitation has
never (so far as Nigeria is aware) been protested or opposed by Camero
on.
13.15 It follows that the areas over which the Court has jurisdiction in
the present case are limited to those
to the north and west of the prospective boundary between Nigeria and Eq
uatorial Guinea under the
Treaty of 2000. 14 Those areas are shown on Fig. 13.5. Features of the Cameroon claim line(s) are as
follows:
(1) Cameroon's claim lines diverge materially from the equidistance li
nes between the three coasts
concerned, and go way beyond any conceivable tripoint.
(2) From Point G westwards until they intersect with Equatorial Guinea
's claimed maritime zones, they
cut uninterruptedly through areas which have been the subject of unoppos
ed Nigerian licences for up to
40 years. Specifically, these are as follows:
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(3) As can be Current licence area bisected Date of initial Remarks
seen from
by Cameroon claim lines Nigerian licence
Fig. 13.5, the OPL 98 12/6/1973 Western part licensed earlier as
claim lines
would each part of Block M (awarded 1961)
OML 67 1/12/1968 Western part licensed earlier as
attribute to
Cameroon part of Block M (awarded 1961)
valuable
fields, wells OPL 224 21/9/1990 Formerly licensed as southern
part of OPL 98 (awarded 1973);
and recently converted to OML 115
infrastructure,
to none of OML 102 1/7/1991 Converted from OPL 97
(awarded 1972) and part of the
which former Block M (awarded 1961)
(before
1995) OPL 223 23/4/1993 Area designated part of Block
Cameroon 470 in 1980 but not then
had made licensed.
any claim.
(4) Both lines imply a substantial claim to maritime territory vis-à
-vis Equatorial Guinea, including the
whole or a substantial part of the Zafiro Field. For the Court to award
such areas to Cameroon would
defeat the expectations of all concerned - States, licensees and investo
rs, not to mention the peoples of the
States affected - based on many years of practice.
13.16 Cameroon seeks to refute this argument by asserting that the pract
ice of the parties is recent,
subsequent to the critical date, and should be ignored for present purpo
ses.It argues that the practice is
16
equivocal, given the existence of overlapping licences. In its view, the Court is free to transfer wells and
other installations from one State to another, without regard to any pri
nciple of vested rights or legitimate
17
expectations. These arguments are without substance, for the following reasons.
(v) The oil practice is long established and substantial
13.17 Cameroon's claim that the oil practice is recent and of short dura
tion (subsequent to the critical
date) is simply untrue, and Cameroon must know that it is untrue.18 So far as licensing is concerned, the
19
point has already been established. So far as actual wells are concerned, it can be seen from Fig. 13.6,
which shows wells drilled by the three States concerned in the relevant
area, in each case showing the
year in which the well was drilled. It would be hard to imagine a more p
owerful demonstration of
consistent practice.
13.18 It is true that some of these wells were non-productive, and that
others are not now being exploited.
But this is irrelevant to the point made by Fig. 13.6. Each well shown was drilled pursuant to licences
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granted by the State concerned and under its fiscal and regulatory autho
rity. Except in the immediate
20
vicinity of Bakassi, all the wells were openly drilled as of right and w
ithout protest. In short, each State
has in parallel proceeded to the exploration and exploitation of the nat
ural resources of the continental
shelf considered as appertaining to it.
(vi) The value of the oil practice is not affected by the existence of
overlapping licence areas
13.19 Cameroon argues 21 that the existence of certain areas of overlapping licences is sufficie
nt to
eradicate the influence of the oil practice. This is obviously not true
with respect to the areas, now claimed
by Cameroon, which fall outside the area of overlap. Cameroon claims a s
wathe of maritime territory to
the west and south-west of Point G which falls entirely outside any lice
nce area ever granted by it, and
22
entirely within areas licensed by Nigeria. The existence of a dispute as to certain limited areas of
overlap cannot affect the significance of substantial uncontested oil pr
actice in other areas. Indeed, it
highlights the fact.
13.20 It is also significant that, despite the existence of an area of o
verlapping licences from 1978,
Cameroon has (so far as Nigeria is aware) carried out no oil activitie
s in the southern area of overlap,
23
whereas Nigeria has done so.
(vii) The "critical date" of this dispute does not exclude reliance on
the oil practice
13.21 Then Cameroon argues that all Nigerian activity occurred after the
"critical date" of the late
24
1970s. As already explained, this is not true even in relation to the area of
overlap, licences for which
25
were issued by Nigeria well before 1979 and which was already being deve
loped at that time. Moreover
the assertion of a "critical date" in relation to a maritime dispute doe
s not exclude reference to subsequent
developments, especially where (as here) these are essentially an inte
nsification and continuation of
claims asserted long before.
(viii) The Court has never asserted or exercised the power to transfer
existing installations to another State
13.22 Cameroon asserts that "no international court has ever paid attent
ion" to the existence of long-
26
standing concessions and installations. It would be remarkable if this were true, since the "equitable
considerations" which are relevant to maritime delimitation derive not f
rom some general or abstract
equity but from the particular situation of the parties, and their condu
ct specifically in relation to the areas
affected, to the extent that it is clear and unopposed, must be relevant
. But once again Cameroon's
assertions are not true. The position is as set out in Nigeria's Counter-Memorial, which referred in turn,
27
and extensively, to the relevant decisions and statements of the Court. The following remarks are
supplementary.
13.23 In its Counter-Memorial, Nigeria analysed in some detail the most nearly comparable case to the
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present, the Tunisia/Libya case. 28 As to this decision, Cameroon asserts that...
"it was in no way the limits of the oil concessions as such that the Cou
rt took into
consideration in the case concerning the Continental shelf (Tunisia/Libyan Arab
Jamahiriya), but a very old de facto line that both Parties, and the States which they
29
succeeded, had always respected in their relations inter se".
A reading of the relevant passages of the two judgments shows, however,
that it was precisely by their
practice in granting oil concessions that Tunisia and Libya adopted the
pre-independence de facto line.
The Court repeatedly emphasised this, and moreover it paid careful atten
tion to the actual installations in
30
its final delimitation.
13.24 Nigeria has little to add to the treatment of the Gulf of Maine case contained in its Counter-
Memorial. 31 The oil practice in that case arose only in 1965, in relation to a disp
ute which had matured by
1969. Not merely was that practice limited in time; it was also limited
in extent: it concerned "seismic
exploration of minor importance, which involved neither drilling nor the
extraction of petroleum". 32
Moreover, as the Chamber several times noted, the dispute was about fish
eries not oil: the equivocal oil
practice within the Gulf of Maine had nothing to do with fishing for cod
on the Grand Banks. Nonetheless
the Chamber spent a considerable time dealing with the various arguments
based on acquiescence: it
certainly did not treat them as a priori irrelevant, even if in the end it rejected them.
33
13.25 Cameroon cites a different passage from the Chamber's judgment in
Gulf of Maine, in support of
its thesis of the irrelevance of the practice of the parties in maritime
delimitation. But the passage is taken
out of context. The Chamber there was concerned with the argument that h
istorically the United States
and/or Canada had enjoyed on the Grand Banks a de facto predominance in fishing which the Court
should take into account in delimitation. The Chamber pointed out that t
he earlier practice had occurred
34
not under the modern EEZ regime but under the regime of the high seas. Any de facto predominance the
parties may have enjoyed over fisheries under the old law could not, in
its view, be translated into a
relevant consideration in the bilateral context of maritime delimitation
between two coastal States. Thus
there was "no reason to consider de jure that the delimitation which the Chamber has now to carry out
within the areas of overlapping apparent as between the respective exclu
sive fishery zones must result in
each Party's enjoying an access to the regional fishing resources which
will be equal to the access it
35
previously enjoyed de facto". It was for this reason that the Chamber concluded (in the passage reli
ed
on by Cameroon) that "the respective scale of activities connected with
fishing - or navigation, defence or,
for that matter petroleum exploration and exploitation - cannot be taken
into account as a relevant
circumstance". 36As to fisheries (the real issue at stake in the case) that conclusion
was obvious. The
previous "scale" of activities under a different legal regime was irrele
vant to delimitation under the new
system of exclusive fisheries zones. Of course there had never existed o
n the Grand Banks an exclusive
territorial right to fish, granted by one State and not objected to by t
he other. But that is precisely what has
existed in the disputed area in the present case for many years in respe
ct of hydrocarbon activity.
Moreover the Chamber reached the conclusion cited above only after it ha
d, at length, considered and
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rejected on their merits various arguments related to the oil practice.
To repeat, these arguments were
treated as relevant in principle, even if in the particular case they fa
iled to persuade the Chamber.
37
13.26 The decision of the Arbitral Tribunal in the Yemen/Eritrea case on maritime delimitation was
given since the filing of the Counter-Memorial, and justifies a brief mention here. An initial point about
the decision is the care which the Tribunal took to avoid its line trenc
hing on the possible rights of a third
State, Saudi Arabia: this has already been discussed. 38 As to the oil practice of the parties, Cameroon
asserts that the Tribunal "refused to base itself" on the oil practice (
by comparison with its decision on
sovereignty over the islands). 39 What the Tribunal actually said was as follows:
"132. The Tribunal has decided... that the international boundary shall
be a single all-
purpose boundary which is a median line and that it should, as far as pr
acticable, be a
median line between the opposite mainland coastlines. This solution is n
ot only in accord
with practice and precedent in the like situations but is also one that
is already familiar to
both Parties. As the Tribunal had occasion to observe in its Award on So
vereignty
(paragraph 438), the offshore petroleum contracts entered into by Yeme
n, and by Ethiopia
and by Eritrea, 'lend a measure of support to a median line between the
opposite coasts of
Eritrea and Yemen, drawn without regard to the islands, dividing the res
pective jurisdiction
of the Parties'. In the present stage the Tribunal has to determine a bo
undary not merely for
the purposes of petroleum concessions and agreements, but a single inter
national boundary
for all purposes. For such a boundary the presence of islands requires c
areful consideration
of their possible effect upon the boundary line; and this is done in the
explanation which
follows. Even so it will be found that the final solution is that the in
ternational maritime
boundary line remains for the greater part a median line between the mai
nland coasts of the
40
Parties."
It should be noted that the oil practice relied on by Yemen and (to a l
esser extent) Eritrea was, by
comparison with the present case, desultory and unspecific. Most of the
activity involved seismic and
other surveys. Only a few wells had been drilled, and none had proved pr
oductive. Nonetheless the
Tribunal regarded the references to the median line in some of the oil d
ocumentation as relevant and
supportive of a median line boundary. In the context of a single purpose
boundary in an area where
fisheries rather than oil activity were significant (both historically
and in present day terms), the Tribunal
was careful not to leap to a conclusion based only on the oil practice.
But it is misleading for Cameroon to
say that the Tribunal "did not base itself" on the oil practice, when th
is was explicitly taken into account
as a relevant factor.
13.27 The distinction between the relevance of offshore activity in term
s of maritime delimitation and its
relevance or otherwise to issues of sovereignty over land areas was also
recognised by the Court of
41
Arbitration in the Yemen-Eritrea case. It applies equally here. These issues have already been dealt with
42
in Chapter 3.
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13.28 To summarize, despite Cameroon's assertions, it remains true that
no court or tribunal in the modern
period has delimited maritime boundaries in such a way as to transfer ex
isting wells or other installations
from one party to another, let alone whole fields which have been the su
bject of substantial unprotested
investment over time. 43 Cameroon fails to face up to the implications of its own case when it s
ays that it
is entirely conceivable "that the Parties will have, following the Court
's judgment, to review the oil rights
and concessions that they have granted in the maritime zone in dispute".
44 But it will not be a question of
"reviewing" anything. If the Court were to uphold Cameroon's claim, ther
e would be no question of
negotiating, or of "the Parties" doing anything. Nigeria would be exclud
ed. The former Nigerian licensees
of blocks awarded to Cameroon would have to go cap in hand to Cameroon t
o secure (at what price, and
for whose benefit?) the recognition of rights they had every reason to
believe were secure, in respect of
substantial areas to which (before 1995) Cameroon had never made the s
lightest claim. Companies which
lost the subsequent Cameroon "bidding round" in relation to former Niger
ian blocks could well seek to
bring claims against Nigeria in relation to the loss of their substantia
l investments in those areas. To assert
that such considerations are irrelevant, as Cameroon does, is untenable.
(ix) Putative effect of the Cameroon claim to the Bakassi Peninsula
13.29 Nigeria turns to consider the potential impact of Cameroon's terri
torial claim to the Bakassi
Peninsula. It will be shown that, even on the assumption that Cameroon's
on-shore territorial claim were
to be upheld, the maritime boundary between the Parties would fall withi
n the area of overlapping
licences, out to a tripoint with Equatorial Guinea.
13.30 In presenting its claim line, Cameroon proceeds from the assumptio
n (quod non) that the Court will
uphold Cameroon's claim to Bakassi itself. In this respect Nigeria respe
ctfully refers the Court to Fig.
13.7. This shows offshore installations and wells, as well as the Nigeria-Eq
uatorial Guinea maritime
boundary (which is being provisionally applied pending ratification of
the Treaty of 23 September 2000),
and Equatorial Guinea's equidistance claim. It should be noted that Equa
torial Guinea's equidistance claim
still applies north and east of Point (i).5 It also applies in the event that the Treaty of 23 September 2000
is not ratified.
13.31 Cameroon presents this aspect of its claimed maritime boundary as
falling into two components: (1)
out to Point G, and (2) beyond Point G to the tripoint with areas clai
med by Equatorial Guinea.
13.32 As to the sector out to Point G, this depends, however, on conside
rations relating to the Maroua
Declaration. Nigeria has already given its reasons for rejecting the val
idity of that Declaration. 46
Consistently with that long-standing position, Nigeria does not rely on
that Declaration as establishing a
maritime boundary in the Cross River Estuary.
13.33 It may be noted that, despite its heavy reliance on the Maroua Dec
laration, Cameroon tends to
47
undercut that reliance by suggesting that the Declaration was somehow un
duly favourable to Nigeria. It
is true that the Maroua line runs slightly to the east of the equidistan
ce line that would have resulted from
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a land boundary up the Akwayafe. Cameroon fails, however, to take accoun
t of the vital Nigerian interest
in unimpeded navigation to the major naval and commercial port of Calaba
r. Moreover it should be noted
that, even on Cameroon's own case, approximately three quarters of the coastline of the Cross River
Estuary appertains to Nigeria. Cameroon's territorial claim is confined
to the shorter eastern side of the
Estuary.
13.34 However this may be, it is clear that there is a strong and confir
med practice of the parties,
especially as to the offshore area, in licensing and developing oil inst
allations and other activities. The
resulting oil practice line carries right down to the area of the geogra
phical tripoint with Equatorial
Guinea. For these reasons, in Nigeria's submission, even on the basis (
quod non) of Cameroon's territorial
claim to Bakassi, Cameroon's claim to a maritime boundary should have be
en presented in such a way as
to take account of, and not to disturb, the wells and other installations on each side of the line. In other
words, it should have followed a line drawn between the territories of t
he two Parties, separating the areas
covered by existing unopposed licences granted by the Parties and mainta
ining on each side of the
boundary the locations of any wells or other installations or facilities
drilled or erected without protest by
the other Party. Such a line would have been a simple matter to draw, as
a glance at Fig. 13.8 will show.
13.35 In this context it must be stressed again that Nigeria's and Camer
oon's wells near the oil practice
line were mostly drilled before the present dispute arose, under licence
s issued long before. There could
be no basis for disregarding the long-standing practice of both States.
It is for this reason, inter alia, that
Cameroon's proposal for an immediate westerly leap from Point "G" to Poi
nt "H" could never have been
regarded as acceptable. Such a sharp change in the direction of the line
would on any view be without
justification. It does not reflect the practice of the Parties, or indee
d general practice in maritime
delimitation for adjacent coasts. It would involve the severing of Niger
ian pipelines and the transfer to
Cameroon of currently producing Nigerian wells linked up by those pipeli
nes. It is arguable that the
equidistance line should be followed: however this would only be appropr
iate to the extent that it would
not involve transferring installations or wells from one Party to anothe
r. Moreover it is desirable in any
case for a zone of 500 metres to be left around any existing installatio
ns, to maintain their security and to
allow for servicing and navigation in their immediate vicinity.
13.36 For these reasons, on the basis of its claim to the Bakassi Penins
ula - which of course Nigeria
entirely rejects - the maximum claim that Cameroon could properly have a
dvanced would have provided
for the maritime boundary between the parties to proceed southwards then
south-westwards to the
equidistance line as between East Point (Nigeria) and West Point (Bak
assi), and then along the
equidistance line until it reached the maritime boundary with Equatorial
Guinea in respect of Bioko, at the
approximate position latitude 4° 4' N, longitude 8° 19' E, but sub
ject to leaving a zone of 500 metres
around existing fixed installations of any party. Even on this basis, gi
ven the character of these confined,
crowded and much-used waters, it would have been appropriate for the Cou
rt to leave the parties, in the
first instance, to seek to reach agreement on a precise line, reserving
to itself the right to determine the
line itself in the absence of agreement. However, for illustrative purpo
ses a line meeting these criteria is
shown on Fig. 13.8.
(x) Conclusion
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13.37 For these reasons, the Court should reject Cameroon's claim to mar
itime territory beyond the area of
48
overlapping licences, as shown in Fig. 10.2. Apart from other considerations, that claim is made far too
late and is contradicted by the practice of the parties over a substanti
al period of time.
C. The Resolution of the Maritime Boundary as between Nigeria and Camero
on: Establishing Nigeria's
Claim
13.38 Nigeria turns then to the question of ascertaining the maritime bo
undary in the waters to the north
and east of Point (i). In Part I of this Rejoinder, Nigeria demonstrated its sovereignty over the Bakassi
Peninsula: that demonstration need not be repeated here. Nigeria's sover
eignty over the Bakassi Peninsula
has the following consequences for the dispute over the maritime boundar
y.
(i) Nigeria's maritime boundary in and beyond the Rio del Rey
13.39 Within the Rio del Rey itself, the maritime boundary will run down
the median line towards the
open sea. The waters of the Rio del Rey are at all points less than 24 n
.m. wide, and there is no basis for
adopting anything other than a median line boundary for these territoria
l waters, as contemplated in
Article 15 of the United Nations Convention on the Law of the Sea. Even
beyond 12 miles from the
Peninsula, the boundary then, prima facie, follows the equidistance line out in the direction of Bioko, until
it meets the Equatorial Guinea-Bakassi equidistance line. A relevant fac
tor here is a substantial sand
island, not shown on earlier charts, which can be seen from satellite ph
otography to the east of the mouth
of the Rio del Rey and which is within 12 miles of the coast. The equidi
stance line is affected by that
island, so that, as seen on Fig.13.9, it turns south-westwards within a relatively short distance from the
mouth of the Rio del Rey. That island lies in front of the south-west fa
cing Cameroon coastline and within
12 n.m. of its coast. In the circumstances, there is no reason to think
that an equidistance line in this area
is inequitable to either Party. This is especially so if one takes into
account the substantial disproportion of
49
coastal lengths in favour of Nigeria, which has a ratio of the order of
1:3.
13.40 For these reasons, Nigeria submits that the maritime boundary betw
een the Parties follows the
median line down the Rio del Rey, and then follows the equidistance line
south-westwards until it meets
the tripoint with Equatorial Guinea, at approximately latitude 4° 6'
N, longitude 8° 30' E.
(ii) Confirming the equity of the result
13.41 As noted already, international jurisprudence supports reference t
o the proportionality of coastal
frontages as a way of checking the equity of an outcome reached by refer
ence to other considerations. 50
This is not done by employing any rigid arithmetical or geometrical form
ula, but as a general matter of
impression, taking into account other relevant circumstances including t
he position of third States. As to
the boundary shown in Fig. 13.9, the following comments may be made:
(1) The ratio of relevant coastal frontages is decidedly in Nigeria's
favour, as shown in paragraph 13.13
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above. Indeed, even on the basis of Cameroon's claim (quod non) that Bakassi is Cameroonian territory,
the ratio is still 1:1.3 in favour of Nigeria.
(2) In the immediate vicinity of the Cross River Estuary, the coastlin
es of the two parties follow what is
effectively a straight line, assuming that a closing line is drawn for t
his purpose across the Estuary itself.
All the waters of the Estuary are territorial waters.
(3) Taking, for the sake of argument, a line from West Point at the we
stern entrance to the Cross River
Estuary down to the south-western tip of Bioko, more than 50% of the wat
ers eastwards of that line and
up to the closing line between Debundscha Point and Punta Europa are ter
ritorial waters, not EEZ or
51
continental shelf. Of the area falling outside territorial waters here, half is claimed by
Equatorial Guinea
in respect of Bioko, and the areas left to the Parties in the present pr
oceedings are correspondingly limited.
(4) There is no reason, in equity or otherwise, why Nigeria should be
required to compensate Cameroon
for the adverse effect on its potential maritime zones produced by a thi
rd State, Equatorial Guinea.
Nigeria for its own part is also markedly affected by Bioko, including i
n areas well to the south-west.
(5) The practice of the Parties has for a long time supported somethin
g close to an equidistance line in this
area, including in relation to Equatorial Guinea (Bioko).
(6) Such a delimitation would leave to each Party the areas lying dire
ctly in front of its coasts.
13.42 Thus the result depicted in Fig. 13.9 would not depart from any limits indicated by the notion of
proportionality. In particular the result of the delimitation would not
have been so disproportionate to
Cameroon, taking into account these various factors, as to call for any
adjustment in favour of Cameroon
at Nigeria's expense. It should be stressed that the legal criterion doe
s not involve exact proportionality:
rather it is whether the disproportionality of the result is such as to
warrant some adjustment in favour of
52
one or other of the States concerned. The result illustrated in Fig. 13.9 would involve no such
disproportionality. It follows that there is no case on the basis of dis
proportionality for Cameroon's actual
claim lines. But even if there were, the fact remains that Cameroon has
acquiesced in and accepted a
delimitation based on the oil practice line for a period which is effect
ively as long as Cameroon's own
independence. The legitimate interests underlying four decades of practi
ce are sufficient in themselves to
rebut any claim that might be made on grounds of some abstract "equity".
13.43 Similar considerations would apply to the putative maritime bounda
ry depicted in Fig. 13.8 referred
to at paragraph 13.36 above. Such a boundary would not produce an inequi
table or disproportionate result
53
so far as Cameroon is concerned, given what is still a limited coastal f
rontage in Sector 1. In particular
there is no basis for assuming that Cameroon's coastal frontage in Secto
r 1 could have generated maritime
zones exclusively at Nigeria's expense.
D. Conclusions
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13.44 For all these reasons, Nigeria submits that the Court should:
(1) reject Cameroon's claim to a maritime boundary to the west and sou
th of Point "G", going beyond the
area of overlapping licences as shown on Fig. 10.2;54
(2) having upheld Nigerian sovereignty over the Bakassi Peninsula:
(a) confirm that the respective territorial waters of the two States a
re divided by a median line boundary
within the Rio del Rey;
(b) delimit the respective maritime zones of the parties in accordance
with the principle of equidistance, to
the point where the line so drawn meets the median line boundary with Eq
uatorial Guinea at
approximately latitude 4° 6' N, longitude 8° 30' E.
13.45 But even on the basis of Cameroon's unjustified claim to the Bakas
si Peninsula, the maximum claim
line that Cameroon could advance would involve delimiting the respective
maritime zones of the Parties
beyond the Cross River Estuary in the manner shown in Fig. 13.8. The effect is to maintain, on each side
of the line so drawn, all wells and installations which were drilled or
constructed under licences or permits
granted by either party without protest from the other at any time prior
to 29 March 1994, and to leave a
safety zone around such installations of not less than 500 metres. Other
wise such a line would proceed in
accordance with the principle of equidistance to the point where the lin
e so drawn meets the median line
boundary with Equatorial Guinea at approximately latitude 4° 4' N, lo
ngitude 8° 19' E.
13.46 In any event, there will remain the question of connecting the fin
al point on the boundary so drawn
with Point (i) of the Nigeria-Equatorial Guinea maritime boundary as d
rawn by the Treaty of 23
September 2000. This is a matter which directly concerns Equatorial Guin
ea. In Nigeria's respectful
submission, it can and should be left to be carried out by negotiations
between the Parties to that Treaty as
55
envisaged in its Article 3.
__________
1 cf., however, Cameroon's Map R23, "La Solution Equitable".
2 See above, Fig. 10.7, (referred to in para. 10.37); Fig. 10.8 (refe
rred to in para. 10.39).
3 See above, para. 12.25 and the authorities cited.
4 e.g. in the Gulf of Maine Area case, I.C.J. Reports 1984, p. 271, para. 37.
5 See above, para. 10.10.
6 As the Court stressed, for example, in the North Seas Continental Shelf Cases, I.C.J. Reports 1969 p. 37, para.
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59.
7 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 83, para. 116, cited again by the
Court in Application for Revision and Interpretation of the Judgment of 24 Februa
ry 1982 in the Case concerning
the Continental Shelf Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1985, pp. 208-209, para. 32.
8 I.C.J. Reports 1984, p. 270, para. 31.
9 ibid., p. 336, para. 221.
10 Since the coastline has a substantial number of large estuaries and i
ndentations, it is reasonable to estimate
coastal frontages by the use of straight lines following the general dir
ection of the coast, especially since in every
case the land lying behind those lines belongs to the coastal State. The
purpose of doing so, of course, is not to
generate an arithmetical formula for the purposes of allocating maritime
zones but to provide one measure by
which the overall result of relevant considerations can be assessed as "
equitable". See above, paras. 12.26-12.29.
11 Nigeria's claim encompasses a Nigerian coastal frontage up to the Rio
del Rey (including Bakassi).
12 Cameroon's claim would involve a Cameroon coastal frontage up to East
Point on the Bakassi peninsula.
13 See above, paras. 9.3-9.9.
14 This is not because Nigeria has unconditionally conceded to Equatoria
l Guinea sovereign rights over the areas
to the east and south of that line: it will do so if and when the Treaty
of 2000 has been ratified by the two States
and has entered into force. However, at least until either party to that
Treaty announces that it has decided not to
ratify it, Equatorial Guinea has a legitimate legal interest in the area
s concerned. In the event that the Treaty of
2000 does not enter into force, presumably Equatorial Guinea's equidista
nce claim will revive.
15 RC, paras. 9.106-9.117.
16 RC, paras. 9.109-9.110 and Map R25 at p. 437.
17 RC, paras. 9.99-9.105.
18 It is a feature of Cameroon's pleadings that they make no attempt to
present to the Court information which is,
and has long been, in the public domain. See RC, paras. 9.106-9.109, and
cf. also RC, paras. 5.11-5.16 (which
takes the matter no further). Yet it is Cameroon which is the Applicant
and which has the onus of proof in this
case. It has made no attempt to be open with the Court in relation to th
e factual situation in the maritime domain,
or its own practice.
19 See above, paras. 10.16-10.22 with accompanying maps and graphics.
20 Cameroon concedes that it was silent in the face of Nigerian activity
: RC, paras. 9.114, 9.115.
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21 RC, paras. 9.110-9.112.
22 See above, paras. 13.15(2) and (3) and Fig. 13.5.
23 Compare the asserted and actual operations of Cameroon on its graphic
, "Limite des opérations", shown as Fig.
10.1. See also para. 10.11 above.
24 RC, para. 9.108.
25 See above, para. 12.4.
26 RC, para. 9.105.
27 NC-M, paras. 21.24-21.31.
28 I.C.J. Reports 1982 p. 18; see also the Application for Revision and Interpretation, I.C.J. Reports 1985 p. 192.
For Nigeria's account of these decisions see NC-M, paras. 21.25-21.26.
29 RC, para. 9.100.
30 The relevant passages from the two decisions are set out in full in N
C-M, paras. 21.25-21.26.
31 NC-M, para. 21.27.
32 I.C.J. Reports 1984, p. 307, para. 136, where the Chamber refers to r
emarks of the United States.
33 RC, para. 9.103.
34 I.C.J. Reports 1984, p. 341, para. 235.
35 ibid., p. 342, para. 236.
36 ibid., p. 342, para. 237.
37 On which Cameroon also relies: RC, para. 9.103.
38 See above, para. 11.11.
39 RC, para. 9.103.
40 Award of 17 December 1999, para. 132.
41 In fact the Tribunal concluded that the oil concession activity had l
ittle or no significance in terms of its
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decisions on sovereignty over the islands: see the Award of 9 October 19
98, I.L.R. Vol. 114, p. 114, para. 437.
42 See above, paras. 3.286-3.288
43 Cameroon seeks to justify its "silence with regard to Nigerian conces
sions" by saying that "Cameroon... is not
aware of official protests by Nigeria with respect to Cameroonian conces
sions" (RC, para. 9.114). That is,
however, precisely the point. Except as to Bakassi itself and, to a less
er extent, the area of overlapping licences off-
shore, both States were silent.
44 RC, para. 9.105 (emphasis added).
45 See above, para. 10.35.
46 See above, paras. 3.18-3.40.
47 RC, paras. 8.84-8.85.
Referred to at para. 10.12 above.
49 See above, para. 13.13.
50 See the cases cited in paras. 12.29-12.30 above.
See the sketch map of Sector 2, Fig. 13.3 referred to in para. 13.7, abo
ve.
52 See the award of the Arbitral Tribunal in the Yemen-Eritrea case (Phase II), cited (with references to earlier
jurisprudence) in para. 12.29 above.
53 See above, para. 13.31.
54 Referred to at para. 10.12, above.
55 See above, para. 10.35 (4).
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 14
THE DEVELOPMENT OF THE PLEADINGS
A. General
14.1 In its Reply Cameroon criticises Nigeria for its "high degree of discretion" with re
spect to the
1
previous stages in the present case. Cameroon then purports to summarise the limited extent to which
Nigeria dealt with those previous stages in its Counter-Memorial, and regards Nigeria's position in that
2
respect as "semi-caricatural" and "unnuanced."
14.2 Nigeria rejects this criticism. It referred to the previous stages
only briefly because that was all that
was necessary for the purpose of the argument developed in its Counter-Memorial: the Court has
judicial notice of its previous Judgments, and there is no need for Part
ies to remind the Court of them
unless there is some particular point to be made in relation to that Par
ty's argument. Moreover, the
Court's Judgment of 10 February 1996 was for provisional measures in the context of incidents
occurring after the institution of the proceedings, the Judgment of 11 J
une 1998 was concerned with
jurisdiction, and the Judgment of 25 March 1999 was related to the earlier Judgment
on jurisdiction:
none of these Judgments, therefore, bore directly on the issues on the merits which was the subject of
Nigeria's Counter-Memorial. Nigeria referred as appropriate to all those Judgments in its Counter-
Memorial, but no extended treatment of them was called for at that stage.
14.3 Moreover, Nigeria's brief mention of the course of the previous pro
ceedings was accurate, within
the limits necessarily involved in being brief. The same cannot be said
of Cameroon's treatment of the
Court's Judgments: at paragraph 6.5(5) above Nigeria gives a clear exa
mple of a gross distortion by
Cameroon of what the Court said in its Judgment of 11 June 1998, implyin
g the Court's approval for a
Cameroonian position when in fact the Court's words were in exactly the
contrary sense.
14.4 Now that Nigeria has seen Cameroon's Reply, and in order to deal fully with the various points
which arise on it, it is necessary for Nigeria to deal more fully with t
he various stages in the
development of this case. Nigeria will accordingly do so, although only
in so far as is necessary to deal
with the allegations of international responsibility raised against it b
y Cameroon.
14.5 Since Cameroon has chosen to take the opportunity in Chapter 11 of
its Reply to refer once again to
the delay occasioned by Nigeria in presenting Preliminary Objections, and then its Request for
Interpretation, Nigeria must equally take this present opportunity to state that
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(1) Cameroon knew of the possibility that Nigeria would raise Preliminary Objections, in accordance
with its clear right to do so under the Statute: such Objections are indeed a normal part of the procedure
in cases before the Court, particularly where the Court's jurisdiction i
s based on Declarations under
Article 36.2 of the Statute;
(2) Nigeria's Request for Interpretation gave rise to a separate proceeding before the Court: it thus had
no direct effect on the timetable for the substantive proceedings on the
merits. Although in the event
Nigeria was, in the exercise of the Court's discretion, given an extensi
on of two months for the
presentation of its Counter-Memorial in order to enable it to take account of the Court's Judgment of 25
March 1999, this was because of delays which were not of Nigeria's makin
g and were in no way a
necessary consequence of Nigeria having presented its Request for Interpretation.
B. Cameroon's Application of 29 March 1994
14.6 In paragraph 20 of its original Application Cameroon asked the Court to make a number of findings
against Nigeria, namely (in brief) that
(a) sovereignty over Bakassi vested in Cameroon,
(b) Nigeria was violating the fundamental principle of respect for fro
ntiers inherited from
colonisation,
(c) Nigeria's use of force against Cameroon violated international law
,
(d) Nigeria's military occupation of Bakassi violated international la
w, and
(e) Nigeria was under a duty to end that military occupation and must
withdraw its troops
from Bakassi.
Cameroon then requested the Court to adjudge and declare
"(e') that the internationally unlawful acts referred to under (a),
(b), (c), (d) and (e) above
involve the responsibility of the Federal Republic of Nigeria;"
and went on (paragraph (e")) to request reparation in an amount to b
e determined by the Court.
C. Cameroon's Additional Application of 6 June 1994
14.7 Cameroon's Additional Application followed the same pattern, in paragraph 17 requesting from the
Court a number of findings against Nigeria, namely (in brief) that
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(a) sovereignty over the disputed parcel in the area of Lake Chad vest
ed in Cameroon,
(b) Nigeria was violating the fundamental principle of respect for fro
ntiers inherited from
colonisation and its recent commitments concerning the demarcation of fr
ontiers in Lake
Chad,
(c) Nigeria's occupation of the said parcel in the area of Lake Chad v
iolated international
law, and
(d) Nigeria was under a duty to withdraw its troops from the Lake Chad
area.
Cameroon then requested the Court to adjudge and declare
"(e) that the internationally unlawful acts referred to under (a), (
b), (c), and (d) above
involve the responsibility of the Federal Republic of Nigeria;" 3
and went on (paragraph (e')) to request reparation in an amount to b
e determined by the Court.
4
14.8 By its Order of 16 June 1994 the Court agreed that the Additional Application could be treated as
an amendment to the initial Application, so that the Court could deal with both in a single case.
D. Cameroon's Request for the Indication of Provisional Measures dated 10 February 1996
14.9 According to Cameroon's version of events "the Nigerian military au
thorities launched a series of
violent attacks against the Cameroonian forces in the Bakassi Peninsula
on 3 February 1996, which led
Cameroon to make an application to the Court on 10 February 1996, for pr
ovisional measures." 5
14.10 For its part Nigeria denied that any such attack by Nigerian force
s had occurred, and stated that
instead it had been Cameroonian forces which had attacked Nigerian civil
ian settlements and military
positions in Bakassi and that Nigerian forces had responded in exercise
of their right of self-defence.
Moreover, Nigeria added that in any event, since Bakassi belonged to Nig
eria, Nigerian civilian
institutions and armed forces were fully entitled to be in Bakassi and t
o deploy there in whatever way
seemed to the Nigerian authorities appropriate.
14.11 In its Order of 15 March 1996 the Court indicated certain provisio
nal measures, and held:
"(1) Unanimously,
Both Parties should ensure that no action of any kind, and particularly
no action by their
armed forces, is taken which might prejudice the rights of the other in
respect of whatever
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judgment the Court may render in the case, or which might aggravate or e
xtend the
dispute before it;
(2) By 16 votes to 1,
Both Parties should observe the agreement reached between the Ministers
for Foreign
Affairs in Kara, Togo, on 17 February 1996, for the cessation of all hos
tilities in the
Bakassi Peninsula;
(3) By 12 votes to 5,
Both Parties should ensure that the presence of any armed forces in the
Bakassi peninsula
does not extend beyond the positions in which they were situated prior t
o 3 February 1996;
(4) By 16 votes to 1,
Both Parties should take all necessary steps to conserve evidence releva
nt to the present
case within the disputed area;
(5) By 16 votes to 1,
Both Parties should lend every assistance to the fact-finding mission wh
ich the Secretary-
6
General of the United Nations has proposed to send to the Bakassi Penins
ula."
14.12 It is to be noted that the Court did not find that the Cameroonian
allegations were well-founded,
and that the Court addressed its five specific provisional measures to t
he two parties equally. Moreover,
during the course of its reasoning, the Court made the following observa
tions which are relevant to the
merits of the case in the context of State responsibility:
(1) The Court concluded that the differing versions of events given by
the Parties "have not enabled the
Court, at this stage, to form any clear and precise idea of those events
", although it was clear from the
submissions of both Parties that there had been military incidents in th
e Bakassi Peninsula and that they
had caused suffering (including loss of life) to individuals as well a
s material damage (Order, paragraph
38).
(2) The Court held that, in the context of proceedings concerning the
indication of provisional measures,
it "cannot make definitive findings of fact or of imputability, and the
right of each Party to dispute the
facts alleged against it, to challenge the attribution to it of responsi
bility for those facts, and to submit
arguments, if appropriate, in respect of the merits, must remain unaffec
ted by the Court's
decision" (Order, paragraph 43).
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14.13 Nigeria also recalls that in response to a question put to the Par
ties by Vice-President Schwebel,
the Co-Agent of Nigeria stated:
"It should be borne in mind that the Bakassi Peninsula has been part of
Nigeria and from
time immemorial has been administered as such. In this context, the arme
d forces of
Nigeria as and when required maintain units stationed at various points
within the region,
7
and have likewise patrolled the region."
8
14.14 Finally, Nigeria takes strong exception to the allegations by Came
roonthat Nigeria has been in
serious violation of the Court's Order of 15 March 1996. For the reasons
set out below (paragraph
15.53), Nigeria rejects these Cameroonian allegations as unfounded.
E. Cameroon's Memorial
14.15 Cameroon's Memorial, dated 16 March 1995, alleged that Nigeria bore international responsib
ility
for
(1) various incidents said to have occurred;
(2) non-compliance by Nigeria with its treaty obligations relating to
- the prohibition against the use of force,
- Cameroon's territorial sovereignty, and
- the principle of non-intervention;
(3) non-compliance with the principle of uti possidetis juris.
F. Nigeria's Preliminary Objections, particularly the Sixth Preliminary Objection
14.16 In the light of Cameroon's Memorial, Nigeria raised a number of Preliminary Objections. So far as
concerned questions of State responsibility, Nigeria submitted, in its Sixth Preliminary Objection, that
the issues of State responsibility raised by Cameroon should be declared
inadmissible. The grounds for
this submission were that Cameroon's Application, Additional Application and Memorial were
inadequate as to the facts on which they were based, including the dates
, circumstances and precise
locations of the alleged incidents involving Nigerian State organs, and
that that made it impossible for
Nigeria to have the knowledge to which it was entitled of the circumstan
ces said by Cameroon to give
rise to Nigeria's international responsibility and also made it impossib
le for the Court to carry out a fair
and effective judicial examination of, or make a judicial determination
on, the issues of State
responsibility raised by Cameroon.
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14.17 The Court in its Judgment of 11 June 1998 rejected Nigeria's Sixth Preliminary Objection by
fifteen votes to two. So far as concerns questions of State responsibili
ty the Court made a number of
observations which are relevant to the subsequent proceedings in the cas
e, namely -
(1) the Statute of the Court does not preclude an Applicant from makin
g later additions to the statement
in its Application of the facts and grounds on which a claim is based (
paragraph 98);
(2) in doing so the Applicant is not restricted strictly to an elabora
tion of the case presented in its
Application, so long as the result is not to transform the dispute broug
ht before the Court by the original
Application into another dispute which is different in character (parag
raph 99);
(3) while Cameroon's statement in its Application of the facts and grounds on which it relies is sufficient
to fulfil the conditions laid down in the Statute, "this does not, howev
er, prejudge the question whether,
taking account of the information submitted to the Court, the facts alle
ged by the Applicant are
established or not, and whether the grounds it relies upon are founded o
r not. Those questions belong to
the merits ..." (paragraph 100); and
(4) while the alleged factual inadequacy of Cameroon's Application does not make it impossible for
Nigeria to respond effectively to Cameroon's allegations or for the Cour
t ultimately to make a fair and
effective determination in the light of the arguments and evidence then
before it, it "is the applicant
which must bear the consequences of an application that gives an inadequ
ate rendering of the facts and
grounds on which the claim is based" (paragraph 101).
14.18 Cameroon, in its Reply, castigates Nigeria for "interpreting the Decision of 11 June 1998 as n
ot
10
posing any limit on Cameroon's right to present new facts". Cameroon cites in this respect NC-M
paragraph 24.9. Not only is that paragraph expressly concerned with the
Court's Judgment of 25 March
1999 and not that of 11 June 1998, but nowhere in that paragraph did Nigeria say or imply anything
about the Court not having posed any limit on Cameroon's right to presen
t new facts.
14.19 The paragraph cited by Cameroon, as is clear from both its terms a
nd its context, was concerned
solely with the problem posed for Nigeria by the times at which Cameroon
was bringing forward
allegations of various incidents which were said to have occurred, and t
he varying dates (e.g. pre-
Application, post-Application but pre-Memorial, or in the unspecified future) at which those incidents
were or might be said to have taken place. Nigeria was making the point
that in view of the Court's
Judgment of 25 March 1999, Nigeria would in its Counter-Memorial deal with all alleged incidents
mentioned by Cameroon up to then, irrespective of when they were said to
have occurred or when
Cameroon brought them forward.
14.20 As to incidents which might be put forward in future (the possibi
lity of which the Court had not
excluded), Nigeria went on to state that it reserved the right to seek
the fullest further opportunity to
respond properly to them. Nigeria said nothing about other limits which
might apply to the bringing
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forward by Cameroon of yet further incidents in the future, since it was
evidently not the purpose of that
paragraph to consider all the other elements which would need to be cons
idered when dealing with the
11
merits (if any) of particular incidents, existing or future.
G. Nigeria's Request for Interpretation
14.21 Nigeria found part of the Court's Judgment on its Preliminary Objections unclear. The Court had
found that Cameroon was entitled to add to its initial statement of the
facts and grounds on which its
claim of international responsibility was based, and that in doing so it
was not restricted strictly to an
elaboration of the case presented in its Application (see paragraph 14.17(2) above), i.e. Cameroon could
add new facts about incidents already raised in its Application, and could even apparently add
completely new incidents. Nothing the Court had said indicated how far t
his freedom extended, and in
particular, as had been noted by Nigeria in the proceedings on its Sixth Preliminary Objection, whether
Cameroon was only entitled to adduce new facts about incidents already r
aised in its Application (the
term used by the Court) or whether this extended also to other incident
s mentioned for the first time in
Cameroon's Memorial (and thus after the date on which the proceedings had commenced), or
whether it
extended even to incidents still to be raised by Cameroon for the first time at some later stage in the
future (e.g. in Cameroon's Reply, or even at the hearings themselves). Without clarification as to what
the Court's Judgment on Nigeria's Sixth Preliminary Objection meant in this respect, Nigeria could not
know to which, if any, 'new' facts and incidents it was called upon to r
espond.
14.22 Nigeria contended in effect that consideration of Nigeria's intern
ational responsibility should be
limited to alleged incidents specified in Cameroon's Application and Additional Application and that
12
other incidents should be excluded. In its Judgment of 25 March 1999 the Court, by thirteen votes to
three, declared Nigeria's request for interpretation inadmissible. It he
ld that the interpretation of the
Court's earlier Judgment for which Nigeria contended would remove from t
he Court's consideration
matters of fact and law which the Court had already authorised Cameroon
to submit. Although therefore
the Court confirmed that Cameroon could introduce into the proceedings f
acts and incidents other than
those specified in its Applications (so long as the dispute before the Court was not transformed into
another dispute of a different character), the Court added that "there
is no need for the Court to stress
that it has and will strictly apply the principle of audi alteram partem". 13
H. Nigeria's Counter-Memorial
14.23 In its Counter-Memorial Nigeria -
(1) responded to, and rejected, Cameroon's allegations that Nigeria bo
re international responsibility for
14
the violation of its treaty obligations;
(2) responded to, and rejected, Cameroon's allegations that Nigeria bo
re international responsibility for
15
non-compliance with the principle of uti possidetis;
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(3) responded to, and rejected, Cameroon's allegations that Nigeria bo
re international responsibility
16
arising out of various alleged incidents; and
(4) presented certain counter-claims against Cameroon. 17
14.24 In responding to Cameroon's allegations of various incidents said
to give rise to international
responsibility on the part of Nigeria, Nigeria's Counter-Memorial, in addition to considering in detail (so
18
far as the facts given by Cameroon allowed) the various alleged inciden
ts, addressed certain general
issues. These were:
(1) the need for Cameroon adequately to establish the facts necessary
to found its allegations of
international responsibility on the part of Nigeria; 19
(2) the need for Cameroon, as the Applicant, to discharge the burden o
f proof resting upon it to prove the
facts on which it relies in asserting that Nigeria bears international r
esponsibility arising out of those
20 21
facts, and to establish its case against Nigeria beyond reasonable doubt;
(3) the role of reasonable mistake and honest belief in countering imp
utations of international
responsibility must be taken into account; 22
(4) action by Nigerian armed forces in response to incursions into Nig
erian territory by Cameroonian
23
forces is justified as an exercise of the right of self-defence;
(5) topographical difficulties (such as the lack of a demarcated boun
dary or even a precisely delimited
boundary, and the difficult terrain through which the boundary runs) ha
ve a part to play in understanding
the realities of incidents alleged to have occurred along the land bound
ary; 24
(6) the context in which boundary incidents are cited is very relevant
, and in particular when incidents
are invoked in the context of international responsibility, that respons
ibility has to be established
25
separately for each incident;
(7) claims may be barred because of the lapse of time in putting them
forward; 26
(8) it is essential, if a State is to be held responsible for some inc
ident, that it be established that the
conduct from which responsibility is said to flow is attributable to tha
t State under international law:
whether or not this is the case is a matter to be determined in the ligh
t of the circumstances of each case,
and it is apparent that many of the alleged incidents advanced by Camero
on as a basis for Nigeria's
international responsibility involved conduct by persons for whose behav
iour Nigeria was in no way
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27
responsible;
(9) Cameroon's treatment of the incidents said to give rise to Nigeria
's international responsibility is
confused and inconsistent, leading to great difficulty in identifying pr
ecisely what are the charges being
levelled against Nigeria. 28
__________
1 RC, para. 11.04: "une grande discrétion".
2 RC, para. 11.05: "presque caricaturale": "sans nuances."
3 It is to be noted that this provision did not include within the claim
of Nigeria's international responsibility
those alleged incidents which were said by Cameroon to have occurred alo
ng the land boundary between Lake
Chad and Bakassi, since those incidents were referred to in para. 17(f)
. This is now admitted by Cameroon: see
below, para. 15.4 and paras. 16.26-16.27.
4 I.C.J. Reports 1994, p. 105.
5 RC, para. 1.23: "... les autorités militaires nigérianes ont lan
cé une série d'attaques violentes contre les forces
camerounaises dans la presqu'île de Bakassi, le 3 février 1996, ce
qui a conduit le Cameroun à saisir la Cour, le
10 février 1996, d'une demande en indication de mesures conservatoire
s."
6 I.C.J. Reports 1996, pp. 24-25, para. 49.
7 CR, 96/4, p. 109.
8 RC, paras. 1.25-1.29 and 11.162-11.163.
9 I.C.J. Reports 1998, p. 275, at pp. 317-319, paras. 95-102; p.326, par
a. 118.
10 RC, para. 11.04, third tiret: "... interpréter celui du 11 juin 1998 comme ne posant aucune limite
à la faculté
pour le Cameroun de présenter des faits nouveaux. "
11 Where reference to other elements was relevant, Nigeria duly referred
to the Court's treatment of them. See e.
g. NC-M para. 24.56, where Nigeria referred to a statement by the Court
relating to the question of attributability
of acts to the State. This was not, as Cameroon says, a matter of Nigeri
a somewhat contradicting itself (RC, para.
11.04), but of Nigeria dealing with issues only where they are relevant
and not otherwise.
12 I.C.J. Reports 1999, p.31.
13 ibid., p.38 at para. 15: emphasis added.
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14 NC-M paras. 24.29-24.35.
15 NC-M paras. 24.36-24.40.
16 NC-M paras. 24.41-24.566.
17 NC-M paras. 25.1-25.79.
18 NC-M paras. 24.60-24.566.
19 NC-M paras. 24.42-24.44.
20 NC-M paras. 24.45-24.46.
21 NC-M para. 24.47.
22 NC-M paras. 24.34 and 24.48.
23 NC-M para. 24.49.
24 NC-M para. 24.50.
25 NC-M para. 24.51.
26 NC-M paras. 24.52-24.54.
27 NC-M paras. 24.55-24.58.
28 NC-M para. 24.59.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 15
GENERAL ISSUES
REGARDING STATE RESPONSIBILITY
A. General Observations
15.1 Before commenting in detail on Cameroon's treatment of the question
of Nigeria's alleged
international responsibility, certain general observations need to be ma
de to place this part of the case in
perspective.
15.2 This case is not essentially about State responsibility: it is abou
t title to territory. The State
responsibility aspect is basically unfounded, unproved and a distraction
from the main case. Cameroon
acknowledges the essentially secondary character of its State responsibi
lity claims by itself
characterising them as involving "accessory" matters and not part of the essentials of the case.
Consistently with this view, Cameroon in effect now limits its State res
ponsibility claims to what it
regards as Nigeria's violation of certain fundamental principles and rul
es, and withdraws its claims in
respect of the various specific incidents which it has cited (see below
, paragraph 16.11 et seq.).
15.3 When this case began, Cameroon was concerned primarily with the que
stion of title to the Bakassi
peninsula. For completeness, Cameroon included in its Application various assertions as to Nigeria's
international responsibility for Bakassi-related events and incidents. T
hen, because of what it saw as
Nigeria's challenge to Cameroon's position in relation to certain locati
ons in the Lake Chad area,
Cameroon lodged its Additional Application in June 1994, similarly adding assertions as to Nigeria's
responsibility in relation to those events and incidents.
15.4 At the same time, Cameroon purported to see in Nigeria's conduct, a
nd in particular by reason of
certain incidents alleged to have occurred "all along the frontier betwe
en the two countries", a challenge
by Nigeria to the whole length of the boundary between Lake Chad and the
sea: but it is noteworthy (as
Cameroon now admits) 2 that Cameroon's Additional Application did not include those incidents within
the scope of the sub-paragraph in which it alleged Nigeria's internation
al responsibility.
15.5 Thus from the outset the alleged incidents said to involve Nigeria'
s State responsibility, i.e. those
said to have occurred in the Lake Chad and Bakassi areas, have been inex
tricably bound up with the
underlying substantive question of title to the areas in question.
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B. General issues of principle
15.6 Cameroon asserts as the applicable general principle the propositio
n that an internationally illegal
3
act entails the responsibility of its originator. Nigeria does not question that general principle. But, for
reasons which will be explained, Nigeria does question whether it applies in the circumstances of the
present proceedings so as to attribute international responsibility to N
igeria.
15.7 Cameroon recognises that for a State's international responsibility
to be established, each of two
conditions must be established, namely that the behaviour in question is
attributable to the State, and that
this behaviour constitutes a violation of an international obligation of
the State (RC paragraph 10.06).
Nigeria acknowledges that those two conditions must each be established.
Nigeria will return to a
consideration of those two conditions below (see paragraph 15.8 et seq., and paragraph 15.13 et seq.).
For the moment Nigeria will note that in addition to the two conditions
noted by Cameroon, certain
other requirements must be satisfied if allegations about a State's inte
rnational responsibility are to
succeed in litigation. These include
(1) the necessity for the acts which are the basis for the claim that
a State's international responsibility
has been engaged to be sufficiently clearly established: the burden of p
roof is on Cameroon to give an
adequate rendering of the facts of the matters on which it relies, as we
ll as of the relevant law,
(2) the claim based on conduct said to incur international responsibil
ity must not be time-barred,
(3) the conduct must not have been acquiesced in, e.g. by failing to p
rotest within a reasonable time or
by agreeing to treat an incident as closed, and
(4) the conduct must not fall within accepted justifications or defenc
es, whether these are specific to the
particular rule invoked or of a general character.
C. The need for incidents to be attributable to Nigeria
15.8 Nigeria agrees that a State's exercise of a civil administration in
a given territory, supported where
necessary by military units, and its claims to sovereignty over that ter
ritory, are, by definition, acts
attributable to that State. This is as true for Cameroon as it is for Ni
geria. It means, however, no more
than that the burden of proof as to the attributability of the conduct t
o the State is satisfied: in particular
it does not mean that those acts are thereby shown or admitted to have been unlawfu
l.
15.9 The legal analysis of the situation is not enhanced by Cameroon's r
esort to emotive assertions about
Nigeria's alleged intentions to annex the Bakassi Peninsula and the area
of Lake Chad. 4 The lawfulness
of a State's civil and military presence, particularly in relation to th
e behaviour of both parties in Lake
Chad and Bakassi, depends upon the merits of their underlying claims and
the particular circumstances
of individual events (which will be considered later). For the moment
Nigeria will limit itself to pointing
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out that since in its view it has sovereignty over the disputed Lake Cha
d areas and over Bakassi, its
military and civilian presence there is lawful; it is Cameroon, which ha
s equally openly admitted that,
5
for example, it has military units stationed in Bakassi, which has admitted and provided proof of the
attribution to Cameroon of the violation of Nigerian territorial soverei
gnty by Cameroon military forces.
15.10 Similarly, Cameroon's argument 6 that Nigeria has admitted its violation of Cameroonian
sovereignty in Bakassi and Lake Chad is unfounded, and is rejected by Ni
geria. Nigeria's
acknowledgement that Nigerian civil and military units have been in thos
e areas, while sufficient to
satisfy any 'burden of proof' as to that fact, is not an admission of the quite separate proposition that
those locations were under Cameroonian sovereignty or that the Nigerian
official presence there was
unlawful.
15.11 The same is true of Cameroon's argument 7 that
"some amongst the more serious of the facts it cited to demonstrate Nige
ria's international
liability are acknowledged as proven by the Respondent. In particular, t
here is agreement
between the Parties on the invasion, then the continued presence of the
Nigerian military
forces in the Bakassi Peninsula since 1994. Consequently, Nigeria's liab
ility can be in no
doubt with respect to them."
There is no such acknowledgement of responsibility on the part of Nigeri
a, nor any such agreement by
Nigeria that it engaged in an "invasion" of Bakassi. In fact, the situat
ion is precisely the opposite to that
asserted by Cameroon, since Nigeria's officials were present in those lo
cations because they were under
Nigerian sovereignty. Nigeria's presence was both an exercise of Nigeria
n sovereignty, and evidence of
it.
8
15.12 Nigeria notes Cameroon's acknowledgement that Nigeria does not incur international
responsibility for the acts of private individuals, and that a State is directly responsible only for acts
committed by its own organs and not for the activities of its citizens a
s such. Although in certain
9
circumstances a State may, as Cameroon notes, incur international responsibility for not exercising due
diligence to control private persons' conduct within its territory or fo
r approving their conduct where that
conduct is detrimental to the rights of another State, it depends on the
circumstances of each particular
incident whether such responsibility has been incurred. As Nigeria has s
hown in its examination of the
relevant incidents in its Counter-Memorial, no such Nigerian responsibility in fact arises in respect of
the incidents raised by Cameroon. Moreover, while omissions by a State's
authorities may give rise to
10
that State's international responsibility just as much as its positive a
cts, those omissions must equally
occur where some specific obligation to act exists, and both the particu
lar obligation in issue and the
facts said to involve its breach much be properly established by, respec
tively, argument and evidence. In
both respects Cameroon has failed to discharge this burden resting upon
it.
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D. The need for the conduct complained of to be in breach of an internat
ional obligation resting upon
Nigeria
15.13 Cameroon observes 11that Nigeria argues that it has infringed no binding rules but that the
re is
only a disagreement about the application of a legal principle which, in
Nigeria's view, is not capable of
engaging its international responsibility; Cameroon implies that that is
Nigeria's position across the
board. That implication is not correct. Cameroon misunderstands the poin
t being made by Nigeria (with
which Cameroon itself elsewhere agrees).
15.14 Nigeria's argument was that in three specific contexts (namely th
e application of principles of
international law about title to territory,2 the application of legal principles relating to the course to be
taken by frontiers,13 and the application of the principle uti possidetis juris ) Nigeria had infringed no
binding rules, and that what was in issue in those contexts was only a disagreement about the application
of legal principles; and Nigeria added that a State does not incur inter
national responsibility merely by
propounding a legal argument which differs from that of the other State
concerned. Cameroon's criticism
of Nigeria's position in this matter is the more surprising in that just
two paragraphs later Cameroon
itself accepts the proposition advanced by Nigeria ("One can admit that
the fact that a State defends a
15
specific legal argument does not engage its responsibility ...").
15.15 Cameroon injects into its discussion of this point, almost as an a
side, the proposition that the
distinction between principles and rules is a "purely academic distincti
on", 16 thereby suggesting that
principles are as legally binding as rules. Nigeria rejects that view of
the matter. What is in issue in the
context of a State's international responsibility is its alleged breach
of some specific international legal
obligation applicable in detail to the situation under consideration.
15.16 Rules of international law are legally binding, and give rise to l
egal obligations: they are couched
in specific terms capable of being applied in particular circumstances.
Principles, on the other hand, are
expressed with a greater degree of generality: thus they often do not co
ntain all the elements necessary
for the identification of specific legal obligations deriving from them
(e.g. precisely who owes what to
whom), which in turn means that they cannot be applied directly unless
completed by more specific
rules providing the necessary clarity and certainty. Moreover, even wher
e applicable, a principle can
only be violated by action taken in particular circumstances. The need f
or particularity cannot be
avoided when seeking to establish international responsibility.
15.17 The legal weight attributable to principles depends on the particu
lar circumstances. Although
principles may have a tendency to evolve into legally binding rules, whe
ther a particular principle has
done so is a matter for enquiry.
15.18 The argument is by no means a purely academic matter. It has pract
ical consequences in
differentiating propositions which give rise to specific legal obligatio
ns from those which do not because
they need further qualification and elaboration before they can be appli
ed in particular cases. For
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immediate purposes Nigeria submits that there are principles which have
not yet attained the status and
precision appropriate for binding rules of law, that those principles gi
ve rise to neither an absolute nor a
precise legal obligation and at best require some elaboration and qualif
ication before they can do so, and
17
that, for example, one of those principles is the principle of uti possidetis juris - which, in any event -
18
as Nigeria fully explains later - is not an automatic and absolute rule but rather a presumption.
E. The actual reality of the dispute
15.19 Nigeria agrees with Cameroon (RC paragraph 10.14) that the diffe
rences between the Parties have
a practical dimension.
15.20 However, Cameroon confuses two separate matters, and in so doing d
istorts Nigeria's position. In
its Counter-Memorial Nigeria in certain places made the point that a State does not incur in
ternational
responsibility merely by adhering to a legal argument which differs from
that of the other State
19
concerned. Cameroon accepts that proposition ("One can admit that the fact that a
State defends a
20
specific legal argument does not engage its responsibility ...").
15.21 But Cameroon introduces a quite separate issue when it adds "provi
ded that, by peaceful means, it
21
attempts to convince the other Party of the validity of its argument". Whether a State resorts to force in
pursuit of its arguments may or may not be lawful, depending on the circ
umstances, but it is an entirely
distinct matter from the initial proposition that a State does not act u
nlawfully merely because it
advances legal arguments opposed to those of the other party. The possib
le unlawfulness of the means
used in support of a State's legal argument does not make the advancing
of that legal argument itself
unlawful.
15.22 In the same paragraph of its Reply Cameroon asserts that "Nigeria has shown no desire to discuss
with Cameroon certain difficulties regarding the common boundary which h
ave arisen in practice". 22
This is not true.
15.23 Several of the incidents raised by Cameroon, and discussed below i
n the Appendix to Chapter 16,
involved even on Cameroon's own account of the matter discussions betwee
n Nigerian and Cameroonian
authorities. In addition, for example, in General Gowon's letter of 23 A
ugust 1974 to President Ahidjo
(Annex NR 12), he recalled "that the important question of demarcating
the borders between our two
countries was discussed at length during our meeting in Garoua", and he
referred to "the joint
commission of experts established to delineate the international boundar
y between our two countries".
On 20 July 1981 President Shagari, in a letter to President Ahidjo, prop
osed the establishment of an
Arbitration Panel to "look into our different positions concerning the b
oundaries" (see the Appendix to
Chapter 16, paragraph 38). Cameroon did not see fit to respond to that
proposal.
15.24 Nigeria has thus clearly been ready to enter into discussion over
these boundary matters:
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Cameroon has not cited any examples of such discussions having been requ
ested by Cameroon and
rejected by Nigeria. Nigeria would also note that it is rather Cameroon
has been reluctant to discuss such
matters with Nigeria: Nigeria cannot recall any occasion in, say, the la
st decade in which Cameroon has
requested such discussions with Nigeria.
15.25 Moreover, Nigeria would observe that whatever may have been the po
sition as regards
Government-to-Government discussions, for the most part differences aris
ing out of boundary
transgressions have been dealt with at a local level. It would not be ov
erstating the matter to say that the
story of the land boundary between Lake Chad and Bakassi is the story of
three-quarters of a century of
local 'management' of differences in such a way as to reflect local trib
al affinities and social and
agricultural realities on the ground, and without the involvement of cen
tral State authority. At the local
level there have been frequent - and often successful - meetings to reso
lve local problems. In its Counter-
Memorial, and in this Rejoinder, Nigeria has given examples of such local resolution of local
23
differences.
15.26 Cameroon seeks, further, to imply that in addition to being unwill
ing to discuss boundary
problems, Nigeria has instead "acted unilaterally, and in many areas, wi
th the most extreme intensity,
that is to say by military force".4 The implication is that this applies to the land boundary as a whole:
this is simply untrue.
15.27 Cameroon then goes on to mention the fact that "armed combats have
taken place in the Bakassi
Peninsula". That is true. But it is not true for Cameroon to go on say t
hat "Nigeria ... attacked the limited
25
Cameroonian forces which were stationed there". As Nigeria has several times stated, it was
Cameroon which attacked Nigerian settlements in Bakassi. Those settlemen
ts, and the Nigerian forces
which defended them, were already there in lawful exercise of Nigeria's
sovereignty over the Bakassi
Peninsula. Moreover, the peaceful civil administration of border areas,
in situations where sovereignty is
or may be unclear or disputed, is not as such a basis for international
responsibility.
15.28 Finally on this point, Nigeria would observe that at the end of RC
paragraph 10.14, Cameroon
suggests that Nigeria is claiming that the dispute is not very real, and
that this is "to challenge the ruling,
which is totally devoid of ambiguity, made by the Court in its Judgment
of 11th June 1998 on the
26
Preliminary Objections" (with a footnote reference to paragraph 87 of that Judgment). Nigeria
must
state (a) that it has never claimed that the dispute is not real, and
(b) that the paragraph of the Judgment
27
relied upon by Cameroon has no relevance to the present matter.
F. The prohibition on the use of force
15.29 Cameroon asserts that Nigeria has violated the prohibition of reco
urse to force, embodied in
28
Article 2(4) of the UN Charter and also rooted in customary internatio
nal law. Leaving all other
allegations for later consideration, Cameroon then singles out what Came
roon describes as Nigeria's
military operations against the Bakassi Peninsula as the paradigm case o
f military action on a scale
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which fulfils all the conditions necessary to qualify it as aggression.
15.30 Cameroon's presentation of its case asserts or implies that in the
Lake Chad and Bakassi areas the
situation was one in which Cameroon was in complete and peaceful occupat
ion of those areas until
Nigerian military action seized them from Cameroon. But as Nigeria has s
hown, 29 in both areas there
has been a long-standing Nigerian presence and authority in exercise of
Nigerian sovereignty. The
situation is essentially one of an original Nigerian peaceful possession
of the area, which was later
disturbed by Cameroon. It is Cameroon which, in order to extend its terr
itory, has encroached upon
Nigerian territory and taken military action against Nigeria and the loc
al Nigerian inhabitants, seeking to
impose upon Nigeria Cameroon's view as to the course of the boundary bet
ween the two States.
15.31 In this context it is worth recalling that, while both sides suffe
red military casualties in the
skirmishing on the Bakassi Peninsula, the civilian casualties suffered -
e.g. in the attack on the market
place at West Atabong in February 1996 - seem to have been exclusively N
igerian. Acts of aggression
were aimed at the population of another State, yet in this case it was N
igerian forces which were
defending a Nigerian population from harassment and attack. Examples of
some of these incidents are
set out in NC-M Chapter 25 and the Appendix to Chapter 18 below.
15.32 Cameroon's singling out of what it describes as Nigeria's military
operations is, once again, not
accompanied by a date for the military action being referred to, althoug
h from the cross-reference to MC
paragraphs 6.162-6.163 it may be inferred that the incident in question
is that which is said to have taken
place on 3, 4 and 5 January 1994. To characterise this incident as amoun
ting to "agression" by Nigeria is
incorrect. Nigeria's comments on this alleged incident were given in NC-
M paragraphs 24.82-24.85. As
noted below (Appendix to Chapter 16, paragraph 89) Cameroon has offere
d no response to Nigeria's
comments.
15.33 Cameroon subsequently notes that the prohibition of recourse to fo
rce applies above all in relation
30
to territorial disputes. But again Cameroon treats the Nigeria-Cameroon boundary (including by
implication the boundary in the Lake Chad and Bakassi areas) as an "est
ablished boundary" 31which has
to be respected. However, as Nigeria has frequently explained, the bound
aries in those two areas in
particular are not "established", at least not in the locations asserted
by Cameroon.
15.34 Nigeria has not resorted to force to settle territorial disputes.
In all the instances cited by
Cameroon in which Nigerian forces are presented as having acted in order
to change the territorial status
quo (as distinct from instances where what is alleged to have been involve
d is more in the nature of an
ephemeral frontier trespass) the facts, as Nigeria has shown in its Counter-Memorial and as it will show
further in this Rejoinder, are that Nigerian military action was in all
cases taken in response to prior
incursions by Cameroon. Nigeria was in all those instances defending its
existing territorial positions
32
and was acting to maintain a status quo which was being undermined by Cameroonian harassment.
15.35 One of the earlier incidents raised by Cameroon vividly illustrate
s the typically true situation. This
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involved the incident on 16 May 1981. Despite being used by Cameroon as
a basis for alleging Nigeria's
international responsibility,33 it transpires that it was settled on the basis that Cameroon offered a full
apology, and Cameroon paid Nigeria compensation for the incident, for which Cameroon accepted
responsibility. The matter is more fully examined in paragraphs 16.35-16
.46 below and in paragraphs 29-
45 of the Appendix to Chapter 16, where it is demonstrated beyond any sh
adow of doubt that Cameroon
acknowledged its responsibility for this serious incident, of which it w
as the initiator in pursuit of its
aggressive interests in the Bakassi area.
G. Violation of Cameroon's territorial integrity
15.36 Cameroon asserts that the infringements of Cameroon's rights can b
e analysed as being violations
of its territorial sovereignty.4Nigeria, it is said, is obliged to respect the boundary as it existed wh
en the
two countries obtained their independence, and is, additionally, require
d to abstain from any act of
intervention, military or otherwise, involving infringing the territoria
l sovereignty of Cameroon.
15.37 Both aspects of this assertion are wrong, in so far as they apply
to the territorial situation between
Nigeria and Cameroon.
(1) First, the attainment of independence does not cure an earlier bou
ndary of its legal imperfections.
The 'respect' due in principle to a pre-Independence boundary can only r
eflect whatever legal status it
had at the time of Independence, and its imperfections at that time cont
inue thereafter. The principle of
uti possidetis juris does not make legally perfect and binding a boundary which did not have
those
qualities previously (see generally below, paragraph 15.47).
(2) Second, any obligation to respect Cameroon's territorial sovereign
ty begs the question whether any
particular location is within Cameroon's territory. Both in the Bakassi
and Lake Chad areas, and along
the land boundary between them, Nigeria denies that it has taken action
within Cameroonian territory:
the territory where actions complained of by Cameroon have occurred are
all in Nigerian territory. It is
thus Cameroon, not Nigeria, which has violated the other's territorial s
overeignty, at least where its
conduct has involved a direct military challenge to the peaceful exercis
e of civilian authority by Nigeria.
H. Clarity of the boundary delimitation
15.38 Cameroon makes a strong point of asserting that the boundary delim
itation is perfectly clear, it
being noted that Cameroon is here apparently speaking only of the Bakass
i Peninsula and the region of
Darak. 35 Cameroon makes this point in order to refute an alleged Nigerian "argum
ent that, even if the
areas disputed between the two States [i.e. in context, the Bakassi and
Darak areas] belong to Cameroon,
36
Nigeria has not committed any illegal act, given the lack of clarity con
cerning the boundary".
15.39 First, Nigeria must observe that the argument attributed to Nigeria is not an
argument which
Nigeria has in fact advanced: Cameroon does not give any reference for t
his supposed Nigerian
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argument. Cameroon has simply stated, in greatly exaggerated terms, its
own version of what it pretends
is a Nigerian argument, in order to try to undermine it.
15.40 Nigeria did refer, in a short passage in its Counter-Memorial (just two sentences, taking seven
lines), to "Topographical difficulties"37 : that passage did not refer solely to Bakassi or Darak, but rather,
without excluding them, referred "especially [to incidents] said to have
occurred along the land
boundary between 38 Lake Chad and Bakassi". In order to show the misleading nature of Camer
oon's
argument, Nigeria must repeat what it said in its Counter-Memorial. The principal thrust of the passage
was:
"It is highly relevant to many of the alleged "incidents" ..... that in
many areas the land
boundary is undemarcated on the ground, is not even precisely delimited
in the relevant
instruments, and runs through difficult terrain. .....[S]uch uncertainti
es have a part to play
in understanding the realities of some of the so-called boundary inciden
ts."
Nigeria stands by that statement: in relation "especially" to the 1,800
kilometres 39 land boundary, the
facts mentioned are "highly relevant", and the uncertainties referred to do "have a part to play" in
understanding the realities of the situation.
15.41 The Court has acknowledged the correctness of Nigeria's propositio
n that the boundary is in
significant measure lacking in clarity. Referring to certain of the inci
dents referred to by Cameroon, the
Court said in its Judgment of 11 June 1998 that they
"took place in areas which are difficult to reach and where the boundary
demarcation may
have been absent or imprecise". 40
15.42 Moreover, Cameroon, referring to that same passage, has stated tha
t it "is not contesting" the
point.41 Cameroon goes on to acknowledge: "that, in some border sectors, the dem
arcation is unclear
and has led to misunderstandings or uncertainties in the absence of a pr
ecise line marked on the
terrain."42
15.43 Cameroon, however, seeks to minimise the impact of this admission
by referring only to "some
43
border areas", and by going on to say that "these sectors are rare because the land bou
ndary between
Cameroon and Nigeria is not only completely delimited, but is also, prob
ably, one of the most
44
extensively demarcated in Africa". This statement is surprising and misleading - and wrong.
(1) While the land boundary between Lake Chad and Bakassi is in princi
ple completely
delimited, that delimitation is in a number of places defective, as Nige
ria has
demonstrated in considerable detail in its Counter-Memorial 45 and in Chapter 7 of this
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Rejoinder. The IGN 1:50,000 maps of Cameroon produced in the period 1965-1969
contain many boundaries delineated by broken lines or crosses, showing d
oubt as to the
46
delimitation (and even if, as Cameroon asserts, IGN maps are not directly Cameroon
maps, the Cameroon Government is not dissociated from their production:
they are, in the
absence of any other official indication of Cameroon's views, the best a
vailable evidence
47
of Cameroon's official position as to the course of the boundary on the
ground). The
uncertainty as to the delimitation in this region was noted by Professor
Brownlie, in
observing that "There is no doubt that the process of demarcation in [mo
st of the land
48
boundary] will involve clarification of the delimitation in various plac
es". It is precisely
because there are defects in the delimitation of the boundary that there
is uncertainty as to
where the boundary runs, and this uncertainty has to be borne in mind in
understanding
the realities of the situation on the ground.
(2) Those uncertainties would matter less if the boundary had indeed b
een extensively
demarcated, as Cameroon states. The fact, however, is that while some pa
rts of the current
boundary between Nigeria and Cameroon have been demarcated, those parts
involve
principally the sector from Boundary Pillar 64 to the Boundary Pillar on
the River
Akpakorum. By far the greater part of the land boundary - some 75% - has
never been
demarcated. Moreover, only 4 of the 82 incidents alleged by Cameroon rel
ated to the
relatively small sector of the boundary which has been demarcated. All t
he rest concerned
undemarcated sectors, in which the uncertainties referred to by Nigeria
played their full
part.
(3) In acknowledging that "in some border areas, the demarcation is un
clear and has led to
misunderstandings or uncertainties in the absence of a precise line mark
ed on the
terrain",49 Cameroon is confusing demarcation and delimitation - a conclusion borne
out
by Cameroon's immediately following statement that these sectors are rar
e because the
boundary has been "extensively demarcated" 50 (as to the incorrectness of this proposition,
see sub-paragraph (2) above).
15.44 Nigeria's circumspect remarks are far removed from the argument at
tributed to Nigeria by
Cameroon and which Cameroon has invented. Cameroon does not - indeed, ca
nnot - challenge the facts
noted by Nigeria, namely that in many areas the boundary is undemarcated
and is not even precisely
delimited in the relevant instruments, and that the boundary runs throug
h difficult terrain.
15.45 The second point to be made in response to Cameroon's assertion that the boundary
delimitation is
perfectly clear, is that it is wholly without substance. Cameroon says o
f its version of Nigeria's alleged
argument that "This alleged lack of clarity is pure invention. There can
be no serious doubt that the two
areas laid claim to by Nigeria belong to Cameroon." 51 This calls for a number of comments.
(1) Nigeria has not said that there was a lack of clarity in relation
to the boundary in the
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Bakassi and Darak areas (the 'deux zones' referred to by Cameroon). In
deed, Nigeria's
position with respect to Bakassi is not that the boundary lacks clarity
but rather the very
opposite: the boundary is clear, and follows the course set out at NC-M, Chapter 11. This,
naturally, is a different course from that proposed by Cameroon, but tha
t simply reflects
the existence of a dispute about sovereignty over the Bakassi Peninsula,
not a Nigerian
assertion that the boundary is unclear. Nigeria's position with respect
to the boundary in
the Darak area is set out above, in Chapters 4 and 5.
(2) Cameroon advances arguments based on the underlying proposition th
at its position as
regards Bakassi and Darak is correct. But that is the very issue before
the Court. To
Cameroon's bold assertion that "There can be no serious doubt that the t
wo areas laid
claim to by Nigeria belong to Cameroon" Nigeria can only answer that "Th
ere can be no
serious doubt that those two areas belong to Nigeria". Cameroon's assert
ion of its case as
if it were a settled fact does not make it a fact: it remains merely the
conclusion which
Cameroon draws from its own arguments. Cameroon no doubt believes its ar
guments to
be sound and Nigeria's to be wrong; Nigeria similarly believes that its arguments are
sound and that it is Cameroon's which are wrong.
(3) It is absurd for Cameroon to pretend that Nigeria, in order to pro
ve the existence of
'doubts and defects' which characterise the existing boundary, has had t
o go back as far as
the ninth century. This is yet another complete distortion by Cameroon o
f Nigeria's
position. Cameroon is understandably aggrieved that Nigeria has drawn th
e attention of
the Court to the historical background to the matters now in dispute bet
ween the parties:
Cameroon itself omitted to do so, no doubt because those historical circ
umstances served
to demonstrate the weakness of Cameroon's case. But for Cameroon to seiz
e on the
earliest date mentioned by Nigeria in a general, and brief, resumé of
the historical
background, and then to present that date as the foundation for certain
very specific, and
relatively modern, 'doubts and defects' to which Nigeria has drawn atten
tion is fanciful.
52
As Nigeria made very clear in its Counter-Memorial, and further explains in this
53
Rejoinder, the doubts and defects to which Nigeria has drawn attention derive from
events within the last 90-odd years: it is the Anglo-German Treaty of Ma
rch 1913 which
is in part ineffective, and it is the terms of the Thomson-Marchand Decl
aration of 1929-
1931 and of the Nigeria (Protectorate and Cameroons) Order in Council
1946 which are in
certain respects defective as a delimitation of parts of the boundary.
I. Uti possidetis juris
15.46 Cameroon moreover invokes in this context the application of the p
rinciple of uti possidetis juris.
This merits fuller, and separate, consideration.
15.47 Nigeria has elsewhere considered and rejected Cameroon's argument
that the uti possidetis
principle in some way prevents the boundary as at Independence from bein
g modified as a consequence
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of the subsequent conduct of the parties. 54 In addition to the points made there, Nigeria makes the
following further points as to the limited application of the uti possidetis principle in respect of
boundaries which are in some way unclear or defective.
(1) Cameroon's invocation of the principle of uti possidetis juris as the clear foundation of
55 56
Cameroon's rights regarding the clearly defined line of the boundary is misplaced.
Nigeria agrees with Cameroon that the principle applies in Africa. But t
hat principle is not
an automatic and absolute rule. In particular it does not convert into a
legally binding
boundary line a boundary which was previously open to question: uti possidetis juris is
not a remedy which cures legal defects in previous boundaries.
(2) Moreover, in its primary sense the principle is not just that of uti possidetis but
includes the additional word "juris". The reference is thus not just to the limits in fact of
the previous territorial sovereign's authority, but to the lawful limits of that authority. The
principle, in its pure form, calls for an enquiry into, and eventual pro
of of, the facts as to
the lawful territorial limits of the previous sovereign's authority; the
re is nothing
inconsistent with the principle in engaging in such a factual enquiry an
d requiring such
proof. This has been done in several arbitrations. If in some particular
case the limits of
the previous territorial sovereign's authority were laid down by a treat
y, then those limits
are duly established and proved by the treaty. But just as the essential
facts are a matter
for enquiry and proof in the light of the particular circumstances, so t
oo is the meaning,
application, validity and effectiveness of any treaty that may be relied
on.
(3) Nigeria accepts that, as the Court said in the Frontier Dispute Case (Burkina Faso/
57 58
Mali) (in a passage quoted by Cameroon ), the obvious purpose of the principle
"is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of front
iers
following the withdrawal of the administering power".
This is indeed a valuable function served by the principle. But the prin
ciple is not an
absolute rule demanding the observance of every pre-existing boundary, h
owever
erroneous or defective; its general purpose does not require that there
be any such absolute
rule. By virtue of the principle there may well be a legal presumption t
hat previous
boundaries continue after Independence. But it is a presumption which in
evitably begs the
question, "what were the boundaries immediately prior to Independence?".
This can only
be answered by an enquiry into the facts of the particular case and, if
reliance is placed on
one or more treaties, an enquiry into the meaning, application, validity
and effectiveness
of those treaties.
(4) Moreover, in the immediate context Cameroon's claim relates to the
alleged non-
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observance by Nigeria of the principle uti possidetis juris, and not with the quite separate
matter of the use of force or other "fratricidal struggle": the Court's
dictum quoted by
Cameroon is thus irrelevant to the matter immediately in issue.
(5) In so far as the principle uti possidetis juris calls for an enquiry into the territorial
extent of the previous sovereign's authority, Nigeria has shown that, in
the two areas
referred to by Cameroon, it is far from clearly established that the ter
ritorial limits of
Cameroon's authority extended as far as the line now asserted by Cameroo
n as the
boundary. 59
(6) In so far as that principle calls for an enquiry into the meaning,
application, validity
and effectiveness of the treaties on which Cameroon relies, Nigeria reje
cts Cameroon's
assertion that "the line of the boundary ... in its entirety is clearly
defined by treaties as
60
well as other international acts, the validity of which is indisputable"
. First, as Nigeria
has been at pains to point out, 61 the line of the boundary is not in its entirety 'clearly
defined' by the relevant treaties, there being several stretches of the
boundary where the
delimitation in the relevant instruments is defective. Second, Cameroon'
s assertion that the
validity of the treaties and other international acts "is indisputable"
is, again, to elevate a
Cameroonian argument to the level of accepted fact. As Nigeria has demonstrated, while
Nigeria does not challenge the validity of the relevant treaties and oth
er instruments in
their entirety, it does partially dispute their effectiveness as well as
Cameroon's
interpretation of their meaning and application. For Cameroon to say tha
t its own view of
these matters is "n'est pas contestable" is self-serving and wishful thi
nking.
(7) Nigeria's attitude to the principle uti possidetis juris is not, contrary to what Cameroon
62
alleges, an attempt at "the denial of the applicability of the principle of uti possidetis".
Cameroon exaggerates. Nigeria does not deny the applicability of the pri
nciple across the
board, as Cameroon implies. Nigeria acknowledges the value of the princi
ple for its
boundary with Cameroon. Thus Nigeria accepts that the land boundary betw
een Lake
Chad and Bakassi is substantially determined by the delimitation recorde
d in the various
instruments which both Parties agree are relevant; Nigeria accepts the v
alidity of those
instruments, 63 but at the same time Nigeria submits that in some areas the delimitatio
n in
those instruments is defective and therefore cannot be accepted by Niger
ia without
clarification or interpretation of the relevant parts of those instrumen
ts by the Court.
Similarly, with regard to Bakassi, Nigeria accepts the relevant instrume
nt except in so far
as it unlawfully purported to cede Bakassi to Cameroon. The principle uti possidetis juris
does not make a treaty clear when it is defective or ambiguous; such leg
al considerations
are an inherent part of the principle. Nigeria's conduct since Independe
nce, and in its
conduct of this present case, is thus far from constituting a denial of
the principle, but is in
substantial accord with the principle.
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(8) Similarly, Nigeria is not attempting "to neutralise the applicatio
n of the principle of uti
possidetis."64 For the reasons already given, Nigeria is seeking rather to apply the
65
principle in its proper perspective, which means that a pre-Independence boundary can
only continue after Independence subject to such doubts and defects as a
ttached to it at the
time of Independence. The successor State cannot inherit a better title
to its frontier lands
than its predecessor State had: the principle uti possidetis juris does not perfect an
imperfect boundary. Nigeria's position is thus fully in accordance with
the principle, not a
denial or neutralisation of it.
(9) Nigeria's position is also fully consistent with the rules on Stat
e succession in relation
to boundary treaties. Where a boundary is regulated by a treaty, the mat
ter falls to be
considered primarily in the light of the rules of international law rela
ting to succession of
States in relation to treaties. Those rules reflect the principle uti possidetis juris. Article 11
of the Vienna Convention on Succession of States in Respect of Treaties
1978 provides
that
"A succession of States does not as such affect:
(a) a boundary established by a treaty; ..."
Article 14 of the Convention goes on to provide:
"Nothing in the present Convention shall be considered as prejudging in
any
respect any question relating to the validity of a treaty".
In its Commentary on the first of these provisions the Commission noted
that in a number
of modern instances a successor State has become involved in a boundary
dispute, but
added that
"these appear mostly to be instances where either the boundary treaty in
question left the course of the boundary in doubt or its validity was
challenged on one ground or another; and in those instances the successi
on
of States merely provided the opportunity for reopening or raising groun
ds
for revising the boundary which are independent of the law of
succession" (paragraph 16) of Commentary to draft Articles 11 and 12)
.
The Commission went on to conclude that the draft Articles should contai
n a provision
that boundary settlements are not affected by "a succession of States as
such". The
Commission explained:
"Such a provision would relate exclusively to the effect of the successi
on of
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States on the boundary settlement. It would leave untouched any other
ground of claiming the revision or setting aside of the boundary settlem
ent,
whether self-determination or the invalidity or termination of the treat
y.
Equally, of course, it would leave untouched any legal ground of defence
to
such a claim that might exist. In short, the mere occurrence of a succes
sion
of States would neither consecrate the existing boundary if it was open
to
challenge nor deprive it of its character as legally established boundar
y, if
such it was at the date of the succession of States." (paragraph 17 of
the
Commentary to draft Articles 11 and 12: emphasis added)
After further consideration the Commission repeated its earlier conclusi
on:
"Most members ... were also of the opinion that the articles, as drafted
, were
limited to the question of the effects of a succession of States as such
on the
boundary, ... and did not affect, in any way, the validity of the treaty itself,
or indeed any other grounds that there might be for contesting the
boundary..." (paragraph (44) of the Commentary to draft Articles 11 and 12:
emphasis added)
To make the position clear the Commission added a new draft Article, in
terms which
were subsequently to become those of Article 14 of the Vienna Convention
.
(10) In so far as Cameroon relies on the resolution adopted at Cairo i
n 1964 by the
Conference of OAU Heads of State and Government to the effect that "all
Member States
pledge themselves to respect the borders existing on their achievement o
f national
independence", Nigeria recalls that the International Law Commission com
mented on this
resolution that it
"does not, of course, mean that boundary disputes have not arisen or may
not arise between African States. But the legal grounds invoked must be
other than the mere effect of the occurrence of a succession of States o
n a
boundary." 66
Thus the Commission accepted, consistently with what it said elsewhere, 67 that under the OAU
Resolution boundaries may be questioned on grounds other than the mere f
act of succession.
J. Additional grounds of complaint against Nigeria
15.48 In its Memorial Cameroon raised several major allegations against Nigeria, of alleged b
reaches by
Nigeria of certain major principles of international law. These were sum
marised by Nigeria, at NC-M
paragraph 24.32, as being that Nigeria -
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- resorted to force against Cameroon, contrary to the prohibition agains
t the use of force
accepted as part of international law;
- infringed Cameroon's territorial sovereignty (including its territori
al sea);
- intervened in Cameroon's affairs, contrary to the principle of non-int
ervention;
- militarily occupied Cameroonian territory; and
- failed to respect Cameroon's sovereignty.
15.49 Cameroon purports to see some paradox in the fact that Nigeria sho
uld have so summarised
Cameroon's case, 68 and seems to attach importance to the fact that this summary was in Nig
eria's own
words. 69 Cameroon also observes that this summary occurred "in a passage which i
s unfortunately
70
isolated within [Nigeria's] Counter Memorial." These remarks by Cameroon are inexplicable.
Cameroon implicitly accepts that Nigeria has correctly summarised Camero
on's position. There is no
paradox in that. Nor can Nigeria summarise Cameroon's position otherwise
than in its own words. Nor,
more significantly, is it correct that the passage is isolated: it is si
mply the briefly stated starting point
for the main body of Nigeria's argument in this part of the case, to the
effect that Cameroon's allegations
are unsound in fact and in law.
15.50 Apart, however, from those somewhat misconceived comments on Niger
ia's summary of
Cameroon's argument, Cameroon now adds two further grounds of complaint
against Nigeria. In RC
paragraph 11.15 Cameroon adds the complaints that
"Nigeria has also violated the fundamental principle by virtue of which
'States settle their
international disputes by peaceful means, so that international peace an
d security as well
as justice are not endangered,' "
and
"Nigeria has taken no account of the measures indicated by the Court in
its Order of 15
March 1996" 71
Nigeria will respond to these additional complaints in the immediately f
ollowing paragraphs.
K. The duty to settle disputes by peaceful means
15.51 Cameroon merely asserts, without any attempt to substantiate its a
ssertion, that Nigeria is in
breach of its duty to settle its international disputes by peaceful mean
s. Nigeria accepts that such a duty
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exists, but totally rejects any suggestion that it has acted in breach o
f it.
15.52 As Nigeria has shown in its Counter-Memorial and in this present Rejoinder, the status quo in the
Bakassi and Lake Chad areas, and along the land boundary between them, w
as one of long-standing
Nigerian administration and sovereignty, which Cameroon has sought to un
dermine. Rather than Nigeria
having failed to settle its disputes by peaceful means, it is Cameroon's
expansionist aims which have de-
stabilised a previously stable region and have led to the existence of a
dispute which is of Cameroon's
making and which Cameroon maintained by its military and paramilitary ac
tions. Nigeria recalls that the
duty upon States to settle their disputes peacefully has as one of its p
urposes that justice be not
endangered.
L. Fulfilment of the Court's Order indicating Provisional Measures
72
15.53 Cameroon similarly asserts that Nigeria has taken no account of the measures indicated by the
Court in its Order of 15 March 1996. Nigeria rejects as unfounded Camero
on's allegation that Nigeria is
73
in breach of the Court's Order. As regards those allegations made in thi
s context in Cameroon's Reply,
Nigeria has responded in paragraphs 170-181 of the Appendix to Chapter 1
6 below, showing
Cameroon's allegations to be without foundation. Subsequently to the sub
mission of its Reply,
74
Cameroon, by a letter of 28 September 2000, drew the Court's attention to additional complaints as to
Nigeria's alleged non-observance of the Court's Order. Nigeria has shown
, in its letter to the Court of 25
75
October 2000, that Cameroon's allegations are baseless.
M. Justifications: honest belief, reasonable mistake, and self-defence
15.54 As Nigeria has noted above (paragraph 15.7), one of the conditio
ns to be satisfied before a State
incurs international responsibility for its conduct is that the conduct
complained of must not fall within
certain accepted justifications. In that context Nigeria invoked honest
belief, reasonable mistake and self-
defence as justifications for a number of the incidents relied on by Cam
eroon.
15.55 For its part Cameroon now asserts that 'honest belief' and 'reason
able mistake' are not good
defences; 76 Cameroon also asserts that self-defence is not applicable. 77 Nigeria rejects these
Cameroonian assertions.
15.56 As regards honest belief and reasonable mistake, Nigeria believes that it is correct to distinguish
between, on the one hand, the continued presence of a State's officials
in territory with the honest belief
that that territory belongs to their State and, on the other hand, the f
orceful incursion of a State's officials
into territory which is occupied by another State even if they believe i
t to belong properly to their own
State. It is the former situation which obtains in the present circumsta
nces. Nigeria submits that in such a
situation the continued presence of a State's officials and other manife
stations of sovereign authority in
the territory do not give rise to international responsibility if, in th
e event, title to territory is held later on
by a competent court to vest in another State.
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15.57 Cameroon's arguments to the contrary are in effect predicated on t
wo assumptions: first, that there
78
is a known exhaustive list of circumstances precluding illegality, and second, that the existing
territorial dispositions as between Nigeria and Cameroon are clearly est
ablished. 79 However, neither is
correct.
(1) There is no warrant for the assertion that the circumstances precl
uding liability are
already exhaustively listed. Certain such circumstances are indeed well-
known, but the list
of categories can by no means be regarded as closed. The work of the Int
ernational Law
Commission on State Responsibility is not yet concluded, and even when c
oncluded the
degree of its acceptance in State practice is still problematical. It is
indeed noteworthy that
general State practice hitherto is not to link disputes as to territorial title with claims of
international responsibility on the part of whichever State loses its cl
aim to sovereignty
over the disputed parcel of land. This very strongly suggests an accepta
nce by States that
the considerations of good faith which underlie arguments as to honest b
elief and
reasonable mistake must be given due weight. It is to be noted that in t
he case concerning
80
the Temple of Preah Vihear the Parties did not seek, and the Court did not adjudge, any
finding of international responsibility as against the other party shoul
d it be held not to
have sovereignty over the area in dispute: the Parties, and the Court, l
imited themselves to
certain specific matters such as the return of property and the withdraw
al of official
personnel. 81
(2) It is apparent from the whole context of the present case that the
re is room for
argument about each State's territorial limits. It is precisely in such
situations of disputed
territorial title that considerations of honest belief and reasonable mi
stake are relevant.
(3) Moreover the International Law Commission in Chapter V of Part 1 o
f the Draft
Articles on State Responsibility is not seeking to specify exhaustively
the circumstances
precluding wrongfulness in relation to every case that may occur. It is
concerned only to
formulate the circumstances applicable in principle to all or most inter
national obligations.
This is without prejudice to the possibility that in relation to particu
lar obligations or
particular primary rules, there may be circumstances which excuse non-pe
rformance.
Many examples could be cited of such specific defences or excuses, and t
he Commission
has given no indication of any intention to over-ride them, rather the c
ontrary, as its
provisions on lex specialis (now Article 56) clearly implies. In relation to boundary
incidents or disputes, the rules of State responsibility do not exist me
rely to amplify one
State's assertions (whether or not well-founded) as to the correct leg
al position so far as
territorial sovereignty is concerned; they have a distinct purpose, whic
h is to ensure the
peaceful settlement of disputes including territorial disputes. Thus whe
re a State is
peacefully in occupation of territory under a claim of title (whether o
r not that claim is
ultimately upheld), it is entitled to defend the civilians under its au
thority and the territory
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concerned against attack. Its doing so by the use of proportionate force
does not give rise
to State responsibility. In any event it is a complete distortion of the
work of the
International Law Commission in the field of State responsibility, and o
f the intent of the
Draft articles, for Cameroon to imply that the Commission has sought to
exclude any such
specific argument by way of defence (see further J. Crawford, Second Re
port on State
Responsibility, A/CN.4/498/Add.2 (1999), paragraph 304 and references)
.
15.58 Cameroon questions the possibility of Nigeria being able to hold a
ny honest belief in this matter,
or making any reasonable mistake as to the situation. Cameroon's argumen
ts in this sense are unfounded
(as well as being related solely to Bakassi and thus ignoring the Lake
Chad area and the land boundary
between Bakassi and Lake Chad).
(1) Thus Cameroon asserts that the Anglo-German Treaty of March 1913 p
ut Bakassi on
the German side of the boundary: but it only did so if that treaty was wholly effective, and
82
Nigeria has shown that that was not the case.
(2) Cameroon goes on to ask whether "Nigeria has never heard of the le
gal presumption of
the validity of treaties": but Cameroon might equally be asked whether it is not aware that
a presumption is no more than that, and that if one party considers that it holds soli
d proof
to the contrary, the presumption no longer stands.
(3) Cameroon asks also how, given that presumption, there can be an ho
nest belief in the
partial invalidity of the 1913 treaty: the reason is clear - the presumption cannot transform
a defective treaty into a fully effective one, and it is in fact rendere
d inapplicable by the
clear evidence and argument as to Great Britain's lack of competence to
dispose of the
Bakassi Peninsula to Germany.
(4) Cameroon asserts that Nigeria is acting inconsistently with the vi
ews on Bakassi
expressed by its Attorney-General in 1972: but the Attorney-General, however eminent,
was but one officer of State (and it is well-known that differences of
opinion exist within
governments and among lawyers within governments), and what counts in t
he final
analysis is the authoritative opinion that is attributed to the Governme
nt.
(5) Cameroon finally asserts that Nigeria's current position on Bakass
i contradicts the
recognition by Nigerian officials of Cameroon's title to Bakassi: but Cameroon seems
unaware of the continuous manifestations of Nigerian State authority ove
r the disputed
areas since Independence in 1960, as demonstrated above in Chapters 3 an
d 5.
15.59 As regards self-defence, Cameroon rejects Nigeria's reliance on self-defence. Cameroon bases th
is
rejection on the assertion that, by virtue of the principle of uti possidetis, the relevant international
instruments determine the territorial position as between Nigeria and Ca
meroon, with the result that the
territory in question is Cameroonian and Nigeria cannot, on Cameroonian
territory, enjoy a right of self-
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defence.
83
15.60 However, as shown elsewhere, Cameroon's reliance on the principle uti possidetis juris for this
purpose is misplaced. The relevant international instruments are in some
crucial respects unclear or
ineffective, and accordingly the assertion that Nigeria was asserting a
right of self-defence "in
Cameroonian territory" is question-begging. As Nigeria has shown, Camero
on has sought by military
and paramilitary actions to upset the status quo in Nigerian territory, and Nigeria has acted entirely
within its rights in accordance with international law in responding by
way of self-defence to those
Cameroonian actions.
N. Non-intervention
15.61 In a number of instances Cameroon alleges that Nigerian activities
constitute a breach of the duty
of non-intervention. Thus where Nigerian customs officials or police are
said by Cameroon to have
acted in locations over which Cameroon claims to have sovereignty, Camer
oon categorises Nigeria's
actions as involving intervention in Cameroon's affairs. The alleged inc
idents considered in paragraphs
46 et seq. and 51 et seq. of the Appendix to Chapter 16 below are but two examples of this practi
ce.
15.62 Nigeria denies that the alleged activities constitute intervention
in breach of the obligation not to
intervene in the affairs of another State.
15.63 First, in so far as the activities in question might have occurred
in Bakassi or in Bakassi waters,
they took place in Nigerian, not Cameroon, territory and therefore no qu
estion of intervening in
Cameroon's affairs arises.
15.64 Second, even if the alleged activities took place in Cameroon terr
itory (which is denied), they did
not constitute intervention in the sense in which that term is used in t
he context of the obligation of non-
intervention. Properly understood, that term involves "forcible or dicta
torial interference by a state in the
84
affairs of another state, calculated to impose certain conduct or conseq
uences on that other state". It is,
essentially, a prohibition of action directed against the personality an
d political independence of the
victim state, and does not embrace every isolated violation of the State
's territory. This is reflected in the
Declaration on the Inadmissibility of Intervention in the Domestic Affai
rs of States and the Protection of
their Independence and Sovereignty 1965 (General Assembly Resolution 21
31 (XX)), which (operative
paragraph 1: emphasis added) condemns
"armed intervention and all other forms of interference or attempted thr
eats against the
personality of the State or against its political, economic and cultural elements".
That quoted language was repeated in paragraph 1 of the statement of the
'non-intervention' principle in
the Declaration on Principles of International Law concerning Friendly R
elations and Co-operation
among States 1970 (General Assembly Resolution 2625 (XXV)).
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15.65 Moreover, the assertion of Nigerian responsibility on grounds of i
ntervention adds nothing to, and
is subsumed within, the underlying Cameroonian claim to sovereignty over
the disputed areas. If, as
Nigeria contends, Cameroon's claim is unsuccessful in these proceedings,
Cameroon's claims for
wrongful intervention necessarily fall away. But even if, contrary to th
e submissions of Nigeria, title to
those areas is held to vest in Cameroon, it does not follow that the sep
arate head of claim on grounds of
85
wrongful intervention must necessarily succeed. As Nigeria has shown, considerations of honest belief
and reasonable mistake would then serve to preclude international respon
sibility for the Nigerian
activities which took place in territory which Nigeria reasonably consid
ered to be its own territory.
O. Consequences flowing from Nigeria's alleged international responsibil
ity
15.66 Cameroon argues that Nigeria's international responsibility gives
rise to certain consequences. 86
Nigeria acknowledges that international responsibility for a breach of i
nternational obligations carries
with it certain consequences in the way of remedies and reparation which
may be ordered by the Court.
The precise remedies and reparations to be ordered will depend upon the
specific findings of the Court
regarding the nature and circumstances of the particular breach in quest
ion.
15.67 Nigeria, however, denies that it is in breach of any international
obligation owed to Cameroon,
and accordingly rejects as premature, irrelevant and question-begging th
e observations made in this
respect by Cameroon.
15.68 At the same time Nigeria maintains its own claims for reparations
in respect of the counter-claims
87
which it has raised against Cameroon on the basis explained in Chapter 1
8 below.
P. Burden of proof
15.69 Cameroon's arguments on the burden of proof 88call for a number of comments.
15.70 Cameroon purports to regard Nigeria as having admitted its occupat
ion by force of a part of the
Bakassi Peninsula and of the Darak area. This view of the matter is wron
g; Nigeria refers to what is said
above, at paragraphs 15.8-15.11.
15.71 As regards the incidents said to have occurred along the land boun
dary, Nigeria notes that
Cameroon accepts the obligation to establish the facts it mentions:
"Cameroon must provide the required proof ... One cannot deny the necess
ity for the
defendant Party as well as for the Court itself to know the subject matt
er, the place, the
89
date and the manner in which the incidents to which Cameroon refers took
place."
90
15.72 Cameroon goes on to say that it "considers that it has established
the facts to a sufficient degree"
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Nigeria strongly disagrees. In its Sixth Preliminary Objection, in its Counter-Memorial and now in this
present Rejoinder, Nigeria has demonstrated Cameroon's repeated "lack of precision" 91 in respect of
incidents cited, its failure to provide "all the information capable of
identifying"2 them, including ... "[a]
bove all, the date on which [they] allegedly took place," and generally
the fact that. "all the ... factual
pieces of information are very scanty in nature, to the extent that Nige
ria is unable to put together a
precise idea of the facts." Cameroon accepts the need for adequate information on all these matters
- for
the phrases quoted are all (with the exception of the substitution of "
Nigeria" for "Cameroon" in the last
93
one) taken from Cameroon's Reply where they appear as criticisms of Nigeria's counter-claims.
15.73 Cameroon seeks to justify its own failure to provide adequate evid
ence to satisfy the burden of
proof resting upon it by seeking to assert that the requirement to provi
de evidence is applied "with a
certain flexibility, according to the circumstances characterising the d
ispute in question" 94 Cameroon,
however, appears to equate "flexibility" with "laxity". The Court has ne
ver said, or even suggested, that
allegations need not be properly proved. The cases cited by Cameroon are
unhelpful to its argument. In
the Corfu Channel case 95 the Court's acceptance of circumstantial evidence arose in the particul
ar
circumstances of that case, where the alleged violation of international
law occurred wholly within the
territorial sea of the Respondent State and the Applicant, in the absenc
e of co-operation from the
respondent, was therefore unable to produce direct evidence of what had
happened. The case concerning
96
United States Diplomatic and Consular Staff in Teheran equally involved special considerations: the
Court did not just open the door to press reports in general, but rather
, faced with a non-participating
defendant, recognised that press reports can be used as evidence in the
particular circumstances where
they testified to a situation which is of world-wide notoriety and of wh
ich, in effect, the Court has
judicial knowledge. The great caution needed before placing reliance on
media reports was emphasised
by the Court in the case concerning Military and Paramilitary Activities in and against Nicaragua 97 -
even though that case too concerned (at the merits) a non-participatin
g Respondent State. And in that
case the Court made clear that the burden of proof rests with the party
making an allegation, and it is that
party which suffers the consequences if it fails to satisfy that burden.
The relevant passages have already
98
been put before the Court in Nigeria's Counter-Memorial.
15.74 Cameroon seeks also to excuse its lack of adequate evidence by inv
oking the limited facilities for
evidence-gathering available in the Cameroonian countryside far from urb
an centres. 99 Nigeria is well
aware of those constraints. But they cannot be allowed to diminish to va
nishing point the normal legal
requirement that allegations must be properly established by adequate pr
oof. Thus, to take but one
example, Cameroon accepts that
"It is clear that, quite often, no witness was present at the precise moment an incident
occurred, or that the witnesses were simple individuals." 100 (emphasis added)
Whatever the reason, the absence "quite often" of witnesses to an incide
nt cannot but undermine
Cameroon's attempt to substantiate the incident. Similarly, witnesses wh
o were only simple individuals
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are in no way being reproached for that fact, but at the same time that
fact does cast doubt on the weight
to be attached to their testimony.
15.75 Again, Cameroon states that
"In the majority of cases, a certain lapse of time is necessary before p
ublic officials arrive
101
on the scene."
This too is understandable. But there is, in a case where international
responsibility is being alleged
against another State, a world of difference between the lapse of a few
days before officials can get to
the scene of an alleged incident, and the lapse of several - sometimes m
any - years before that incident is
brought to the knowledge of the other party. The former does not justify
the latter.
15.76 Finally, Cameroon seeks to justify the use of official reports by
departments or agencies of a
State's central administration in lieu of first-hand evidence. Nigeria a
cknowledges that such reports will
usually not be written by those with direct personal knowledge of the in
cident being referred to; they
will, as Cameroon puts it, reflect information which "is gathered by som
e people, and synthesised,
reported and used by others." 102 But therein lies the precise problem. All those with experience of
bureaucracies know the extent to which the 'synthesising, reporting and
use' of information by persons
other than those with first-hand knowledge of the circumstances is apt t
o involve distortions,
abbreviation and embellishment of the original version of events. That i
s why Nigeria does not object to
the use of such second-hand or third-hand reports as such, but to their
use unsupported by the original
evidence, statements, etc., on which they were based. A report by a distant official, giving a third-hand
account of an event, is simply not a reliable basis for the attribution
of international responsibility. If the
original evidence on which the report was based is available, it should
be produced; but if, without good
reason, there is no such evidence available, it is difficult to accept t
he report itself as sufficient to satisfy
the burden of proof - which is necessarily high in cases involving so se
rious a matter as a State's
international responsibility.
Q. The role of protests
15.77 Cameroon seeks to argue that its failure to protest against those
of Nigeria's actions which it
regards as a violation of its rights should not be held against it.103
15.78 Cameroon appears to regard a protest as a method of proof, and as
such as only one among many
104
such methods, capable of being replaced if necessary by other methods of
proof. But that is to
misunderstand the role of protest. The position is expressed thus in Oppenheim's International Law (9th
ed., 1992, at pp. 1193-1195 paragraph 579; footnotes omitted):
"A protest is a formal communication from one state to another that it o
bjects to an act
performed or contemplated by the latter. ... A protest principally serve
s the purpose of
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preserving rights, or making it known that the protesting state does not
acquiesce in, or
does not recognise, certain acts: but it does not nullify the act compla
ined of....
On the other hand, if a state acquires knowledge of an act which it cons
iders
internationally illegal and in violation of its rights, and nevertheless
does not
unambiguously protest, this attitude may imply a renunciation of those r
ights and
acquiescence in the act complained of. The significance of an absence of
protest will to a
large extent depend upon all the circumstances of the situation; failure
to protest by a state
being directly and substantially affected by the act in question will be
of greater
significance than failure by a state not so affected."
There can be no doubt that in relation to the Nigerian acts of which Cam
eroon now complains,
Cameroon is a State - indeed, the only State - directly and substantially affected.
15.79 Cameroon's failure to protest when it should have done so in order
to protect its rights leads
inevitably to the conclusion as a matter of law that Cameroon acquiesced
in the acts in question. The
relevance of protest against Nigerian actions, and of failure to protest
, is thus not so much a matter of
proof, but a matter of preserving, or losing, the right to present a cla
im against Nigeria arising out of
those actions.
15.80 Cameroon seeks to justify its failures to protest when it should i
n principle have done so if it was
to preserve its rights to present a claim, by suggesting that it did not
always lodge protests because it did
not wish to raise tensions in its relations with Nigeria. This calls for
two comments.
(1) Cameroon cites President Ahidjo's letter of 23 May 1981 105 as evidence that it had
told Nigeria that it would not raise every incident as an affair of Stat
e but would prefer to
keep them to a local level. But the portion of that letter quoted by Cam
eroon says
something rather different, since in it the President states that "time
and time again ... I
instantly drew your attention to the incidents which are occurring...".
So Cameroon did
raise such incidents "time and time again" at Head of State level. And C
ameroon's
protestations of wishing in future to downgrade these matters to the pur
ely local level
must be seen against the background that this letter was written in the
context of
Cameroon's ambush of Nigerian soldiers in Nigerian territory for which P
resident Ahidjo
106
apologised and paid compensation. It is not surprising that Cameroon should wish to
keep such incidents at a local and unobtrusive level.
(2) Cameroon is free to make the lawful choices it wishes to make for
political reasons; in
that respect it is free to choose not to protest for political reasons a
ssociated with its view
of relations with a neighbouring State. It has preferred a policy of red
uced political
tensions to the protection of its legal position, and has in consequence
chosen to run the
risk that its failure to protest will be held against it. It is free to
make such a choice, but
cannot thereby escape the legal consequences of doing so - particularly
when it is itself the
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initiator of the proceedings which depend upon its legal position not ha
ving been
prejudiced.
R. Facts need to be clearly established
15.81 In cataloguing the requirements to be met if a State was to be hel
d internationally responsible for
its conduct, Cameroon omitted to deal with the need for the facts to be
clearly established. Nigeria raised
this question in its Sixth Preliminary Objection. This was to the effect that Cameroon had not, in its
Applications and Memorial, given an adequate indication of the facts on which its allegations of
Nigeria's international responsibility were based. In rejecting this Pre
liminary Objection the Court (in a
107
passage quoted with approval by Cameroon ) stated that while Cameroon's statement of the facts on
which it relied was sufficient to enable the Application to proceed, this did not "prejudge the question
whether, taking account of the information submitted to the Court, the f
acts alleged by the Applicant are
108
established or not ... Those questions belong to the merits." In other words, the Court held that while
the facts given were adequate to enable Cameroon's case to proceed, they
were not necessarily adequate
to enable it to succeed.
15.82 Whether the facts are sufficient to enable Cameroon to sustain the
serious allegations made
against Nigeria is now an issue which the Court must consider. This is a
matter which can only be
examined in relation to the alleged circumstances of each incident relie
d on by Cameroon as the basis
for or in support of its claims against Nigeria. Nigeria will therefore
revert to this question in its incident-
by-incident consideration of Cameroon's allegations in the Appendix to C
hapter 16 below.
S. Incidents must not to be time-barred
15.83 In cataloguing the requirements to be met if a State was to be hel
d internationally responsible for
its conduct, Cameroon also omitted to include the need for the claim to
relate to incidents occurring
sufficiently recently so as not to be time-barred. Cameroon has refraine
d from any detailed comment on
this issue.09
15.84 Cameroon does not seek to deny that a rule of extinctive prescript
ion forms part of international
law. Given the authorities cited by Nigeria, 110 Cameroon can scarcely do so. While international law
does not prescribe a specific time limit after which claims are barred,
the rule is rooted in considerations
of equity, good faith and acquiescence, and the practical problems assoc
iated with the pursuit of stale
claims. Examples of such problems are to be found in the Appendix to Cha
pter 16 below, at paragraphs
12 and 16(3).
15.85 These considerations are reflected in the approach adopted by the
International Law Commission
111
in its work of State Responsibility. Draft Article 46 as adopted in 2000
provides:
"Loss of the right to invoke responsibility
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The responsibility of a State may not be invoked if:
(a) The injured State has validly waived the claim in an unequivocal m
anner;
(b) The injured State is to be considered as having, by reason of its
conduct, validly
acquiesced in the lapse of the claim."
112
The Special Rapporteur's Third Report, submitting the proposal which became Article 46, noted that
"The overall picture is one of considerable flexibility... [T]he decisiv
e factor is whether
the respondent could have reasonably expected that the claim would no longer be
pursued... Moreover, given modern means of communication and the increas
ed
113
availability of third-party remedies in many cases, a somewhat more rigorous approach
to the pursuit of available remedies seems justified, even in the contex
t of inter-State
114
claims." (emphasis in the original)
15.86 Much depends on the circumstances of particular cases. These inclu
de not just the immediate
circumstances of the incident itself, but also such associated matters a
s the level of public awareness of
events in the locality in question and the state of communications with
outlying areas. Cameroon itself
invokes this latter consideration in the different context of the burden
of proof 115: it states that
"it is necessary to take into account the factual circumstances which pr
evail far from urban
116
centres, in the Cameroonian countryside near the boundary with Nigeria."
15.87 While that is a bad argument in relation to the burden of proof, a
s explained in paragraph 15.74
above, it is very relevant to the practical implications of Cameroon's p
ursuit of stale claims. In relation
to remote and rural communities, like all those concerned in the inciden
ts put forward by Cameroon,
unless complaints are made reasonably soon after the events in question
have occurred it is often not
possible for a respondent State to trace and comment upon what is said t
o have happened. A much
shorter period for extinctive prescription is justified in those circums
tances than that which would be
appropriate "were a similar incident to occur in the urbanised areas of
industrialised countries." 117
15.88 Cameroon makes only three brief comments on extinctive prescriptio
n, all in RC paragraph
11.213. Each is mistaken.
15.89 Cameroon says that Nigeria has not indicated which are the inciden
ts in respect of which claims
are barred by extinctive prescription. This is wrong. When elaborating t
he general rule of extinctive
prescription at NC-M paragraphs 24.52-24.54, Nigeria stated that it woul
d draw attention to each alleged
incident which it considered to be now barred by lapse of time. In exami
ning the 82 alleged incidents
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raised by Cameroon, Nigeria did precisely that: see, for example, the in
cidents numbered 8 (at NC-M
paragraph 24.101), 9 (at NC-M paragraph 24.107), 10 (at NC-M paragra
ph 24.116), 11 (at NC-M
paragraph 24.121) and 22 (at NC-M paragraph 24.190). Many other incid
ents are specifically identified
in a similar way as being now too stale to be the subject of internation
al claims.
15.90 Cameroon says that the incidents only "date back some fifteen year
s in the oldest cases". This is
wrong. Thus the incident numbered 8 by Nigeria dates back to 1970 (i.e.
24 years before Cameroon
instituted these proceedings, and now some 30 years old), and that numb
ered 49 dates back to 1962 (i.e.
32 years before the case was started, and now some 38 years old). Even
in its Reply Cameroon cites
incidents much older than its own 15-year limit: thus one incident is sa
id to have occurred in 1964. 118
15.91 Cameroon adds that in any event Cameroon's main claim relates to N
igerian occupation of
Cameroonian territory, which is a continuing state of affairs and theref
ore not a matter to which
extinctive prescription is relevant. But (a) Nigeria has not cited ext
inctive prescription in relation to
current circumstances, and (b) Nigeria's response to Cameroonian claim
s arising out of current
circumstances rests on other grounds (principally that the territories
in question are Nigerian and not
Cameroonian).
15.92 Since Cameroon is now no longer pursuing claims arising out of eac
h of the various alleged
incidents taken separately and on its own (see below, paragraph 16.11 et seq.), considerations of
extinctive prescription may play a less formal role. But they cannot be
wholly disregarded. Just as the
facts of incidents must still be properly established even if the incide
nts are cited not as in themselves a
basis for individual claims but as illustrations of some broader allegat
ion (see below, paragraphs 16.31-
16.33), so too the staleness of allegations, with consequent problems i
n properly identifying and
substantiating them, inevitably diminishes their value, and will frequen
tly extinguish it altogether.
T. Cameroon's 'late-mentioned' incidents
15.93 Cameroon sought by a letter dated 9 April 1997, i.e. after the deposit of its Memorial, to put
119
before the Court certain additional facts in its so-called 'memorandum o
n procedure'. Nigeria objected
120
to that attempt to introduce what amounted to an unauthorised extra writ
ten pleading. Cameroon has
now reintroduced this 'memorandum' as an Annex to its Reply. 121 Moreover, Cameroon has chosen to
mention certain further incidents for the first time in its Reply.
15.94 These late-mentioned incidents are said to have occurred during th
e period 1964-1999. Those said
to have occurred before the date on which Cameroon submitted its Memorial could, and should, have
been dealt with in that pleading. Nigeria objects to the introduction in
to these proceedings of such late-
mentioned incidents, which it cannot deal with properly since Cameroon h
as, as usual, not identified
them with sufficient particularity.
15.95 Despite the lateness of Cameroon's mention of these incidents and
the lack of adequate particulars
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about them, Nigeria will nevertheless, in the Appendix to Chapter 16, do
its best to respond to them.
15.96 However, in relation to the newly-mentioned incidents Nigeria woul
d at this stage make four
preliminary points.
(1) Cameroon's failure to mention them in a timely manner casts doubt
on Cameroon's
sincerity in raising them at this very late stage in the proceedings.
(2) By raising new incidents at this late stage, Cameroon is preventin
g there being a full
opportunity for them to be fully pleaded in successive rounds of written
pleadings (a
matter to which Nigeria adverted in NC-M paragraph 24.9).
(3) By raising, in its Reply of 4 April 2000, incidents which only occurred after 29 April
1998 (the date of Nigeria's amended Declaration under Article 36(2) o
f the Court's
Statute), Cameroon is in effect seeking to introduce into the present c
ase new allegations
which could not have been the subject of proceedings against Nigeria und
er the terms of
Nigeria's Declaration at the time the allegations were made.
(4) Since Cameroon has seen fit to introduce new incidents at such a l
ate stage, Nigeria
122
will, as envisaged in its Counter-Memorial, present in this Rejoinder some additional
counterclaims (below, Chapter 18).
__________
1 RC para. 11.168: "accessoire".
2 See below, paras. 16.26-16.27.
3 RC para. 10.03.
4 RC para. 10.07.
5 See e.g. RC para. 10.14.
6 At RC para. 10.39.
7 At RC para. 11.31: "que certains, parmi les plus graves, des faits qu'
il évoqués pour démontrer l'engagement de
la responsabilité internationale du Nigéria sont reconnus comme av
érés par le défendeur. En particulier, il y a
accord entre les Parties sur l'invasion puis la présence continue des
forces militaires nigérianes dans la presqu'île
de Bakassi dupuis 1994. Dès lors, la responsibilité du Nigéria
ne peut faire de doute en ce qui les concerne."
8 RC para. 10.08.
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9 RC paras. 10.09-10.11, and 11.20-11.21.
10 RC paras. 11.20-11.21.
11 RC para. 10.12.
12 NC-M paras. 24.12, 24.14 and 24.20.
13 NC-M para. 24.24.
14 NC-M para. 24.40.
15 RC para. 10.14: "On peut admettre que le fait pour en Etat de défe
ndre une thèse juridique spécifique
n'entraîne pas sa responsabilité.", and to similar effect, RC para
. 11.13.
16 RC para. 10.13: "distinction ... purement académique."
17 NC-M para. 24.39.
18 Below, para. 15.46 et seq.
19 e.g. NC-M paras. 24.12, 24.14, 24.20, 24.24, and 24.40
20 RC para. 10.14: "On peut admettre que le fait pour en Etat de défe
ndre une thèse juridique spécifique
n'entraîne pas sa responsabilité."; and similarly RC, para. 11.13.
21 RC para. 10.14: "[aussi] longtemps que, par des moyens pacifiques, il
cherche à convaincre l'autre partie du
bon-fondé de sa thèse."
22 "Le Nigéria ne s'est pas borné à discuter avec le Cameroun c
ertaines difficultés concernant la frontiére
commune qui ont surgi dans la pratique."
23 e.g. NC-M paras. 24.270-24.271, 24.280 and 24.369-24.370; and paras.
99(2), 99(3), and 106 in the Appendix
to Chapter 16 below.
24 RC para. 10.14: "agi unilatéralement, et en plusieurs lieux, avec
l'intensité la plus extrême, à savoir par la
force militaire."
"dans la presqu'île de Bakassi, des luttes armées ont eu lieu ..."
25 RC para. 10.4: "le Nigéria ayant attaqué les forces camerounais
es limitées qui y étaient stationnées."
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26 "...à remettre en cause la décision, dépourvue de toute ambi
guïté, prise par la Cour dans l'arrêt du 11 juin 1998
sur les exceptions préliminaires."
27 Para. 87 is about the criteria for determining whether a dispute exis
ts, and concludes that there exist disputes
about Darak etc., Bakassi, and Tipsan: it has nothing to do with the reg
ime for international responsibility.
28 RC para. 10.15.
29 See NC-M, Chapters 9, 10 and 17; and Chapters 2, 3 and 5 of this Rejoinder. It is significant, for example, that
the report produced by Cameroon as RC Annex 59 shows that at the time th
e report was prepared (February
1981) Cameroon did not have police and gendarmerie posts along the boun
dary in the area, and it was being
recommended that these should now be built, along with proper support in
frastructure, such as transport,
communication links and accommodation (para 3); similarly, an increase
in Cameroonian military strength is
recommended (ibid.). This is part of a picture of steady Cameroonian incursions into the Bakassi peninsula, at
the expense of Nigerian interests and rights.
30 RC paras. 10.23-10.25.
31 "frontière établie".
32 See also paras. 16.5 and 16.44 below, and paras. 64-65 of the Appendi
x to Chapter 16 below.
33 MC paras. 6.13-6.27; and reaffirmed in RC paras. 11.58-11.76.
34 RC para. 10.16.
35 RC paras 10.17-10.22.
36 "thèse ... salon laquelle, même si les zones disputées entre
les deux Etats appartenaient au Cameroun, le
Nigéria n'a commis aucun acte illicite, étant donné le manque d
e clarté concernant le tracé de la frontière."
37 NC-M para. 24.50.
38 Emphasis added.
39 See above para. 6.5(2), footnote 3.
40 Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Ob
jections), I.C.J. Reports 1998,
p. 315, para. 90.
41 RC para. 11.19: "ne conteste pas".
42 ibid."que, dans quelques secteurs frontaliers, la démarcation est incertai
ne et a pu donner lieu à des mésprises
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ou à des incertitudes en l'absence de tracé précis sur le terra
in."
43 "quelques secteurs frontaliers": See also Cameroon's admission in agr
eeing with Nigeria that the land
boundary "is partly undemarcated": RC para. 12.29.
44 "ces secteurs sont rares car la frontière terrestre camerouno-nigé
riane est non seulement entièrement délimitée,
mais aussi, probablement, l'une des plus largement démarquées en A
frique."
45 NC-M, Chapter 19.
46 RC para. 4.109.
47 NC-M para. 19.6.
48 African Boundaries London 1979, at p. 586.
49 RC para. 11.19: "dans quelques secteurs frontaliers, la démarcatio
n est incertaine et a pu donner lieu à des
méprises ou à des incertitudes en l'absence de tracé précis
sur le terrain"
50 ibid. "largement démarquées".
51 RC para. 10.17: "Ce prétendu manque de clarté est pure inventio
n. Aucun doute sérieux n'est permis en ce qui
concerne l'appartenance au Cameroun de ces deux zones réclamées pa
r le Nigéria."
52 NC-M, Chapters 8 and 19.
53 See Chapters 1 and 7.
54 See paras. 3.11-3.15 above.
55 "clairement défini": RC paras. 10.18-10.22.
56 "L'ensemble de ce tracé": RC para. 10.19.
57 I.C.J. Reports 1986, p. 565, para. 20.
58 RC para. 10.18.
59 See NC-M, Chapters 9-10 and 16-17; and above, Chapters 2-3 and 5.
60 "L'ensemble de ce tracé est clairement défini par des traité
s ainsi que par d'autres actes internationaux dont la
validité n'est pas contestable.": RC para. 10.19.
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61 Paras. 15.38-15.45, above.
62 RC para. 10.19.
63 Para. 6.22 above.
64 "neutraliser l'application du principe de l'uti possidetis": RC para. 10.22.
65 NC-M para. 24.39; see also sub-para. (9) of the present paragraph.
66 Year Book of the ILC, 1974, Vol. II, Pt. 1, at p. 199, para (11) of
the Commentary on draft Article 11.
67 See above, sub-para. (9).
68 RC para. 11.15.
69 RC para. 11.17.
70 "dans un passage malheureusement isolé de son contre-mémoire":
RC para. 11.15. See also RC para. 1.25-
1.29, and 11.162-11.163.
71 RC paras. 1.25, 11/15 and 11.162-11.163: "Le Nigéria a égalemen
t violé le principe fondamental en vertu
duquel 'les États règlent leurs différends internationaux par d
es moyens pacifiques, de telle manière que la paix et
la sécurité internationales ainsi que la justice ne soient pas mis
es en danger'."
"Le Nigéria n'a tenu aucun compte des mesures indiquées par la Cou
r dans son ordonnance du 15 mars 1996."
72 RC para. 11.15. See also RC paras. 1.25-1.29, and 11.162-11.163.
73 RC paras. 1.25, 11.15, and 11.162-11.163.
74 NR Annex 182.
75 NR Annex 183.
76 RC paras. 10.26-10.32; also para. 1.44.
77 RC para. 10.33.
78 RC para. 10.27.
79 RC para. 10.29.
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80 I.C.J. Reports 1962, p. 6.
81 cf RC para. 10.35.
82 NC-M, Chapter 8.
83 Above, paras. 15.46-15.47.
84 Oppenheim's International Law, Vol. 1 (9th ed., 1992), ed. Jennings and Watts, p. 430, para. 129.
85 NC-M para. 24.34; and see para. 15.54 et seq. of this Chapter.
86 RC paras. 10.35-10.37.
87 NC-M, Part VI and Chapter 18 below.
88 RC paras. 10.38-10.50.
89 RC para. 10.41: "Cameroun doit apporter la preuve requise; ... On ne
saurait nier la nécessité pour la Partie
défenderesse ainsi que pour la Cour elle-même de connaître l'ob
jet, le lieu, la date et la manière dont se sont
produits les incidents auxquels le Cameroun se réfère."
90 RC para. 10.43: "Le Cameroun estime avoir suffisamment établi les
faits."
91 RC. 10.42: "d'un manque ... de precision."
92 RC. Para. 10.44: "toutes les indications susceptibles d'identifier ..
."
"[s]urtout la date à laquelle cet incident aurait eu lieu n'est pas m
entionnée."
"Toutes les ... précisions factuelles son extrêmement sommaires, s
i bien que le Cameroun est dans l'impossibilité
de se faire une idée précise des faits. "
93 RC para. 10.42.
94 RC para. 10.44: "avec une certaine flexibilité, en fonction des ci
rconstances caractérisant le différend en
question."
95 I.C.J. Reports 1949, p. 4.
96 I.C.J. Reports 1980, p. 3.
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97 I.C.J. Reports 1986, p. 14.
98 NC-M para. 24.46.
99 RC para. 10.48.
100 "Il est évident que, bien souvent, au moment précis où un incident se produit, aucun témoin n'es
t présent, ou
il s'agit de simples particuliers."
101 ibid.: "Dans la majeure partie des cas, un certain laps de temps est nécessa
ire avant que des agents publics
arrivent sur les lieux."
102 RC para. 10.49: "récoltées par certains, synthétisées, r
apportées ou exploitées par d'autres."
103 RC paras. 10.51-10.58.
104 RC paras. 10.52 and 10.56.
105 Annex NC-M 343.
106 See para. 16.35 et seq. below.
107 RC para. 11.06.
108 I.C.J Reports 1998, p. 319, para.100.
109 RC paras. 11.212-11.213.
110 NC-M paras. 24.52-24.54.
111 Doc. A/CN.4/L.600, 11 August 2000.
112 Crawford, Third Report on State Responsibility (Addendum), 10 July
2000 (A/CN.4/507/Add.2), paras. 257-
259.
113 "It is to be noted that Nigeria's acceptance of the Court's compulso
ry jurisdiction dates from 1965; at any
time thereafter Cameroon could have instituted proceedings in the same m
anner as it chose to do so in the present
case."
114 ibid. para. 259.
115 See above, para. 15.74.
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116 "il faut tenir compte des circonstances factuelles qui prévalent
loin des centres urbains, dans les campagnes
camerounaises situées près de la frontière avec le Nigéria."
: RC para. 10.48.
117 "si un incident semblable s'était produit dans les zones urbanisé
es de pays industrialisés": ibid.
118 RC para. 11.38: see below, Appendix to Chapter 16, para. 112 et seq.
119 See RC paras. 11.04-11.10, 11.23 and 11.141-11.164.
120 See the letter dated 13 May 1997 sent by the Agent of the Federal Re
public of Nigeria to the Registrar of the
Court (Annex NR 184).
121 RC, Vol. III, Annex 1.
122 NC-M para. 25.6.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 16
ALLEGED INCIDENTS
SAID TO INVOLVE NIGERIA'S RESPONSIBILITY
A. Preliminary Observations
119.1 Cameroon has referred to a number of alleged incidents which are s
aid by Cameroon to be
relevant to its claim that Nigeria bears international responsibility. A
number of preliminary points need
to be made in order that these alleged incidents may be seen in their co
rrect perspective.
119.2 First, it is apparent that each of these incidents, taken on its own, is not
of sufficient gravity to
justify the institution of proceedings before the International Court of
Justice. Most concern the sort of
relatively trivial matters which neighbouring States are expected to sor
t out between themselves. It is
noteworthy that in its Reply Cameroon, as will be shown later (paragraph 16.11 et seq.), goes a long way
to recognising this by withdrawing its claims of Nigerian international
responsibility for individual
incidents taken on their own.
119.3 Second, those incidents are not only mostly trivial, but they are few in numbe
r. They are spread
over a period of two or three decades and a land border which is some 1,
800 kms long plus areas of
dispute in Lake Chad and Bakassi. They are thus not, as Cameroon would h
ave it, testimony to the
gravity of the overall situation, but rather the opposite.
119.4 Third, this reflects the fact that the local populations in the border areas
have on the whole
managed their border and cross-border relations harmoniously. For the mo
st part, boundary problems are
not part of their daily lives, which are more concerned with such matter
s as tribal affinities, local
agriculture and fishing, and local problems of transport communication b
y road and river.
119.5 Fourth, Cameroon seeks to present the overall situation as one in which there
was an existing
situation in which Cameroon's territorial position was well established,
and Nigeria was engaged upon a
campaign of seeking to change that status quo. As Nigeria has explained elsewhere (e.g. above,
paragraph 15.34 and below, paragraph 16.44; and the Appendix to this Cha
pter, paragraphs 64-65), the
opposite is the case. Since Nigeria and Cameroon attained independence i
n 1960, the general picture has
been one of harassment by Cameroon in seeking to erode Nigeria's well-es
tablished administration of
many border areas and to bring about their Cameroonianisation. Examinati
on of the various so-called
incidents makes it apparent that this is what has been happening.
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119.6 Fifth, Nigeria draws attention again to certain consequences flowing from the
Court's treatment of
Nigeria's Sixth Preliminary Objection and Nigeria's Request for Interpretation. These matters have been
dealt with above, at paragraphs 14.16-14.22.
119.7 Sixth, Cameroon complains that Nigeria, in its Counter-Memorial, did not address the various
incidents cited in Cameroon's so-called "Memorandum on Procedure" or the
facts involved in
Cameroon's request for an indication of provisional measures (RC, parag
raph 11.29).
(1) Nigeria did not refer to the incidents referred to in the "Memoran
dum on Procedure"
because it was of the view that that Memorandum had been improperly put
before the
Court as a pleading and that Nigeria therefore had no need to respond to
it. Now that
Cameroon has formally submitted that document as part of its Reply (RC, Vol. III, Annex
1), Nigeria will take its contents into consideration in this Rejoinder.
(2) As to the facts forming the basis of Cameroon's request for provis
ional measures, far
from Nigeria having omitted all mention of them, Nigeria in fact made th
ose events the
subject of one of its counterclaims (NC-M paragraphs 25.14-25.17).
119.8 Seventh, although Nigeria drew attention in its Counter-Memorial to the general inadequacy of the
facts given by Cameroon, it is apparent that in many instances Cameroon
still has either failed to realise
the need for adequate facts to be given if its allegations are to be sub
stantiated, or has been unable to
provide more facts, or has been unwilling to provide them in time for Ni
geria to give a considered
response in this Rejoinder.
119.9 Eighth, Cameroon continues to display a carefree attitude to the facts of part
icular incidents. This
is, for example, evident in Cameroon's treatment of the question of the
date when an incident is said to
have occurred. Thus Cameroon takes the position that it would be futile
to try to fix a particular date,
and just one, for acts which Cameroon has alleged were regular occurrenc
es. 1This is unacceptable:
Cameroon cannot establish a legal case against Nigeria on the basis of u
nspecific allegations as to
alleged wrongdoing by Nigeria, and Nigeria cannot respond adequately to
such generalised allegations
other than by rejecting them outright.
119.10 It is for Cameroon, as the Applicant, to make good its case, and
if Cameroon "gives an
inadequate rendering of the facts ... on which the claim is based" 2 it is Cameroon which bears the
consequences. The date on which an incident occurs is one of the essenti
al facts of the case (as
Cameroon itself accepts: see above, paragraph 15.72): without knowing w
hen an incident is said to have
occurred Nigeria cannot check the circumstances which gave rise to it, o
r indeed verify whether it
occurred at all. If the occurrences were as regular as Cameroon says, Ca
meroon presumably has access
to reports on the basis of which it was in a position to assert that the
se occurrences were indeed taking
place on a regular basis, and there should be no difficulty for Cameroon
in giving dates for them. If
Cameroon does not have such internal reports, then the veracity of Camer
oon's general allegation is very
much called into question and it can only be regarded as unsubstantiated
.
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B. Cameroon's withdrawal of its assertion of Nigeria's international res
ponsibility for individual incidents
119.11 There is a ninth preliminary point to be made, which is of a very different order from t
hose
previously mentioned. It seems that Cameroon is no longer seeking to est
ablish Nigeria's international
responsibility in relation to each of the various alleged incidents, tak
en separately and on its own, which
Cameroon has mentioned in the successive written and oral stages of this
case.
119.12 Cameroon first claims that Nigeria behaved misleadingly "when it
tries to suggest that Cameroon
intends to have the Court acknowledge its [sc. Nigeria's] responsibility
for each of the incidents it cites
3
taken in isolation." In other words Cameroon here asserts that Nigeria was wrong in thinking
that
Cameroon wanted the Court to hold Nigeria responsible for each of the in
cidents taken as separate and
individual incidents.
119.13 However, everything that Cameroon did in and before its Memorial clearly indicated that that
was precisely what Cameroon wanted.
119.14 Cameroon cites 4its Submissions as set out in paragraph 9.1 of its Memorial. It includes
paragraph 9.1(g) in its citation, but does not give that sub-paragraph
any further examination. Yet that
sub-paragraph, which is essentially identical with paragraph 20(e') of
Cameroon's Application and
paragraph 17(e) of its Additional Application, is the procedural basis for the discussion of Nigeria's
alleged international responsibility.
119.15 That paragraph 9.1(g) of Cameroon's Memorial reads as follows:
"(g) That the internationally unlawful acts referred to above and desc
ribed in detail in the
body of this Memorial involve the responsibility of the Federal Republic
of Nigeria"
It is apparent from that language that Cameroon was asserting that Niger
ia bore international
responsibility, and that that responsibility was incurred as a result of
the "internationally unlawful acts
referred to above [i.e. in the previous Submissions] and described in de
tail in the body of [the] Memorial.
119.16 The previous Submissions in sub-paragraphs (a) to (e) include
d not only alleged violations of
5
certain fundamental principles, but also included (in sub-paragraph (e
)) references to acts involving
- "using force" against Cameroon,
- "militarily occupying" parcels of Cameroonian territory in the Lake Ch
ad area and in
Bakassi, and
- "repeated incursions, both civilian and military", all along the land
boundary.
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Those alleged acts were all also the subject of detailed description in
Cameroon's Memorial, as separate
and individual incidents, even if in many cases the level of detail and
specificity provided by Cameroon
left much to be desired. They were thus clearly included within the scop
e of Cameroon's Submissions as
to Nigeria's international responsibility.
119.17 That that was so is borne out by even the most cursory reading of
the relevant Chapters of that
Memorial. Thus, after referring to "repeated incursions" by Nigeria at several p
oints along the land
boundary, Cameroon stated that these acts "constitute the internationall
y wrongful acts imputable to
6
Nigeria and underlying that country's international responsibility to Ca
meroon" ; again, in Section 4
entitled "Nigeria's Responsibility by Reason of Such Internationally Wro
ngful Acts" Cameroon, in
claiming that the relevant facts are attributable to Nigeria, states tha
t "each of the acts described in
7 8
Section 6.2 above requires, as a rule, an individual analysis". (emphasis added)
119.18 Nigeria also recalls that its understanding as to Cameroon's alle
gation of separate international
responsibility for each incident was the evident basis for Nigeria's Sixth Preliminary Objection. At no
time during that phase of this case did Cameroon seek to deny that under
standing or to explain its
position in the way which it has now done. Allegations of misleading con
duct are more appropriately
addressed to Cameroon than to Nigeria.
119.19 It was thus in no way "misleading" for Nigeria to treat Cameroon'
s Applications and Memorial as
alleging that Nigeria bore international responsibility for each and eve
ry one of the incidents so referred
to and described by Cameroon.
119.20 Cameroon in its Reply has fundamentally changed its position. Cameroon has now withdrawn its
claims of Nigeria's international responsibility in respect of the vario
us incidents taken in isolation and
on a separate and individual basis. Nigeria welcomes this change, which
greatly simplifies the task
facing the Court.
119.21 Cameroon now draws a distinction between, on the one hand, its al
legation that Nigeria has
violated its obligation to respect established boundaries and, on the ot
her, the particular acts by which
9
that violation has been manifest. Cameroon goes on to say that
"the incidents to which Cameroon has referred until now, and those which
it is entitled to
cite in the future ..., must be considered for what they are: grounds in
support of the
submissions, which feature at the end of the different written procedura
l documents and
10
which will be finalised ... at the end of the final statement to be made
in its name".
11
119.22 To the same effect is Cameroon's statement that Nigeria, in focussing discussion on individual
incidents, was dealing with "accessory issues" and seeking to divert the
Court from the essentials: as
Cameroon then went on to say,
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"The subject of Cameroon's request for [recognition of] responsibility i
s the invasion and
occupation of part of its territory by the Nigerian authorities. The spe
cific incidents that
have followed one another since the 1980s are merely facts that testify
and illustrate this
occupation. They are not therefore the essential subject of this claim [
i.e. for
responsibility]."
119.23 Cameroon restates its position in the following passage:
"Furthermore, the Republic of Cameroon is at pains to reiterate, in the
most formal
manner and in order to avoid all ambiguity, that with the exception of t
he massive
occupations of major parts of its territory in the North-West (region o
f Lake Chad) and in
the South-West (Bakassi Peninsula), it is not so much the incidents in
themselves, taken in
isolation, which matter, as the incidents as a whole, which establish be
yond all doubt, that
Nigeria must be held liable for grave, frequent and generalised violatio
ns of the
fundamental principles and rules specified above ... and for repeated an
d deliberate
12
violations of the border between the two countries"
13
119.24 Later Cameroon further explains its position in saying that
"[Cameroon's] intention, in presenting these facts, is not to ask the Court to accept that the
Respondent is liable with respect to each of them, but to show that Nigeria has violated
and continues to violate the rights of Cameroon founded on the most fund
amental
principles of public international law, in particular, the following pri
nciples:
- the non-use of force;
- territorial integrity;
- territorial sovereignty;
- non-intervention in internal affairs." (emphasis added)
119.25 So far as concerns the position in the Lake Chad area, Cameroon's
decision not to pursue
separate and individual claims of international responsibility is clear.
Cameroon says:
"The subject of Cameroon's request for [recognition of] responsibility i
s the invasion and
occupation of part of its territory by the Nigerian authorities. The spe
cific incidents that
have followed one after another since the 1980s are merely facts that te
stify and illustrate
14
this occupation. They are not therefore the essential subjects of this c
laim."
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....
"It is not therefore a case of lodging a host of claims for responsibili
ty dealing separately
with each act of incursion and then occupation by Nigeria. ..." 15
"In this context, the incidents referred to below should not be consider
ed to be
autonomous bases for implying responsibility. Rather, they are facts pro
ving the continued
16
occupation by Nigeria of part of Cameroonian territory."
119.26 So far as concerns alleged incidents along the land boundary betw
een Lake Chad and Bakassi,
Cameroon puts its withdrawal of separate and individual claims of intern
ational responsibility beyond
doubt in the following passage:
"As Nigeria itself mentions in paragraph 25.40 (NC-M, vol. III, pp. 814
-815), it clearly
appears, on reading Cameroon's Application and Additional Application, t
hat the issues of
State responsibility did not concern the sector between the North of Bak
assi and the South
of Lake Chad. Cameroon had cited the numerous incidents that had occurred in this se
ctor
of the frontier only to prove, primarily, that the dispute between the t
wo countries also
applies to this part of the land boundary. It was predictable that such
a long section of a
boundary, which Cameroon agrees with Nigeria is partly undemarcated, cou
ld not be
incident-free."17 (emphasis added)
119.27 Nigeria welcomes Cameroon's acknowledgement that, as Nigeria had
earlier noted, the issues of
State responsibility did not concern the land boundary between Bakassi a
nd Lake Chad. As for
Cameroon's assertion that it cited incidents occurring along that land b
oundary to prove that the dispute
between the two countries applied also to that land boundary, Nigeria re
calls that the Court has already
stated in its Judgment on Preliminary Objections that "not every boundary incident implies a challenge
to the boundary" (Judgment, paragraph 89) and that "Even taken togethe
r with the existing boundary
disputes [scil. regarding Darak, Bakassi and Tipsan], the incidents and incursions rep
orted by Cameroon
do not establish by themselves the existence of a dispute concerning all of th
e boundary between
Cameroon and Nigeria" (paragraph 90, emphasis added). This conclusion
is all the stronger now that,
given Cameroon's admissions in its Reply, there is no longer a dispute with respect to Tipsan.
119.28 The cumulative result of these various statements is as follows.
Apart from those incidents which
can be regarded as in effect the very manifestation of Cameroon's broade
r assertions as to Nigerian
encroachment onto Cameroonian territory, and which are thus pursued as p
art of those broader
assertions,
(1) Cameroon is withdrawing any claims that Nigeria bears internationa
l responsibility for
individual alleged incidents arising along the land boundary between Lak
e Chad and
Bakassi; Cameroon regards them as only "accessory issues" and not part o
f the
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"essentials" of its State responsibility claims,8 and, as Cameroon puts it elsewhere, 19 not
among those of a "particularly grave nature" such as "in themselves [to]
constitute
internationally unlawful acts which engage the responsibility of Nigeria
"; instead those
incidents are merely relied on as evidence of Nigeria's alleged violatio
n of certain major
principles of international law;
(2) Cameroon is also, on a similar basis, withdrawing any claims that
Nigeria bears
international responsibility for individual alleged incidents arising in
the Lake Chad area
and in Bakassi.
119.29 Nigeria welcomes Cameroon's clarification of its position in resp
ect of Nigeria's alleged
international responsibility for the various individual incidents referr
ed to by Cameroon. Despite that
clarification, however, Cameroon's submissions in paragraph 13.01 of its
Reply do not remove all doubt
on this matter. The relevant sub-paragraphs read:
"e) That by using force against the Republic of Cameroon and, in partic
ular, by militarily
occupying parcels of Cameroonian territory in the area of Lake Chad and
the
Cameroonian Peninsula of Bakassi, and by making repeated incursions, bot
h civilian and
military, all along the boundary between the two countries, the Federal
Republic of
Nigeria has violated and is violating its obligations under internationa
l treaty law and
customary law.
...
g) That the internationally wrongful acts referred to above and describ
ed in detail in the
Memorial of the Republic of Cameroon and in the present Reply involve th
e responsibility
of the Federal Republic of Nigeria." 20
There is in these formulations a slight change compared with the equival
ent formulations in paragraph
9.1 of Cameroon's Memorial, and this may represent an attempt to reflect Cameroon's new approach.
They are, however, still subject to the considerations indicated in para
graphs 16.15-16.17 above. In the
light of the clear indications given in its Reply, and quoted in paragraphs 16.21-16.26 above, Cameroon's
position is evidently that all claims arising out of individual incident
s taken separately and on their own
have been withdrawn, whichever part of the boundary these incidents conc
ern.
119.30 In thus withdrawing its allegations of individual and separate in
ternational responsibility for the
various discrete incidents to which it had previously referred, Cameroon
may have recognised that it is
in no position to substantiate those allegations by the production of ev
idence of sufficient probative
value to support a claim of Nigeria's international responsibility in re
lation to each incident taken on its
own. Cameroon may have hoped instead that by reducing the significance o
f these alleged incidents it
will similarly have reduced the evidentiary burden resting upon it.
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119.31 This is not so. Allegations about particular happenings are of no
forensic value at all unless they
are supported by evidence sufficient to establish that they did in fact
occur in the manner alleged and are
relevant to the purpose for which they are relied on. This applies as mu
ch to allegations about incidents
which are relied on as evidence in support of violations of what Cameroo
n refers to as certain
"fundamental principles of international law" 21 as to incidents which are relied on as themselves giving
rise to international responsibility on the part of Nigeria.
22
119.32 Treating the incidents "as a whole" rather than as separate, discrete events, does not avoid the
need to establish them by proper evidence: and where something is allege
d to have been done
"persistently" or "regularly", it must be proved to have been done on several occasions, not just once.
Incidents cannot simply be taken "as a whole" and without more, on the b
asis of assertions however
often repeated, but must be substantiated one by one. Alleged incidents
"illustrate" nothing, and
"establish" nothing, except and to the extent that they are proved by ev
idence. The cumulative effect of
several zeros is still zero.
119.33 Cameroon's assertions are not by themselves sufficient. In fact,
Cameroon's assertions are
seriously defective. Nigeria has already in its Counter-Memorial drawn attention to the inadequacies of
Cameroon's presentation of the facts and circumstances surrounding the v
arious incidents on which it
relies.3 In its Reply Cameroon has attempted in some respects to make good those inadequacies
, and to
24
amplify its account of the incidents referred to. Nigeria will in turn, in the Appendix to this Chapter,
demonstrate again that Cameroon's account of the various incidents is st
ill inadequate, even as grounds
and evidence in support of Cameroon's principal allegations of Nigeria's
international responsibility for
violation of certain major principles of international law, and even mor
e so as themselves a basis for
individual and separate claims of international responsibility on the pa
rt of Nigeria (should the Court
conclude that Cameroon, despite the terms of its Reply, has not withdrawn all of its individual and
separate claims).
119.34 However, Nigeria will now, in the main body of this Rejoinder, refer in substance to two
important allegations by Cameroon. Both are wholly without foundation. T
he fact that Cameroon
nevertheless has seen fit to pursue them exemplifies the mistaken approa
ch adopted by Cameroon in
putting forward its claims of Nigerian international responsibility. The
first of these incidents is that
which occurred on 16 May 1981; the second concerns the allegation of Nig
erian incursions into
Cameroon territory at Tipsan.
C. Incident of 16 May 1981
25
119.35 The incident of 16 May 1981 has been dealt with previously by Nig
eria. It is dealt with in
greater detail in the Appendix to this Chapter, 26and only the salient points will be referred to here.
27
119.36 It is the incident for which President Ahidjo of Cameroon, by a l
etter of 16 July 1981, made a
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full apology to President Shagari of Nigeria, and paid compensation for
the loss suffered by the families
of the Nigerian soldiers who had been killed by Cameroon armed forces. I
n addition to the regrets
28
expressed orally by the Cameroon Foreign Minister who went specially to
Nigeria for the purpose,
President Ahidjo three times expressed, in writing in his letter of 16 J
uly, his regrets at this incident. And
29
Cameroon paid compensation. There can be no doubt that Cameroon accepted at the highest level that
responsibility for this affair rested with Cameroon. That Cameroon has s
ought to use this incident as an
example of Nigeria's wrongful actions in incomprehensible.
119.37 That, nevertheless, appears still to be Cameroon's position. It i
s manifestly incorrect. On the facts
of the incident, Nigeria recalls that President Ahidjo's letter of apolo
gy was written in response to a letter
30
from President Shagari. That letter set out Nigeria's account of the facts which had led to the
Cameroonian murder of the Nigerian soldiers on Nigerian territory, which
differed from Cameroon's
31
account as given in President Ahidjo's letter of 23 May 1981. President Ahidjo's reply to President
Shagari's letter in no way contradicted or dissented from President Shag
ari's statement of the facts, save
only that he referred to it as having occurred on the Rio del Rey, where
as, as President Shagari stated
32
(and repeated in his reply of 20 July 1981 to President Ahidjo ), it actually occurred on the Akpa Yafe
River, 33in Nigeria's Cross River State.
119.38 Cameroon's payment of compensation was in response to Nigeria's a
ssertions (not contradicted
by President Ahidjo) that
"The fact of the matter is that Nigerian troops have been murdered and s
eriously wounded
by Cameroonian soldiers on Nigerian territory and Nigeria insists on its
demand of
unqualified apology, full compensation and reparations to the families o
f the victims of
the wanton aggression, and bringing the perpetrators of the dastardly mu
rders to justice."
In these circumstances the payment of compensation by Cameroon is a clea
r acceptance of the
correctness of Nigeria's account of the incident.
119.39 In the face of these admissions by Cameroon, at the highest level
, of responsibility for the
incident and resulting loss of Nigerian life, Cameroon's attempts to cas
t its position in a more favourable
light are of no value.
119.40 The evidence originally invoked by Cameroon in support of its ver
sion of events consisted of an
34 35
Information Note of 23 May 1981, and an AFP despatch of 8 July 1981. The first, having been
prepared before President Ahidjo's admission of responsibility for the i
ncident, is scarcely compelling
evidence; the second, being (once again) merely a press report some 6
or 7 weeks after the event, is
wholly unreliable. New evidence is now put forward by Cameroon in suppor
t of its version of events. It
consists of statements by three members of the armed forces. One is a re
port dated 17 May 1981 by
Captain Sintafeu: but he was not himself involved in the incident, and h
is statement does not indicate
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that he had spoken to any of the armed forces personnel who had been pre
sent at the time. The other two
statements, by CPOs Mahamat and Meka, are dated August 1999: i.e. some 1
8 years after the incident to
which they relate, and therefore of questionable reliability. Thus none
of these three statements can be
regarded as good evidence of the matter in issue.
119.41 Against those questionable statements by Cameroonian military per
sonnel is the statement, in a
formal letter to President Ahidjo, by Nigeria's Head of State, President
Shagari. That statement contains
much circumstantial detail about the incident. It is not usual for Heads
of State to treat letters to a fellow
Head of State as if they were pleadings before a Court, and therefore it
was not to be expected that
President Shagari would have accompanied his letter with all the detaile
d information available to him.
But equally, President Shagari would not have written in the terms he di
d if there had not been available
to him and his officials well-documented information to substantiate his
letter.
119.42 Cameroon seeks to suggest that President Ahidjo's letter of 16 Ju
ly 1981, offering compensation
(and regret for the incident, but Cameroon does not mention this), was
decided upon "extremely wisely ..
36
[as].. a political gesture of appeasement," and was "merely a gesture of appeasement designed to
37
restore a climate of dialogue between the two countries" . This is to turn history on its head.
119.43 Nigeria would first recall what President Shagari said. He assert
ed "most emphatically and
unequivocally ... that the sad event ... did take place on Nigerian terr
itory"; he added that "it was a
deliberate, premeditated and carefully prepared ambush against our patro
l"; it "took place on Akwa yaji
River, about 2km South of Ikang, a Nigerian town"; he added that it was
"stretching credibility too far"
to say, as did Cameroon, "that Nigerian troops in two patrol boats opene
d fire first on an unsuspecting
Cameroonian patrol boat and yet killed not a single Cameroonian soldier"
while at the same time five
Nigerian soldiers were killed and three others seriously wounded.
119.44 The crucial aspect of President Shagari's statement is that the i
ncident was "a deliberate,
premeditated and carefully planned ambush against our patrol". President
Shagari did not at the time go
into further details, but Cameroon's distortion of these events makes it
necessary for Nigeria to reveal the
true facts behind President Shagari's statement. The facts show that Cam
eroon's conduct was aggressive,
reckless and irresponsible, and provided yet another illustration of Cam
eroon's repeated attempts to
advance its presence into Nigerian territory (see paragraph 16.5 above)
.
119.45 Information available to Nigeria at the time (and set out in det
ail in the Appendix, paragraphs 42-
43) showed that Cameroon's conduct involved (a) a major build-up of i
ts armed forces in the region, (b)
a carefully laid ambush of a Nigerian patrol, (c) with the hope of pro
voking Nigeria into starting a
major, full-scale armed response, and (d) thereby enabling Cameroon to
make political capital by
painting Nigeria as an aggressor.
119.46 It was President Shagari whose conduct prevented this incident fr
om developing from a limited
ambush into the major armed confrontation which Cameroon had been trying
to provoke; it was
President Shagari who was able to quell the Nigerian people's justified
outrage at this incident, which as
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he said, "shook the entire Nigerian nation morally and politically" (le
tter of 25 May 1981); and it was
President Ahidjo who, after taking time for consideration, found it advi
sable in the circumstances to
apologise and pay compensation and to press the matter no further.
D. Tipsan
119.47 The second allegation which Nigeria wishes to examine in some det
ail in this Rejoinder is
Cameroon's complaint about the alleged occupation of Tipsan by Nigeria. 38 This complaint hinges on
the location of Tipsan and its relation to the frontier in that area. As
Nigeria has conclusively shown
(above, paragraphs 7.169 et seq.), the frontier in that region, as delimited in Articles 40-41 of the
Thomson-Marchand Declaration, runs along the River Tipsan, and the villa
ge of Tipsan together with
the Nigerian Immigration Post near that village are well on the Nigerian
side of that River. Moreover,
Cameroon not only acknowledges that the boundary in this area is delimit
ed by the Thomson-Marchand
Declaration 39 but now admits that the Immigration Post is "undoubtedly situated in Ni
gerian territory". 40
Nevertheless, Cameroon, in its Chapter dealing with matters of internati
onal responsibility puts forward
different, and conflicting, arguments.
119.48 Thus Cameroon seeks to show that up to 1994 Nigeria was present a
t Tipsan only by virtue of
Cameroonian consent to a presence in Cameroonian territory. This presenc
e is said to result from a
request, made apparently in the late 1970s, to the (Cameroonian) Lamid
o of Kontcha by the local
Nigerian inhabitants of Ethnie Moumie to move closer to Kontcha, and the
y are said to have been
followed, in 1984, by the movement of the Nigerian Immigration Post (al
legedly formerly at Mayo-
41
Bagboua - "until that time, at the correct boundary") to Tipsan. Nigeria must observe, however, that
Cameroon makes no attempt to justify this assertion that the boundary wa
s at Mayo-Bagboua: that
location is not mentioned in the Thomson-Marchand Declaration, and as th
e line of the boundary is
inconsistent with that Declaration's clear stipulation that the boundary
follows the River Tipsan.
42
119.49 Cameroon seeks to support this account by another report, dated 6
July 1993, which recognises
that at that date there was no dispute between Cameroon and Nigeria with
respect to Tipsan. This report,
indeed, accepts that "the boundary [is] currently situated along the Tip
san watercourse", although it
continues that it "should actually be well beyond this point on Nigerian
land at the Mayo-Djigawal, a
brook four kilometres from Kontcha" - a frontier which is said to be "ma
rked by stone piles placed by
the French and the English around the years 1939-1945 on both sides of t
he brook over an unspecified
length". Again, Cameroon does not explain why the Maio-Djigawal should b
e the boundary when it is
nowhere mentioned in the Thomson-Marchand Declaration and (at 4 kms fro
m Kontcha) is inconsistent
with that Declaration which states that the boundary follows the River T
ipsan (which is about 3 kms
from Kontcha).
119.50 A further report, dated 20 February 1995, 43largely repeats the story set out in the previous
reports. But this report says that the result of the 1961 referendum "su
bsequently caused a further
delimitation of the boundary which is today situated 9 km from Kontcha,
that is to say, 6 km from the
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river Tipsan, which itself is 3 km from Kontcha".
119.51 Cameroon nowhere explains what this "further delimitation" consis
ted of, or indeed why it was
needed at all given the clear terms of the Thomson-Marchand Declaration;
nor does Cameroon explain
why this new boundary should prevail over the terms of that Declaration;
nor why the boundary is, in
this report, said to be 9 kms from Kontcha when the previously mentioned
report put it at only 4 kms
from Kontcha (while, of course, the River Tipsan, which was established
by the Thomson-Marchand
Declaration as the boundary, is about 3 kms from Kontcha).
119.52 This report of 20 February 1995 also states that the original Nig
erian request to move closer to
Kontcha and the Cameroonian consent to that request were related to the
Nigerians being allowed "to
settle on the banks of the Tipsan watercourse". But (the Nigerian) Tip
san village, and the (Nigerian)
Immigration Post at Tipsan are not on the banks of the River Tipsan, but
nearly a kilometre to the west
of the river. Although Cameroon alleges that Nigeria has confused the lo
cation of the Immigration Post
44 45
with the location of the village of Tipsan, it is, as explained elsewhere in this Rejoinder, Cameroon
which is doing precisely that in introducing, for the first time, the no
tion that there is some second
settlement called Tipsan "located some 3 kilometres from ... Kontcha", t
hat it is this "other" Tipsan
which is on the Cameroonian side of the boundary as delimited by Thomson
-Marchand, and that
"Nigeria is seeking to establish an immigration post in this locality in
addition to the post shown on Map
No. 73 [in Nigeria's Counter-Memorial]".
119.53 This is pure invention: and for the record Nigeria formally state
s that it has only one Immigration
Post at Tipsan, that that Post is at the location indicated on Map No. 7
3 annexed to its Counter-
Memorial (i.e. about 1 km to the west of the River Tipsan), and that it has no
t built, and is not building
or planning to build, a second Immigration Post any closer to Kontcha th
an the existing Post at Tipsan.
119.54 For all the above reasons, Nigeria reaffirms its conclusion that
Cameroon's allegations regarding
the presence of a Nigerian Immigration Post at Tipsan are wholly without
merit: the relevant
international instrument, which Cameroon accepts as governing the delimi
tation of the boundary in this
area, clearly and expressly establishes the River Tipsan as the boundary
, and the Nigerian Immigration
Post and the Nigerian village of Tipsan itself are well on the Nigerian
side of this boundary.
119.55 Cameroon's treatment of these two so-called incidents demonstrate
s in the clearest possible way
the inadequacy of Cameroon's approach to the serious matter of alleging
that Nigeria has incurred
international responsibility. Nigeria's Conclusions on State Responsibil
ity are set out in full in Chapter
17, below.
__________
1 RC, para. 11.89.
2 I.C.J. Reports 1998, p. 319, para 101, quoted at para. 14.17(4) abov
e.
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3 RC, para. 11.11, referring to the totality of the arguments set out at
NC-M, pp. 651-797, which deal with all the
incidents alleged by Cameroon to have occurred in Bakassi and the Lake C
had area, and along the land boundary
in between: "lorsqu'il tente de faire croire que le Cameroun entend fair
e reconnaître par la Cour sa responsabilité
pour chacun des incidents qu'il invoque pris isolément."
4 RC, para. 11.12: "Que la responsabilité de la République fédé
ral du Nigeria est engageée par les faits
internationalement illicites exposés ci-dessus et précisés dans
le corps du présent Mémoire."
5 "utilisant la force."
"en occupant militairement."
"incursions répétées, tant civiles que militaires."
6 MC, para. 6.05: "constituent les faits internationalement illicites im
putables au Nigeria et qui sont à l'origine de
la responsabilité internationale de ce pays à l'egard du Cameroun.
"
7 The text of MC, para. 6.170 refers to "Section 5.1", but this is obvio
usly a typographical error, and it is clear
from the context that Section 6.2 was intended
8 MC, para. 6.169-6.170: "La responsabilité du Nigéria par ces fai
ts internationalement illicites": "chacun des
faits décrits dans la section [6.2] ci-dessus requiert, en principe,
une analyse individuelle."
9 RC, paras. 11.13-11.17.
10 RC, para. 11.16: "les incidents don't le Cameroun a fait état jusq
uà présent, et ceux qu'l est en droit d'invoquer
à l'avenir ... doivent être considérés pour ce qu'ils sont:
des moyens qui viennent à l'appui des conclusions
figurant à la fin des différentes pièces de procédure écr
ite et qui seront finalisées ... à l'issue du dernier exposé qu
i
sera présenté en son nom. "
11 RC, para. 11.168: "L'objet de la requête camerounaise en responsab
ilité est l'invasion et l'occupation d'une
partie de son territoire par les autorités nigérianes. Les inciden
ts spécifiques qui se sont succédé dupuis les années
1980 ne sont que des éléments qui attestent et illustrent cette oc
cupation. Ils ne fournissent donc pas l'objet
essentiel de la réclamation.".
12 RC, paragraph 11.25: "En outre, la République du Cameroun tient à
redire, de la maniére la plus formelle et
afin de ne laisser subsister aucune ambiguïté, qu'à l'exception
des occupations massives de parties importantes de
son territoire au nord-ouest (région du lac Tchad) et au sud-ouest
(presqu'île de Bakassi), ce sont moins les
incidents en eux-mêmes et pris isolément qui important que l'ensem
ble qu'ils constituent et qui établit, au-delà de
tout, que le Nigéria doit étre tenu pour responsible de violations
graves, fréquentes et généralisées des régles et
des principes fondamentaux énoncés ci-dessus ... et de violations
répétes et délibérées de la frontiére entre les
deux pays."
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13 RC, paragraph 11.30: [le] propos [de Cameroun], en présentant ces
faits, n'est pas de demander à la Cour de
constater l'engagement de la responsabilité du défendeur à prop
os de chacun d'eux. Son but est de démontrer que
le Nigéria a violé et viole encore les droits du Cameroun fondé
s sur les principes les plus fondamentaux du droit
international public, et notamment les principes suivants: non-recours à
la force; intégrité territoriale;
souveraineté territoriale; non-intervention dans les affaires inté
rieures. "
14 RC, para. 11.168: "L'objet de la reqête camerounaise en responsabi
lité est l'invasion et l'occupation d'une
partie de son territoire par les autorités nigérianes. Les inciden
ts spécifiques qui se sont succédé depuis les années
1980 ne sont que des éléments qui attestent et illustrent cette oc
cupation. Ils ne fournissent donc pas l'objet
essentiel de la réclamation."
15 RC, para. 11.170: "Il ne s'agit donc pas de fomuler une multitude de
réclamations en responsabilité qui
traiteraient séparéde chaque acte d'occupation due Nigéria."
16 RC, para. 11.171: "Dans ce contexte, les incidents dont il sera quest
ion ci-dessous ne doivent pas être
considerérés comme des bases autonomes de mise en cause de la resp
onsabilité. Il s'agit plutôt d'éléments
attestant de l'occupation continue par le Nigéria d'une partie du ter
ritoire camerounais. "
17 RC, para. 12.29: "Comme le Nigéria la rappelle lui même au para
graphs 25.40 (CMN, vol. III, pp. 814-815), il
apparaît clairement, à la lecture de la requête additionnelle d
u Cameroun, que les questions de responsabilité de
l'Etat ne portaient pas sur le secteur compris entre le nord de Bakassi
et le sud du lac Tchad. Le Cameroun n'avait
invoqué les nombreux incidents survenus dans ce secteur de la frontiè
re que pour prouver, à titre principal, que le
différend qui oppose les deux pays s'étend également à cette
partie de la frontière terrestre. Il était prévisible
qu'un segment aussi long d'une frontière, dont le Cameroun convient a
vec le Nigéria (CMN, vol. III, p.815, par
25.41) qu'elle est en partie non démarquée, ne pouvait être à
l'abri d'incidents."
18 RC, para. 11.168: "l'essentiel" : "caractère particulier de gravit
é": "en eux mêmes des faits internationalement
illicites qui engagent la responsabilité du Nigéria."
19 RC, para. 11.17.
20 "Qu'en utilisant la force contre la République du Cameroun, et, en
particulier, en occupant militairement des
parcelles du territoire camerounais dans la zone du lac Tchad et la pé
ninsule camerounaise de Bakassi, en
procédant à des incursions répétées, tant civiles que mil
itaires, tout le long de la frontière entre les deux pays, la
République fédérale du Nigeria a violé et viole ses obligati
ons en vertu du droit international conventionnel et
coutumier."
"Que la responsabilité de la République fédérale du Nigér
ia est engagée pas les faits
internationalement illicites exposés ci-dessus et précisés dans
le mémoire de la République du
Cameroun et dans la présente réplique."
21 RC, para. 11.17: "principes fondamentaux du droit international"
22 RC, para. 11.25: "l'ensemble qu'ils constituent"
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23 NC-M paras. 24.60 et seq.
24 RC, paras. 11.34 et seq.
25 NPO, Introduction, paras. 34-39, NC-M paras. 2.20-2.21 and 24.65-24.6
7; Cameroon's response is at RC,
paras. 11.58-11.76.
26 At paras. 29-45.
27 Annex NC-M 345.
28 NC-M para. 24.66.
29 A copy of the cheque paid by Cameroon is at Annex NC-M 63.
30 Annex NC-M 344.
31 Annex NC-M 343.
32 Annex NC-M 346.
33 President Shagari's letter referred to the "Akwa yaji River": it is t
he same river, as he recognised in his reply to
President Ahidjo's letter where he referred to the "Akwa Yafe River".
34 Annex MC 260.
35 Annex MC 262.
36 RC, para. 11.70: "avec beaucoup de sagesse, de faire un geste politiq
ue d'apaisement".
37 RC, paragraph 11.75: "n'a été qu'un geste d'apaisement, destiné
à restaurer un climat de dialogue entre les
deux pays."
38 See NC-M paras. 24.260-24.267; RC paras. 11.218-11.238.
39 RC para. 4.95.
40 RC para. 4.99: and see above, para. 7.177: "est indiscutablement situ
é en territoire nigérian."
41 RC para. 11.224: this quotes from a report by a local official dated,
it may be noted, after the commencement
of the present proceedings.
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"jusqu'alors, à la vraie limite. "
42 RC para. 11.225: "... actuellement située au niveau du cours d'eau
Tipsane ... la frontière réelle se trouverait
bien au-delà en terre nigérianne au niveau .... du Mayo-Djigawal,
ruisseau qui se situe à quatre kilomètres de
Kontcha. ... matérialisée par des amas de pierre placés par les
Français et Anglais vers les années 1939-1945, de
part et d'autre du ruisseau sur une longueur non déterminée."
43 RC para. 11.226: (This too was prepared after the institution of the
present proceedings, although referring to
events many years before):- "ce qui a alors provoqué une nouvelle dé
limitation de la frontière qui se trouve
aujourd'hui située à 09 km de KONTCHA, soit 06 km de la rivière
TIPSAN, coulant elle-même à 03 km de
KONTCHA."
44 See RC para. 4.99.
45 See above, para. 7.178.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 16
APPENDIX
Alleged Incidents
A. Introduction
1. In its Counter-Memorial Nigeria sought to introduce some order into Cameroon's confused and
unspecific presentation of the various incidents on which it relied by i
temising them by reference to the
order in which they appeared in the successive documents in which Camero
on referred to them
(Applications, Memorial, Observations on Nigeria's Preliminary Objections
). In doing so Nigeria gave
each incident a number, from 1 to 82. In its Reply Cameroon has followed a different approach to these
allegations, treating a selection only of them by reference to their gen
eral location (Bakassi, Lake Chad,
and the land boundary in between), and moreover treating those in the B
akassi area in approximately
chronological order while treating those occurring elsewhere more haphaz
ardly.
2. The numbered incidents referred to by Nigeria in its Counter-Memorial, with an indication against
each of where (if at all) in Cameroon's Reply its further response is to be found, are:
No. 1 (NC-M paras. 24.65-24.67) RC paras. 11.58-11.76
Nos. 2-7 (NC-M paras. 24.68-24.96) RC paras. 11.136-11.140
No. 8 (NC-M paras. 24.97-24.102) RC paras. 11.34-11.39
No. 9 (NC-M paras. 24.103-24.108) RC paras. 11.77-11.80
No. 10 (NC-M paras. 24.109-24.117) RC paras. 11.81-11.100
No. 11 (NC-M paras. 24.118-24.122) no response
No. 12 (NC-M paras. 24.123-24.127) RC para. 11.118
No. 13 (NC-M paras. 24.128-24.133) RC paras. 11.48-11.57
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Nos. 14-21 (NC-M paras. 24.134-24.179) RC paras. 11.101-11.121
No. 22 (NC-M paras. 24.180-24.193) RC paras. 11.40-11.47
No. 23 (NC-M paras. 24.194-24.223) RC paras. 11.122-11.135
Nos. 24-27 (NC-M paras. 24.224-24.246) no response
No. 28 (NC-M paras. 24.247-24.256) RC paras. 11.197-11.200
No. 29 (NC-M paras. 24.257-24.259) no response
No. 30 (NC-M paras. 24.260-24.267) RC paras. 11.218-11.238
No. 31 (NC-M paras. 24.268-24.272) RC paras. 11.239-11.242
No. 32 (NC-M paras. 24.273-24.282) RC paras. 11.243-11.244
Nos. 33-35 (NC-M paras. 24.283-24.310) no response
No. 36 (NC-M paras. 24.314-24.319) RC paras. 11.186-11.188
No. 37 (NC-M paras. 24.320-24.325) no response
No. 38 (NC-M paras. 24.326-24.332) RC paras. 11.179, 11.191-11.192.
Nos. 39-74 (NC-M paras. 24.333-24-24.534) no response
No. 75 (NC-M paras. 24.535 - 24.538) RC paras. 11.115-11.118
No 76-82 (NC-M paras. 24.539 - 24.564) no response 1
Thus of the 82 incidents originally raised by Cameroon and dealt with by
Nigeria in its Counter-
Memorial, Cameroon in no fewer than 53 cases has made no attempt to comment furt
her on Nigeria's
account of the incident.
3. In addition to Cameroon's withdrawal of its claims of international r
esponsibility for individual
incidents taken on their own (see paragraph 16.11 et seq.), Cameroon also does not even appear to
regard these 53 alleged incidents as illustrating Nigeria's internationa
l responsibility. Cameroon prefaces
its consideration of those incidents which it does deal with by saying t
hat "Cameroon will therefore deal
below with the facts which at this stage it considers to be such as to i
llustrate Nigeria's international
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responsibility ....", thus indicating that it does not regard the 53 omitted incidents as fal
ling within that
description.
4. In this Appendix Nigeria will first deal with incidents Nos. 1-82 und
er three headings, covering
Bakassi, Lake Chad and the Land Boundary. Under each heading Nigeria wil
l deal with the incidents in
approximately chronological order (so far as Cameroon's treatment of th
em allows), identifying as
appropriate the relevant passages (if any) in Cameroon's Reply which deal with the same incident.
Nigeria will then deal with incidents mentioned for the first time in th
e Reply (which it will number 83
onwards).
5. In dealing with incidents said to have occurred in the Bakassi and La
ke Chad areas, Nigeria repeats 3
that, despite the fact that sovereignty over the relevant areas vests in
Nigeria and not in Cameroon and
that therefore all those parts of Cameroon's case which assume the contr
ary are without foundation,
"Nigeria will nevertheless, and without prejudice to its position as to
its sovereignty over
the areas in question, respond to each incident which Cameroon alleges o
ccurred in order
to explain them and/or to show that the details given by Cameroon are in
sufficient to
establish any international responsibility on the part of Nigeria."
- to which must now be added "or to serve as grounds or support for wide
r allegations of international
responsibility on the part of Nigeria".
B. Incidents dealt with in Earlier Pleadings
6. In the following paragraphs the headings and numbers of the incidents
are the headings and numbers
given to them in Nigeria's Counter-Memorial.
BAKASSI
Incident referred to in an AFP dispatch of 1 July 1970 (No. 8)
7. This incident concerns alleged Nigerian inspections of Cameroonian fi
shing vessels at sea off
Bakassi. It thus forms no part of any alleged "invasion or occupation" o
f Bakassi, and is among the
incidents for which Cameroon has withdrawn any claim that, as separate a
nd individual incidents taken
on their own, they give rise to international responsibility on the part
of Nigeria; rather it is an incident
which Cameroon now seeks to treat as evidence in support of some broader
claim of Nigerian
4
responsibility .
8. This incident was nearly 24 years old when Cameroon instituted procee
dings in the present case.
9. During all that time there has been no Cameroonian protest: Nigeria h
as no trace of any protest having
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been received, and Cameroon has not put any protest in evidence.
10. Nigeria welcomes the further documentary evidence now belatedly subm
itted in substantiation of
this incident. Nigeria also welcomes Cameroon's correction of its earlie
r omission to quote fully the text
it was relying on (see NC-M paragraph 24.100): Cameroon now accepts th
at the "inspections really
could have taken place on the high seas", 5 and this is indeed borne out by the report of 27 May 1970 by
the Commissioners to the Fishing Industry, who state that the inspection
s were "carried out when our
trawlers were either in Cameroon waters, or in international waters..." 6
11. The Commissioners' report refers to only two specific incidents (th
e third matter - of which no
details are given and which cannot therefore even be called an "incident
" - involved the "Kergroise", but
the Sea Report from this vessel is not with Annex RC 21). They occurred
"in the Calabar
River" ("Catalan"), and "in front of the bay of Calabar" ("Rochella")
.
12. These locations, off the west coast of Bakassi, could only be regarded as having occurred in
Cameroonian waters on the hypothesis that Bakassi belongs to Cameroon: b
ut it does not - it belongs to
Nigeria, and the waters are Nigerian waters. But even if Bakassi were he
ld to be Cameroonian it is
noteworthy that although the Sea Reports attached to the Commissioners'
report appear to give
descriptions from which the locations of the incidents might be deduced,
they are in fact wholly unclear
since they depend on the locations of buoys which cannot easily be ident
ified, particularly after this
length of time (the incidents are said to have occurred as long ago as
1970). Given that Cameroon
acknowledges that the Calabar River and Estuary are predominantly (if n
ot wholly) Nigerian waters,
there can be no certainty that such stale incidents occurred elsewhere t
han in Nigerian waters.
13. Moreover, the Commissioners' report states that the inspections and
boardings had been conducted in
an irregular manner, with assaults, death threats, and theft of property
. It is noteworthy that neither of the
two Sea Reports annexed to the Commissioners' report mention any such 'i
rregularities'. They can
therefore only be regarded as unsubstantiated and therefore irrelevant a
ssertions.
14. Cameroon adds to its comments on the incident of 1 July 1970 the fur
ther assertion of other
7
examples of Nigerian violation of Cameroon waters bordering the Bakassi
Peninsula. To the extent that
that assertion is unsubstantiated it is not evidence of anything other t
han Cameroon's practice of making
unsubstantiated assertions. Cameroon seeks to substantiate its broad sta
tement by mentioning only a
single alleged incident, said to have occurred on 26 June 1964. This new
incident is dealt with below,
paragraphs 112-113.
Incident of 21 January 1981 (No. 22)
15. This alleged incident is said to involve the abduction and illegal c
onfinement of Mr Simon Esabe,
the district chief of Idabato, and members of his delegation, at "Kombo
Abedimo". On the basis of the
evidence submitted by Cameroon in its Memorial, Nigeria, in its Counter-Memorial, noted a number of
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defects in that evidence and concluded that "This alleged incident is th
us stale, and supported only by
8
contradictory and inadequate evidence."
16. In its Reply Cameroon puts in evidence a number of new documents, principally a repo
rt by Mr
9 10 11
Esabe, a medical report dated 1 February 1981, a report by the Cameroonian Consul in Calabar, a
12
letter from a Nigerian Commissioner of Police (Mr Akpabio), and a Report drawn up by the Secretary-
General of Cameroon's Ministry of Foreign Affairs. 13
(1) As regards all these new documents, there is first of all a questi
on why, if they existed,
Cameroon did not make them available in its Memorial.
(2) Moreover, Cameroon attributes 14to Nigeria the statement that "it doubts the veracity
of these facts", citing as the source NC-M paragraph 24.187: first, howe
ver, Nigeria notes
that nowhere in that paragraph did it use that language, instead referri
ng there (and
elsewhere) to contradictions and inadequacies in Cameroon's own various
versions of the
alleged facts, and second, of course, Nigeria was only commenting on the
'facts' as they
were put forward by Cameroon in its Memorial and could not have taken into account any
new reports which Cameroon has only in its Reply seen fit to produce.
(3) As regards the fourth document, Cameroon prefaces its introduction
of that document
with the remark "it is to be regretted that [Nigeria] has not based its
argument on the
15
searches it could have carried out in its own archives": Nigeria has to note that the
burden rests with Cameroon to establish the facts on which it relies, an
d that it was the
inadequacy of the facts as originally presented by Cameroon, and their s
taleness, which
made and continues to make it difficult for Nigeria to identify the inci
dent and so research
into possibly relevant Nigerian records.
17. In the light of the new evidence so belatedly put forward by Cameroo
n, Nigeria has the following
comments:
(1) nothing in those new documents can remedy the essential staleness
of any claim based
16
on the alleged incident, which is said to have occurred as long ago as 1
981;
(2) nothing in those documents shows that Cameroon made any written pr
otest to Nigeria
about the incident (although the fifth document refers to oral represen
tations having been
17
made);
(3) that fifth document is undated: even the cover sheet in Cameroon's
Annexes reads in
part, for Annex RC 69, "1981 (?) sans date";
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(4) it is noteworthy that although the medical report of 1 February 19
81 refers to various
indications of physical maltreatment by those said to have been arrested
(including Mr
Esabe), no mention of any maltreatment was made either by Mr Esabe 19 or by the
20
Cameroonian Consul; on the other hand, while Mr Esabe reported that during the
surrender to the Nigerian forces "one of our army men, Ngwa Bidyinsi was
seriously
21
wounded on the head", no injury of that kind suffered by a person of that name is
included in the medical report;
(5) the incident, even on Cameroon's account, reached a satisfactory o
utcome with the
release of the Cameroonians said to have been arrested;
(6) Cameroon has in any event withdrawn any claim as to Nigeria's inte
rnational
responsibility in relation to this incident taken separately and on its
own (above, paragraph
16.11 et seq.)
Incident referred to in a Note dated 16 April 1981 (No. 13)
18. This incident is said to involve the "presence of Nigerian troops in
[the district of] Idabato" in
23
1981.
19. Cameroon treats this incident (with others) as establishing violat
ions by Nigeria of certain broader
international obligations relating to Cameroon's territorial integrity,
non-use of force, territorial
24
sovereignty and non-intervention. It appears therefore that the incidents mentioned, taken on their
own, are not the subject of any Cameroonian claim of international respo
nsibility on the part of Nigeria.
20. Cameroon's initial account of the alleged incident, which was referr
ed to in an internal note dated 16
April 1981, gave rise to a number of uncertainties. These were detailed
in Nigeria's Counter-
Memorial. 25 Moreover, Nigeria there noted that Cameroon had not protested against t
he incident, and
that in any event, that incident having occurred as long ago as 1981, an
y claim in respect of it was barred
by lapse of time.26
21. Cameroon still relies heavily on the internal note of 16 April 1981.
Nigeria drew attention to the
inadequacies of that note as adequate evidence of any action by Nigerian
soldiers in its Counter-
Memorial, in particular as regards provenance and its identification of the peop
le concerned as Nigerian
soldiers.27 Those doubts remain: Cameroon still refrains from saying who wrote the
note and on what
sources the contents of the note were based, and Cameroon offers no expl
anation for the reference in the
note to the persons involved wearing camouflage trousers of the type wor
n by the Cameroon army, or as
being "pirates", nor any explanation of why they came to disembark from
two civilian vessels.
Cameroon asks merely what other status these "intruders" could have had
if not Nigerian. Such a
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rhetorical question falls far short of the standard of evidence required
for the purpose of attributing
international responsibility - as does the internal note of 16 April 198
1, given its inconsistencies and
other deficiencies.
22. In apparent recognition of the weakness of its argument based solely
on this one ambiguous (to say
the least) incident, Cameroon seeks to show that there had been other s
imilar incidents on 21 January
28 29 30 31
1981, on 15 February 1981, in (or before) April 1981, and on 16 May 1981. These other
incidents of alleged Nigerian military activity in the area are said to
be "examples" of incursions which
had occurred "throughout 1981, in Jabane [Abana], in the district of Ida
bato and, more generally, in the
32
Bakassi peninsula".
23. Nigeria must first observe that "examples" are, at best, only eviden
ce of themselves. Even if
examples are adequately established, they do not legally serve as eviden
ce of alleged other incidents;
and if they are not adequately established (as with those now cited by
Cameroon), then their lack of
relevance as evidence of yet other incidents is an a fortiori case.
24. The incident of 21 January 1981 is discussed elsewhere, in response
to Cameroon's treatment of it as
a separate incident: see above, paragraphs 15-17.
25. The incident of 15 February 1981 is now raised by Cameroon for the f
irst time, as is the allegation
contained in RC paragraph 11.55. They are dealt with in paragraphs 114-1
19 below.
26. As regards the last 'example' given by Cameroon, involving the incid
ent of 16 May 1981, Nigeria
has fully demonstrated the fanciful nature of Cameroon's allegations tha
t this incident gives rise to
international responsibility on the part of Nigeria (see also below, pa
ragraphs 29-45). It will be recalled
that this is an incident for which Cameroon expressed its regrets, and p
aid compensation. Rather than
being an 'example' of Nigerian incursions into Cameroonian territory, it
is the opposite - a Cameroonian
attack on Nigerian forces, in Nigerian territory.
27. All the incidents put forward by Cameroon relate, of course, to Nige
rian activities (or alleged
activities) in the Bakassi Peninsula. Nigeria must repeat that where th
ere have been activities by
Nigerian civil or military authorities in or around Bakassi, they have b
een the activities of the authorities
of the State which has sovereignty over that area. They have been an exe
rcise of that sovereignty, often -
especially in more recent years - in the face of Cameroonian attempts at
harassment of the Nigerian
population and authorities in the Bakassi Peninsula despite the long-est
ablished exercise of authority
there by Nigeria.
28. For the foregoing reasons, Nigeria rejects Cameroon's claims that th
e incident originally referred to
in MC, paragraph 6.56, as well as the four other incidents now adduced b
y Cameroon in this context,
give rise to any international responsibility on the part of Nigeria eit
her separately and individually when
taken on their own (in so far as such separate claims of responsibility
have not been withdrawn by
Cameroon), or provide evidence in support of alleged Nigerian responsib
ility for breach of certain
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broader international obligations.
Incident of 16 May 1981 (No. 1)
29. This incident is that for which President Ahidjo of Cameroon, by a l
etter of 16 July 1981 (at Annex
NC-M 345), made a full apology to President Shagari of Nigeria, and pai
d compensation for the loss
suffered by the families of the Nigerian soldiers who had been killed by
Cameroon armed forces. In
addition to the regrets expressed orally by the Cameroon Foreign Ministe
r who went specially to Nigeria
33
for the purpose, President Ahidjo three times expressed, in writing in his letter of 16
July, his regrets at
this incident. And Cameroon paid compensation: a copy of the cheque paid
by Cameroon as
compensation is at Annex NC-M 63. There can be no doubt that Cameroon ac
cepted at the highest level
that responsibility for this affair rested with Cameroon. That Cameroon
has sought to use this incident as
an example of Nigeria's wrongful actions is incomprehensible.
30. That, nevertheless, appears still to be Cameroon's position. It is m
anifestly incorrect. On the facts of
the incident, Nigeria recalls that President Ahidjo's letter of apology
was written in response to a letter
from President Shagari. 34 That letter set out Nigeria's account of the facts which had led to the
Cameroonian murder of the Nigerian soldiers on Nigerian territory, which
differed from Cameroon's
account as given in President Ahidjo's letter of 23 May 1981. 35 President Ahidjo's reply to President
Shagari's letter in no way contradicted or dissented from President Shag
ari's statement of the facts, save
only that he referred to it as having occurred on the Rio del Rey, where
as, as President Shagari stated
(and repeated in his reply of 20 July 1981 to President Ahidjo), 36 it actually occurred on the Akpa Yafe
37
River, in Nigeria's Cross River State. It may be noted that while President Sh
agari's response to
President Ahidjo's first letter of 23 May followed only 2 days later, an
d clearly shows full awareness of
the facts of the incident, President Ahidjo took some 7 weeks to reply t
o President Shagari's letter of 25
May, during which period he would have had ample time in which to check
the circumstances.
31. Cameroon's payment of compensation was in response to Nigeria's asse
rtions (not contradicted by
President Ahidjo, even after 7 weeks' study) that
"The fact of the matter is that Nigerian troops have been murdered and s
eriously wounded
by Cameroonian soldiers on Nigerian territory and Nigeria insists on its
demand of
unqualified apology, full compensation and reparations to the families o
f the victims of
the wanton aggression, and bringing the perpetrators of the dastardly mu
rders to justice." 38
In these circumstances the payment of compensation by Cameroon is a clea
r acceptance of the
correctness of Nigeria's account of the incident.
32. In the face of these admissions by Cameroon, at the highest level, o
f responsibility for the incident
and resulting loss of Nigerian life, Cameroon's attempts to cast its pos
ition in a more favourable light are
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of no value.
33. Cameroon maintains that the incident took place in the Rio del Rey,
and refers to three statements
now attached to its Reply (as Annexes RC 63 and RC 241). It prefaces its citation of these docu
ments by
a statement suggesting they are "facts" and not (as it suggests Nigeria
's version is) "mere assertions". 39
This contrast is misplaced: the 'facts' are the events which actually to
ok place, and the various statements
about them are not in themselves the facts of the incident but at best a
re evidence of those facts.
34. The evidence originally invoked by Cameroon in support of its versio
n of events consisted of an
Information Note of 23 May 1981, 40and an AFP despatch of 8 July 1981. 41 The first, having been
prepared before President Ahidjo's admission of responsibility for the i
ncident, is scarcely compelling
evidence; the second, being (once again) merely a press report some 6
or 7 weeks after the event, is
wholly unreliable. The new documents now put forward by Cameroon as evid
ence of its version of
events, and in particular that they took place in the Rio del Rey, consi
st of statements by three members
of the armed forces. One is a report dated 17 May 1981 by Captain Sintaf
eu: it is to be noted that he was
not himself involved in the incident, and his statement does not indicat
e that he had spoken to any of the
armed forces personnel who had been present at the time. The other two s
tatements, by CPOs Mahamat
and Meka, are dated August 1999: they offer an apparently impressive det
ailed account of the incident -
until it is noted that this very detailed record of events was allegedly
recalled 18 years after the incident
to which the statements relate, and must therefore be of questionable re
liability. None of these three
statements can be regarded as good evidence of the matter in issue.
35. Nigeria also draws attention to a number of discrepancies in Cameroo
n's version of events which
emerge from these accounts.
(1) Although Cameroon asserts that the incident, which was by no means
insignificant,
occurred in the Rio del Rey, and close to a fishery there and to a dredg
ing company
installation, i.e. not in some isolated location, it appears from Captai
n Sintafeu's statement
that the local District Chief and military unit were totally unaware of
the confrontation
more than 24 hours after it is alleged to have occurred (see Annex RC 6
3, at p. 634);
42
(2) Captain Sintafeu suggests that the Cameroonian soldiers began their journey from
Lobe, while CPOs Mahamat and Meka 43indicate that they had started from Idabato;
(3) Captain Sintafeu says that the Cameroon soldiers were merely trave
lling in order to
charge certain batteries, and does not mention that, as the 2 CPOs asser
t, they were
carrying out military surveillance;
(4) Captain Sintafeu says that the batteries were left to be charged a
t Bos et Kalis, while
the two CPOs says they were left at Elf Serepca;
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(5) Captain Sintafeu puts the timing of the incident at some time afte
r 9.00 a.m., while the
CPOs have it starting at 6.30 a.m.
(6) Captain Sintafeu and the two CPOs give differing accounts of the c
ircumstances in
which shots were fired, how many, by whom and in what order, and at what
(as to which
see also Annex MC 260, suggesting that they were fired at the motor of t
he Cameroonian
vessel); and
(7) Captain Sintafeu's statement makes no mention of any Cameroonian c
asualties (surely
important for a contemporaneous report), while the statements by the tw
o CPOs do.
36. Against those questionable statements by Cameroonian military person
nel is the statement, in a
formal letter to President Ahidjo, by Nigeria's Head of State, President
Shagari. That statement contains
much circumstantial detail about the incident. It is not usual for Heads
of State to treat letters to a fellow
Head of State as if they were pleadings before a Court, and therefore it
was not to be expected that
President Shagari would have accompanied his letter with all the detaile
d information available to him.
But equally, President Shagari would not have written in the terms he di
d if there had not been available
to him and his officials well-documented information to substantiate his
letter. Nigeria will refer to this
information in a moment.
37. But first Nigeria will just observe that disagreement about whether
the incident took place in the
Akwa Yafe River rather than the Rio del Rey, which seems at present to b
e the major point with which
Cameroon takes issue in its account of the circumstances of this inciden
t, is perhaps less than crucial.
Even if it were the fact that Nigerian armed personnel were patrolling i
n waters of the Rio del Rey that
would not make Nigeria's presence there unlawful, or the presence there
of Cameroon's forces lawful.
44
For the reasons fully explained elsewhere, Nigeria regards its boundary with Cameroon as running up
the Rio del Rey, so that the locations referred to, even in Cameroon's v
ersion of events, are in Nigerian
territory: it would thus be the Cameroonians who were wrongly on Nigeria
n territory, and the Nigerians
who were lawfully there.
38. Cameroon makes the further comment that Nigeria rejected Cameroon's
proposal that there should
be a Joint Commission of Enquiry into the incident, and seeks to draw th
e conclusion that this could
45
only have been because the Commission of Enquiry would have confirmed Ca
meroon's position.
Cameroon overlooks the fact that in his reply of 20 July 1981 46 to President Ahidjo's letter, President
Shagari made a more far-reaching proposal, for the establishment of an A
rbitration Panel composed of
members from other countries ("countries acceptable to both of us") wh
ich "will look into our different
positions concerning the boundaries". Cameroon did not see fit to respon
d to that proposal.
39. Cameroon seeks to suggest that President Ahidjo's letter of 16 July
1981, offering compensation
(and regret for the incident, but Cameroon does not mention this), was
decided upon "extremely wisely ..
[as].. a political gesture of appeasement",47 and was "merely a gesture of appeasement designed to
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restore a climate of dialogue between the two countries". 48 As Nigeria will show, this is to turn history
on its head.
40. Nigeria has referred above to the fact the President Shagari's accou
nt of the incident was not a "mere
assertion" but was a statement for which there was well-documented evide
nce to substantiate what he
said (above, paragraph 36). Nigeria would first recall what President
Shagari said. He asserted "most
emphatically and unequivocally ... that the sad event ... did take place
on Nigerian territory"; he added
that "it was a deliberate, premeditated and carefully prepared ambush ag
ainst our patrol"; it "took place
on Akwa yaji River, about 2km South of Ikang, a Nigerian town"; he added
that it was "stretching
credibility too far" to say, as did Cameroon, "that Nigerian troops in t
wo patrol boats opened fire first on
an unsuspecting Cameroonian patrol boat and yet killed not a single Came
roonian soldier" while at the
same time five Nigerian soldiers were killed and three others seriously
wounded.
41. The crucial aspect of President Shagari's statement is that the inci
dent was "a deliberate,
premeditated and carefully planned ambush against our patrol". President
Shagari did not at the time go
into further details, but Cameroon's distortion of these events makes it
necessary for Nigeria to reveal the
true facts behind President Shagari's statement. The facts show that Cam
eroon's conduct was aggressive,
reckless and irresponsible, and provided yet another illustration of Cam
eroon's repeated attempts to
advance its presence into Nigerian territory (see paragraph 16.5 above)
. Information available to Nigeria
at the time showed that Cameroon's conduct involved (a) a major build-
up of its armed forces in the
region, (b) a carefully laid ambush of a Nigerian patrol, (c) with t
he hope of provoking Nigeria into
starting a major, full-scale armed response, and (d) thereby enabling
Cameroon to make political capital
by painting Nigeria as an aggressor. It was President Shagari whose cond
uct prevented this incident
from developing from a limited ambush into the major armed confrontation
which Cameroon had been
trying to provoke; it was President Shagari who was able to quell the Ni
gerian people's justified outrage
at this incident, which as he said, "shook the entire Nigerian nation mo
rally and politically" (letter of 25
May 1981); and it was President Ahidjo who, after taking time for consi
deration, found it advisable in
the circumstances to apologise and pay compensation and to press the mat
ter no further.
42. In substantiation of this account of what lay behind Cameroon's outr
ageous behaviour, Nigeria
wishes to place before the Court a full account of this incident and its
background.
(1) On 13 May 1981 an intelligence summary for the period from 10 to 3
0 April recorded
increasing Cameroonian harassment of Nigerians in the Bakassi area (Ann
ex NR 185),
including making the inhabitants learn French and adopt Cameroon customs
- a clear
indication that the local population were not already Cameroonianised.
(2) On 26 May 1981 a situation report was sent from HQ 13 Infantry Bri
gade to Army HQ
'G' (Annex NR 186): this report recorded that "before the incident of
16 May 81, two ships
from Germany discharged arms at Victoria port for three weeks. More than
one hundred
armoured cars including assorted weapons were discharged. Arms later tra
nsported to
Yaounde and stored at Mentui about 24 kilometres from Yaounde." That rep
ort also
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records the subsequent build-up of Cameroon's arms in the area.
(3) At 1007 hours on 15 May a message was sent reporting that "Gendarm
es have
intensified molestation and brutality on Nigerian inhabitants of the CRS
[i.e. Cross River
State] fishing ports" (Annex NR 187).
(4) At 1912 hours on 16 May a message reported that "Own creek patrol
of about one
platoon strength with 2 boats went on Akpa Yafe River and by about 0855
on 16 May
were ambushed by Cameroon troops" 49 (Annex NR 188).
(5) At 2210 hours on 16 May a further message, which referred back to
that mentioned at
(3), reported "Army creek patrol ambushed by Cameroon troops. Five sol
diers including
one officer killed. Three ORs seriously wounded." (Annex NR 189).
(6) At 1514 hours on 17 May HQ, following receipt of the message at (
5), requested
information as to the position of the ambush (Annex NR 190), and the m
essage in reply
sent at 2106 hours that day stated "Own troops ambushed in Akpa Yafe Riv
er near
Ikang" (Annex NR 191).
(7) After the incident, Lt. Colonel Ehigiator, the Commanding Officer
at HQ 35 Infantry
Battalion, made an on the spot investigation of the circumstances which
led to the killing
of the 5 Nigerian soldiers. His full report, dated 18 May 1981, i.e. jus
t two days after the
incident occurred, is at Annex NR 192. From this report (particularly p
aragraph 10) it is
clear that the killings took place several kilometres within Nigerian te
rritory, that the
Cameroonian ambush was well planned and that the Cameroonian personnel w
ere in
disguise and using a patrol boat similar to those used by Nigerian Custo
ms.
43. Nigeria draws the Court's attention to the compelling nature of this
evidence, all of it contemporary
with the incident referred to, and provided by people directly involved
in or with operational
responsibility for the consequences of the Cameroonian attack.
44. In conclusion, Nigeria notes that (a) this incident occurred 13 ye
ars before Cameroon instituted the
present proceedings; and (b) as regards any Cameroonian claim that Nig
eria bears international
responsibility for this incident taken on its own, it is apparent that t
he facts have not been sufficiently
clearly established by Cameroon to make possible a finding of internatio
nal responsibility on the part of
Nigeria, and Cameroon itself has in any event - and very properly - ackn
owledged its responsibility for
the incident.
45. As for Cameroon's possible alternative argument, that the incident i
s supporting evidence for
Cameroon's more general claim of Nigerian responsibility for violation o
f various 'fundamental'
international obligations, the same absence of clearly established facts
showing Nigerian responsibility
for the incident (and indeed, the facts showing that it was rather Came
roon which instigated the whole
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affair), as well as Cameroon's assumption of responsibility for it, dep
rives the incident of even that
supporting role for Cameroon's case.
Incident of 16 June 1984 (No. 9)
46. This incident is said by Cameroon to have involved the establishment
on 16 June 1984 of a Nigerian
customs control post in the waters of the Rio del Rey. It does not, ther
efore, involve any alleged
"invasion or occupation" of Bakassi. Consequently it is among the incide
nts for which Cameroon has
withdrawn any claim that, as a separate and individual incident taken on
its own, it gives rise to
international responsibility on the part of Nigeria; rather it is an inc
ident which Cameroon now seeks to
treat as evidence in support of some broader claim of Nigerian responsib
ility. 50
47. In its Counter-Memorial Nigeria drew attention to several inadequacies in Cameroon's account of
this incident, which led Nigeria to deny that it gave rise to any intern
ational responsibility on the part of
51
Nigeria.
48. In its Reply Cameroon sidesteps the inadequacies to which Nigeria drew attention. Th
e only point of
substance made by Cameroon is to deny Nigeria's assertion that the bound
ary between Nigeria and
Cameroon is on the Rio del Rey: as Cameroon says, "This is not the case.
" 52 Nigeria can only respond
by repeating its view that that is precisely where the international bou
ndary runs, for the reasons
explained in NC-M, Chapter 11. Nigerian customs officials in the Rio del
Rey were simply carrying out
the normal duties of Nigerian authorities in policing and regulating the
movement of people and goods
into and out of Nigerian territory.
49. For this incident to have any possible bearing on questions of inter
national responsibility, it is
necessary to know in precisely which creek it occurred and whether that
creek was undoubtedly within
Cameroon territory. It is not enough to say just that it occurred "in a
creek in the vicinity of the Rio del
53
Rey", since the Rio del Rey has many creeks, some of which are quite long; an
d even creeks outside
54
the Rio del Rey may be regarded as 'in its vicinity'. Cameroon has ignored this need to be more
specific than it had been so far, presumably because it cannot provide t
he necessary precision. Cameroon
seems to think that giving the name of the boat which was inspected is s
ufficient to establish that the
55
Nigerian customs inspection took place in Cameroon's territorial waters:
but the mere name of the boat
being inspected says nothing about where the inspection took place.
50. This alleged incident, which still remains insufficiently identified
, has been withdrawn by Cameroon
as a separate and individual claim for Nigerian international responsibi
lity. It is relied on simply as
evidence in support of alleged Nigerian breaches of some broader obligat
ions owed to Cameroon. For
the reasons given by Nigeria above (and in its Counter-Memorial) this incident is insufficiently
established to constitute either alone or taken together with other inci
dents, credible evidence in support
of allegations of breach by Nigeria of other broader international oblig
ations.
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Incidents referred to in a message dated 2 December 1985 (No. 10)
51. These incidents mentioned in MC paragraph 6.52 concerned, in substan
ce, allegations of Nigerian
maritime police and customs patrols in waters off Bakassi, in particular
near the Innua-Mba fishery.
52. These incidents fall within those for which Cameroon has withdrawn a
ny claim that, taken on their
own, they give rise to international responsibility on the part of Niger
ia; rather they are incidents which
56
Cameroon now seeks to treat as evidence illustrating some broader claim
of Nigerian responsibility.
53. In its Counter-Memorial Nigeria showed that the alleged incidents had in no way been adequately
identified or substantiated, that Cameroon had at no time protested agai
nst them before the filing of
Cameroon's Memorial, and that they were by now stale. Accordingly Nigeria denied that they
gave rise
to any international responsibility on its part.57
54. Cameroon now says that it only cited the incidents referred to in it
s Memorial as a means of
58
illustrating the numerous incursions into Cameroon's waters. Nigeria must point out, once again (see
above paragraph 23), that any one incident can only be evidence relatin
g to that one incident, and cannot
be evidence of, or illustrate, other incidents said to have occurred; an
d even as evidence relating to the
one incident itself, it is only evidence to the extent that it is proper
ly substantiated.
55. Cameroon seeks to provide further information about the reality of t
he principal incidents to which it
59 60
referred, and then goes on to refer to some additional new incidents of a similar
kind.
56. As to the principal original incidents, Cameroon first admits that t
he Nigerian "customs post" in
question in these incidents is nothing more than a boat. 61 It is thus said to be sometimes impossible to
locate a single place where the incursions by Nigerian maritime customs
authorities took place. This is
only partially true: if a customs boat stops and inspects another boat i
t does so at a particular location,
and that location can be identified - indeed, it must be identified if any question of international
responsibility is in issue (particularly in relation to locations at se
a), since the question of responsibility
is closely related to the exact location at which an incident is said to
have occurred. If a boat moves from
place to place, it simply means that incidents will take place at severa
l separate places: but if they are to
be the basis for complaints of international responsibility, that in tur
n means that the several separate
locations must each be identified.
57. Contrary to Cameroon's assertion, Nigeria did not say that Cameroon
did not know where Inua Mba
was: Nigeria simply noted that Cameroon had not clearly identified the l
ocation of the "Innua-Mba
Fishery", and that there was on the material provided by Cameroon at the
time some confusion as to its
62
whereabouts. Cameroon now confirms that the fishery it was referring to as being at
Inua Mba is
located at the place marked on the sketch map at Figure 24.3 facing p. 6
74 of Nigeria's Counter-
Memorial. Cameroon was thus at fault in indicating on its map on p. 359 of its Observations on Nigeria's
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Preliminary Objections the location of the sub-prefecture under which Inua Mba comes, rather t
han Inua
Mba itself, which is some distance away (see NC-M, Figure 24.3 facing p
. 674). Now, however, it is to
be noted that Inua Mba is known in Cameroon as Forisane. Yet Cameroon it
self refers to "Inua Mba", so
the allegedly Cameroonian name has clearly not been effectively imposed
on the local population.
58. Cameroon concludes its reply on the question of the location of this
incident by in effect saying that
its precise location does not matter since, "In any case, as this fisher
y is located in the Bakassi Peninsula,
it is clearly in Cameroonian territory". That assertion has no more weig
ht than that of an argument: it is
not a fact, from which consequences follow as to international responsib
ility. For its part, Nigeria must
say that Inua Mba, being in Bakassi, is clearly in Nigerian territory, a
nd therefore no violation of
Cameroonian territory was involved in Nigerian maritime police and custo
ms authorities carrying out
their normal functions in Nigerian territory. Indeed, by raising this an
d similar incidents Cameroon is
again demonstrating the reality of Nigeria's effective police and custom
s control of the area in which
they were operating.
59. Nigeria pointed out in its Counter-Memorial that not only was Cameroon unspecific about the
location of the incident, but also about the date on which it is said to
have occurred. Cameroon admits
that its Memorial was not explicit about this. 63 But Cameroon goes on to argue that a date - "albeit an
approximate one", nothing more specific than sometime during the month o
f August 1985 - could be
deduced from Annex MC 277 to its Memorial, and that in any event fixing a specific date, and just one,
for acts which are said to have regularly occurred over a period of time
would be futile.
60. These comments reveal very starkly Cameroon's total failure to appre
ciate that it is now involved in
serious and detailed legal argument, rather than generalised political r
hetoric. If the mere fact that a State
alleges a whole series of broadly similar acts could have the effect of
establishing, without more, that
such a series of acts had indeed occurred, the whole process of internat
ional litigation in cases of State
responsibility would be undermined. Either the acts occurred or they did
not, and if they occurred they
either did so in particular circumstances and with particular legal cons
equences or they did not. If they
occurred, in the circumstances and with the consequences alleged, that must be established by evidence
produced by the Party making the allegation. If no, or only inadequate, evidence is produced, their
occurrence will not have been established, and for legal purposes they h
ave to be disregarded.
61. So it is in the present context. Cameroon's presentation of its fact
ual case remains full of
uncertainties, which are not only sufficient to deprive it of any basis
for an individual claim of
responsibility, but also to deprive it of any legal weight in support of
any claim of breaches by Nigeria
of more general legal obligations. Cameroon has provided no evidence tha
t it protested about this
incident at any time prior to the filing of its Memorial, or otherwise brought it to the attention of the
Nigerian Government. For present purposes it must be disregarded.
Incident Nos. 14-21
(i) Incidents referred to in a note dated 15 March 1984 (No. 14)
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(ii) Incident referred to in a message dated 29 September 1990 (No. 1
5)
(iii) Incident referred to in message dated 10 December 1990 (No. 16)
(iv) Incident referred to in message dated 13 December 1990 (No. 17)
(v) Incident of 27 April 1991 (No. 18)
(vi) Incidents referred to in a note dated 29 October 1992 (No. 19)
(vii) Incident referred to in a note dated 18 December 1992 (No.20)
(viii) Incidents referred to in a message dated 23 June 1993 (No. 21)
62. Cameroon, in its Reply, 64refers to the response to Cameroon's Memorial given by Nigeria in
paragraphs 24.134-24.179 of its Counter-Memorial. Those paragraphs deal with the incidents identified
in the heading immediately preceding this paragraph. Cameroon deals coll
ectively with these incidents,
to which it adds some new incidents mentioned now for the first time. It
refers to them as relating to
"Recurrent Nigerian incursions into Jabane during the second half of the
1980s" (Heading to Sub-section
7, preceding RC paragraph 11.101), and in paragraph 11.101 itself it re
fers to them as "relating to the
progressive occupation of Jabane as from the middle of the 1980s".
63. Cameroon presents its collective account of these incidents in the p
erspective of being "part of a plan
to invade the Bakassi Peninsula". 65 This is a mistaken view of the true situation in respect of the Bakassi
Peninsula.
64. Cameroon seeks to present itself as the victim of Nigerian expansion
in this region. Nothing could be
further removed from the truth. As Nigeria has consistently made clear,
not only does Nigeria's
territorial sovereignty extend to and embrace the Bakassi Peninsula, but
Nigerian authority there at the
time of and following upon the attainment of independence in 1960 was we
ll established, while
Cameroon's presence was non-existent.
65. Gradually, however, Cameroon has sought to change the status quo and to infiltrate into the
Peninsula, and evict Nigeria. It is Cameroon, and not Nigeria, which par
ticularly in the early 1990s
stepped up its campaign to acquire Bakassi, both by increasing the level
of its harassment of Nigerian
authorities and civilians in the region and by a heightened campaign of
diplomatic activity, including
protests against what it presented as Nigerian wrongdoing: as Cameroon's
advances into Bakassi became
more audacious, the occasion for such spurious protests naturally became
more frequent - but rather than
being evidence of increasing Nigerian wrongdoing, they only testify to s
teadily increased Cameroonian
attempts to confront the Nigerian authorities in their own territory. Ni
geria has naturally not acquiesced
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in these attempted Cameroonian encroachments, and has continued to exerc
ise its legitimate authority in
the area.
66. Against that background, it would be straightforward for Nigeria to
respond to Cameroon's various
claims, based allegedly on a variety of incidents said to involve Nigeri
an civil and military authorities in
the Bakassi Peninsula, by simple reliance on Nigeria's sovereignty over
the area and the consequential
assertion that any exercise of authority by Cameroon in Bakassi was in violation of Nigeria
's territorial
sovereignty. Nigeria, while indeed maintaining that position, has howeve
r taken Cameroon's allegations
of wrongdoing by Nigeria at face value, and - without prejudice to its u
nderlying position as set out
above - has shown them generally to be wholly inadequate to establish an
y international responsibility
on the part of Nigeria.
67. Nigeria would first observe that of the eight incidents with which C
ameroon purports to deal
collectively in RC paragraphs 11.101-11.121, Cameroon does not there dis
cuss items (i) and (vi).
Nigeria accordingly stands by its criticisms of those alleged incidents
contained in NC-M paragraphs
24.134-24.139 and 24.163-24.169. Although Cameroon has now produced the
internal note missing
from its Memorial (see NC-M paragraph 24.135), that note 66 is in no way specific about the matter
being discussed in it, particularly as regards any relevant dates (see
NC-M paragraph 24.136): it thus
does nothing to meet the criticisms advanced by Nigeria about an inciden
t said to have occurred as long
ago as 1984.
68. Item (ii) concerned alleged visits by Nigerian navy and police off
icials to Abana. Nigeria criticised
Cameroon's presentation of this incident as being inadequately particula
rised, including as to date.
Cameroon replies by simply stating, 67 without providing any further evidence, that the alleged incident
(s) occurred in "the year 1990". This is a wholly inadequate basis for
identifying an incident which is
said to give rise to Nigeria's international responsibility.
69. Cameroon treats incidents (iii) and (iv) as involving the same m
atter, namely the removal of the
Cameroonian flag in Abana (Jabane) and its replacement with the Nigeri
an flag; in its Reply Cameroon
says that the information given about this incident in its Memorial is repeated in a further letter of 21
December 1990 from the Governor of the South-West Province to the Minist
er for Territorial
68
Administration. Nigeria put forward a number of reasons to show that these alleged inci
dents were
inadequately established by the evidence relied on by Cameroon. The only
point of criticism which
Cameroon addresses is the contradiction involving the manuscript notatio
n of the date of the document,
which Cameroon seeks to explain by saying that such errors are to be exp
ected in the first few days of a
69
new year. Apart from the feebleness of this explanation, even if correct (which
is improbable in an
efficient bureaucracy) it reveals a degree of carelessness which underm
ines the value of the document as
evidence supporting a claim of international responsibility. It also, of
course, leaves untouched the other
points on which Nigeria criticised the adequacy of Cameroon's allegation
s (at NC-M paragraphs 24.144-
24.153).
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70. The new document which Cameroon supplies in support of its allegatio
ns does not add any
evidence regarding this alleged incident. So far as that incident is con
cerned, the document, which
consists of a letter from the Governor of the South-West Province, merel
y refers to a telex of 12
December 1990 from (apparently) the Minister of Territorial Administra
tion which is said to have
reported a flag lowering/raising incident: but that telex is not itself
attached, and the rest of the
Governor's letter concerns future action which he is recommending that C
ameroon should take, and
offers no evidence of or further reference to the alleged incident.
71. Item (v) concerned the hoisting of a Nigerian flag at Abana and th
e erection of a signboard involving
the Nigerian commune of Mbo. Of Nigeria's many criticisms of the adequac
y of the evidence supporting
this incident,1 Cameroon only seeks to respond to one, namely Nigeria's alleged claim "
that these
actions are attributable to local officials", arguing that the activitie
s of even local public employees are
attributable to the State.2
72. But Cameroon has oversimplified the point which Nigeria was making.
Nigeria noted that the text
relied on by Cameroon "suggests at least serious doubt about whether the
persons were acting as organs
73
or agents of the Federal Republic of Nigeria, and about the capacity in
which they were present".
Nothing in Cameroon's Reply does anything to dispel those doubts. In any event, the remaining point
s of
criticism raised by Nigeria have not been addressed by Cameroon in its Reply, and Nigeria still stands by
them.
73. Item (vii) concerns the building of a Nigerian school in Abana. As
Cameroon notes, 74 Nigeria
accepts that in Abana it built "a Nigerian Government primary school" -
while Cameroon quoted that
passage from Nigeria's Counter-Memorial, Cameroon did not complete the part of the quotation which
states "that this was a Nigerian Government primary school built in a Ni
gerian town, Abana". That
remains Nigeria's position; and from NC-M paragraph 10.96 and paragraphs
3.205-3.218 of this
Rejoinder, it will be seen that this was part of a consistent pattern of Nigerian
schools built in Bakassi
for more than a century past, between 1893 and 1993.
74. Item (viii) concerns alleged incidents referred to in a Cameroonia
n protest Note of 23 June 1993.
Nigeria identified a number of inadequacies in Cameroon's accounts of th
ese alleged incidents. 75
76
Cameroon merely makes a bare reference to that protest Note as annexed t
o its Memorial, but adds
nothing in the way of response to points made in Nigeria's Counter-Memorial. Nigeria can therefore
only repeat that "These alleged incidents have not been adequately ident
ified, or established by
sufficient evidence. Nor is it clear why Nigeria is thought to bear inte
rnational responsibility for what
appear to be acts by civilians".77
75. All but one of the remaining paragraphs of this section of Cameroon'
s Reply raise new incidents
which are alleged to have occurred in the context of what are alleged to
be Nigerian incursions into
Abana in the late 1980s and early 1990s (as to which, see paragraphs 12
0-125, 134-136 and 143-150
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below). The one exception is in RC paragraph 11.118, where Cameroon ref
ers to the incident identified
by Nigeria as Incident No. 12: this is now dealt with further in paragra
ph 84 below.
Incident of 6 March 1990 (No. 23)
76. This incident concerns the arrest of three Cameroonian policemen at
Abana. The supporting
documents submitted by Cameroon in its Memorial were considered carefully and in considerable detail
by Nigeria in its Counter-Memorial. 78That consideration led Nigeria to conclude that the documents
were unreliable in material respects, failed to support parts of Cameroo
n's allegations, and gave rise to a
number of inconsistencies. 79Moreover, it was an incident which, even on Cameroon's account, 80came
to a satisfactory conclusion at a joint "ceremony" to mark the release o
f the Cameroonians. For a variety
of such reasons Nigeria denied that the incident involved any internatio
nal responsibility on the part of
Nigeria.81
77. Despite its apparent efforts82 Cameroon is still, in its Reply, unable to give a precise location for this
83
alleged incident. In its Memorial it is said to have taken place at sea "off" Abana. Cameroon in effect
cannot improve on that description, and merely repeats the assertion tha
t the location was within
Cameroonian territorial waters. But that assertion must be proved: the w
aters "off" Abana are the waters
of the Cross River estuary, the greater part of which even Cameroon ackn
owledges are Nigerian
waters.84 That is why precision is essential before it can be established that an
y violation of territorial
sovereignty was involved in the alleged incident. The burden rests with
Cameroon to make good its
case: it has failed to do so.
78. For its part, Nigeria has been able to uncover some of the facts of
this incident - in particular the
Incident Report of 6 March 1990 of Sub-Lieutenant Gofwan (Annex NR 193)
; the Report of Captain
Ebhaleme of 8 March 1990 forwarding that Incident report to the Flag Off
icer Commanding, Calabar
(Annex NR 194); and the Report of Rear Admiral Olu Omotehinwa of 8 Mar
ch 1990 to the Chief of
Naval Staff (Annex NR 195).
79. These show that the incident involved the arrest of three Cameroonia
n security agents together with
a boat driver and miscellaneous armaments, and that it occurred at about
Latitude 4° 35' N, Longitude 8º
22.5' E. The approximate location is shown on the sketch map (Fig. 16.1): it is well within Nigerian
waters, and Captain Ebhaleme states that the arrest took place "in Niger
ian territorial water". The
recording of this incident can be seen to be meticulous.
80. It will also be noted that Captain Ebhaleme recorded that there had
been a "report from Abana about
Camerounian Gendarmes continuous terror in this area"; further, Rear Adm
iral Olu Omotehinwa's report
notes that the naval patrol had "acted in response to series of complain
ts by the villagers around Abana
about Gendarmes excesses and harassment"; that the fact that the Cameroo
nian agents had had on them
Nigerian currency indicates that "they might have extorted such money fr
om Nigerian inhabitants of the
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Villages around Abana"; and that "The presence of Cameroonian Military I
nstallations around Atabong
West (still within the disputed territory) might have encouraged the i
ncessant harassment and violation
of Nigerian territorial waters". He also recommends "that a Military bas
e and Police Post be sited at
Abana and environs as a mater of priority", thus indicating a clear beli
ef that those areas were part of
Nigeria, and that at that time no such posts were located there.
81. It will thus be seen that the inadequacies inherent in Cameroon's or
iginal account of this incident,
and brought out in detail at NC-M paragraphs 24.194-24.223, remain. Noth
ing in this incident gives rise
to any international responsibility on Nigeria's part. It was an inciden
t which came to a satisfactory
conclusion with the release of the persons concerned, and is in any even
t an incident in relation to
which, taken separately and on its own, Cameroon has withdrawn any claim
as to Nigeria's international
responsibility (above, paragraph 16.11 et seq.).
Jabane - 16.05.1991 (No. 75)
82. This incident is based on a Cameroonian protest Note of 16 May 1991,
involving alleged "frequent
incursions" by Nigerian police at Jabane. Nigeria noted that Cameroon's
account of this alleged incident
85
(or incidents) was lacking in necessary details.
83. Cameroon, in its Reply, makes no effort to respond to Nigeria's comments. Cameroon merely repe
ats
the text of its 1991 protest Note, which was already available as part o
f its Memorial. Nigeria
86
accordingly stands by its previous comments, and denies that the alleged events referred to by
Cameroon give rise to any international responsibility on Nigeria's part
(claims as to which Cameroon
has in any event now withdrawn: see paragraph 16.11 et seq.).
Incident referred to in a note dated 27 August 1991 (No. 12)
84. This concerned two small craft which left Abana at the approach of a
Cameroonian naval patrol.
87
Nigeria drew attention to a number of inadequacies in Cameroon's account
of this alleged incident,
including in particular that there was no evidence that the vessels were
Nigerian or that the persons on
88
board the vessels were Nigerian officials. Cameroon, in its Reply, deals only with this latter point, and
can do no better than suggest that the supposition that they were Nigeri
an officials would be "consistent
with the increasingly permanent nature of their [i.e. Nigerian agents']
presence in this fishery during this
89
period". This is a manifestly inadequate basis for the attribution of internatio
nal responsibility for
some specific alleged incident - quite apart from the other inadequacies
in Cameroon's account of the
matter to which Nigeria has drawn attention and which Cameroon has not s
ought to answer.
Incident Nos. 2-7
(i) Incident of 21 December 1993 (Abana and "Diamond Island") (No.
2)
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(ii) Infiltrations on and after 21 December 1993 (No. 3)
(iii) Incident of 28 December 1993 (No. 4)
(iv) Incidents on 3, 4 and 5 January 1994 (No. 5)
(v) Incidents of February 1994 (No. 6)
(vi) Cameroon's allegations concerning the occupation by Nigeria of pa
rts of the Bakassi
Peninsula since 1993 or 1994 (No. 7)
85. Cameroon's Memorial identified these 6 separate alleged incidents among those for which it
sought
to hold Nigeria internationally responsible. Nigeria dealt carefully wit
h each of them in its Counter-
Memorial at paragraphs 24.68-24.96. Cameroon now chooses to ignore Nigeria's res
ponse to the original
allegations, and instead treats them all together (for, in its brief re
ference to this part of Nigeria's
Counter-Memorial, Cameroon, in RC paragraph 11.137, refers collectively to paragraphs 24
.68-24.96 of
the Counter-Memorial). Cameroon's collective treatment of these separate incidents is now p
ut under the
new heading, "The Nigerian military invasion of December 1993-February 1
994".
86. This confirms that Cameroon has withdrawn any claim that these incid
ents, as separate and
individual incidents taken on their own, give rise to international resp
onsibility on the part of Nigeria;
rather - in line with the new position which Cameroon has adopted in its
Reply (see above, paragraph
16.11 et seq.) - Cameroon seeks to treat them as evidence in support of its broader
claims against
Nigeria (see RC paragraph 11.140).
87. As Nigeria has already noted (above, paragraphs 16.31 and 16.32),
Cameroon cannot, by changing
its approach to questions of Nigeria's international responsibility from
one of seeking to establish
responsibility case by case for each of a series of separate incidents t
o one of treating those incidents as
merely supporting evidence for the breach by Nigeria of some so-called '
fundamental' international
obligations, avoid the need to establish that the facts which it cites d
id in fact occur in the manner
alleged by Cameroon, and had the legal consequences which Cameroon attri
butes to them.
88. Nigeria, in its Counter-Memorial, refuted or cast grave doubt on Cameroon's allegations, given
certain deficiencies in Cameroon's account of them. Cameroon has made no
attempt to reply to, let alone
remedy, those deficiencies: indeed it has now added to them, by attribut
ing the beginning of these
90
incidents to 28 December 1993, and not 21 December 1993 as in its Application and Memorial (see
NC-M paragraphs 24.68 and 24.71). Because of these unanswered and unrem
edied deficiencies, Nigeria
continues to reject Cameroon's allegations, and the consequences in resp
ect of alleged Nigerian
responsibility which Cameroon seeks to draw from them.
89. The only point which Cameroon makes in its Reply in this context relates to item (vi) in the heading
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preceding paragraph 85 above. Cameroon thus offers no comment whatsoever
on items (i) to (v) in the
heading, corresponding to Incidents Nos. 2-6 in Nigeria's Counter-Memorial. Those alleged incidents
still cannot, accordingly, be taken as either giving rise, separately an
d individually, to any international
responsibility on the part of Nigeria - claims as to which Cameroon now
appears in any event to have
withdrawn - or as evidence in support of some broader claim of Nigerian
responsibility.
90. The one point which Cameroon makes, in relation to item (vi) in th
e heading, is to emphasise
Nigeria's acknowledgement that in December 1993 its armed forces were "d
eployed to certain locations
in the Bakassi Peninsula" 91 and that it had maintained "the presence of its military forces in the
Bakassi
92
Peninsula from February 1994".
91. Cameroon purports to see this as reflecting agreement between the Pa
rties on "the sudden occupation
of certain parts of the Bakassi Peninsula by the Nigerian military force
s and their constant presence in
93
the peninsula since the beginning of the year 1994". With further reference, apparently, to the events
of December 1993 Cameroon refers to them as showing "that the Nigerian a
rmy took control of the
South-West of the Bakassi Peninsula at the end of 1993 although, until t
hen, it did not have any position
94
there".
92. Nigeria totally rejects the construction which Cameroon seeks to put
on the events of December
1993 and February 1994. Quite apart from Nigeria's fundamental position
(affirmed by the Co-Agent of
Nigeria in 1996) 95 that it has, and at the relevant times had, sovereignty over Bakassi an
d that events in
Bakassi have to be seen in that light, Nigeria makes the following point
s.
(1) There is no agreement on Nigeria's part to there having been any "
sudden occupation"
by its armed forces of part of Bakassi.
(2) As explained in NC-M paragraph 24.94, the presence of Nigerian for
ces was
occasioned by the risk of violent clashes between claimants representing
two Nigerian
States, namely Akwa Ibom and Cross River (as explained in Nigeria's Not
e of 4 March
1994 to the President of the Security Council. 96 Cameroon was well aware of this: see NC-
M paragraph 24.94. An additional cause of concern lying behind the measu
res taken was
the persistent acts of harassment by Cameroon gendarmes in the Bakassi region (above,
paragraphs 3.136-3.141).
(3) That background, which Cameroon fails to mention and still less to
dispute, shows
clearly that (i) the incident was not directed against any unlawful Ca
meroonian presence
in Bakassi, and (ii) the area in question was a bone of contention bet
ween two Nigerian
States, thus showing that the area was under the active control of Niger
ian Federal and
State authorities.
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(4) That alone shows the incorrectness of Cameroon's statement that un
til December 1993
Nigeria "did not have any position there [i.e. in south-west Bakassi]".
(5) There was thus no question of Nigerian action disturbing the terri
torial status quo, as
Cameroon states.
(6) As regards the continuing presence of Nigerian troops in Bakassi,
Cameroon makes no
mention of the reasons why they were there. These reasons are fully expl
ained in NC-M
paragraphs 24.95-24.96. Put briefly, Cameroon launched repeated attacks
on Nigerian
settlements and military positions in Bakassi, and severely harassed the
Nigerian
inhabitants, embarking on a systematic campaign against the Nigerians li
ving in Bakassi,
driving out many of them; in particular, as recorded in Nigeria's Note o
f 4 March 1994 to
97
the President of the Security Council, Cameroon launched attacks on Nigerian troops on
14, 18 and 19 February 1994. None of the circumstances cited by Nigeria
in its Counter-
Memorial is contradicted by Cameroon in its Reply. They left Nigeria with no choice but
to keep its troops in Bakassi from February 1994 onwards.
(7) Since Nigerian military and administrative authorities were in con
trol in the area at the
time, it was Cameroon which, by sending forces into Bakassi in February
1994, was
violating the territorial status quo.
(8) The mere fact, taken by itself, that Nigerian military forces were
in Bakassi in
December 1993 and again from February 1994 onwards does not in itself es
tablish, as
Cameroon seems to think, that Nigeria has thereby violated any internati
onal obligation
owed to Cameroon. The facts of and circumstances surrounding those troop
deployments,
and the reasons for them, are relevant to any consideration of questions
of international
responsibility. In particular, Nigeria draws attention to the right of a
ll States to take the
necessary action within their own territories to maintain order in cases
of threatened
internal violence, and the right of all States to take necessary and pro
portional action in
self-defence, and to protect their territories, troops and inhabitants f
rom unlawful attack
and harassment by other States.
93. This one incident consequently neither gives rise to international r
esponsibility on the part of Nigeria
if taken as a separate and individual incident, nor does it provide any
supporting evidence - either by
itself or in combination with the other incidents (i) to (v) covered
by the heading preceding paragraph 85
above - for any more general claim of responsibility which Cameroon migh
t seek to advance.
94. It does, however, give rise to international responsibility on the p
art of Cameroon, and is the subject
of a counterclaim by Nigeria: see NC-M paragraph 25.13, and the Appendix
to Chapter 18 below.
LAKE CHAD
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95. In its Counter-Memorial Nigeria responded to all the alleged incidents which Cameroon said had
occurred in the Lake Chad area. 98 Underlying Nigeria's response was the consideration that, as
explained in Part III of its Counter-Memorial and at NC-M paragraph 24.62, sovereignty over the
relevant areas in Lake Chad vested at all material times, and still vest
s, in Nigeria, which occupies and
administers them as of right. Nevertheless, Nigeria considered the incid
ents raised by Cameroon.
99
Cameroon's assertion that Nigeria had, in its Counter-Memorial, abstained from replying in substance
to any of the incidents raised by Cameroon is wrong. Nigeria examined ea
ch alleged incident with care
(indeed, with much greater care and attention to detail than Cameroon d
evoted to putting them forward),
and showed that each of them had not been adequately established in orde
r to support a claim of
international responsibility on the part of Nigeria. In its Reply Cameroon only returns in any remotely
substantive way to three of those incidents. Nigeria will therefore in t
his Rejoinder respond further only
to those three.
Faransa - 19.12.1984 (No. 38)
96. Nigeria drew attention to several deficiencies in Cameroon's allegat
ion of events taking place at
Faransa as long ago as 1984. 100 Cameroon makes no serious attempt to remedy them.
(1) As to Cameroon's assertion that Nigeria "stresses" the fact that t
here was no mention in the Note on
101
which Cameroon was relying of the Cameroonian flag having been replaced
with a Nigerian one,
Nigeria notes, first, that the point was made without any particular emphasis but just as one of several
factual deficiencies in Cameroon's account, and second, that the point b
eing made by Nigeria was simply
that the only document being relied on by Cameroon in support of this al
leged incident described it in
terms different from those used by Cameroon to describe it in its Memorial: in other words Cameroon's
description of the incident was unreliable.
(2) One of the deficiencies in Cameroon's allegation to which Nigeria
drew attention was that Nigeria
knew of no place named Faransa, and Cameroon had not identified where th
is village was located.
Although Cameroon refers to the various names by which this village is k
nown (Faransa, Faransia,
Fransia: RC paragraph 11.179), Cameroon still nowhere identifies its lo
cation: the map at R4 (preceding
p.115 of Cameroon's Reply), which Cameroon says is a map "showing the location of villages in
dispute" 102contains no reference to Faransa, either by name or by reference to the
numbers given to
various locations in the Annex to RC, Chapter 3 (RC, p.147). In fact i
t now transpires that Faransa's
location can be identified. Faransa is the name given by Cameroon to Kirta Wulgo, 103 and Cameroon
104
acknowledges that Kirta Wulgo is in Nigeria.
97. Nigeria still, accordingly, denies that Cameroon has established any
basis on which Nigeria is to be
held internationally responsible. Indeed, in so far as Cameroon has admi
tted that the Cameroon flag was
raised by Cameroon at Kirta Wulgo (alias Faransa), which Cameroon admits is in Nigeria, it is clearly
Cameroon which has incurred liability in this respect.
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Darak - 26.06.1987 (No. 36)
98. In Annex OC 1 to its Observations, at p.198, Cameroon referred to repeated incursions by political
and administrative officials and by the Nigerian forces at Darak. In its
Counter-Memorial Nigeria
showed that Cameroon had failed to provide adequate or reliable evidence
of wrongful conduct by
Nigeria such as to give rise to international responsibility on Nigeria'
s part, and pointed out that in any
event Cameroon was seeking to attribute international responsibility to
Nigeria for acts by Nigerian
105
officials in a location over which Nigeria has sovereignty.
99. In its Reply Cameroon does not have anything more to say about the inadequacy of the
evidence it
had previously submitted, although it purports to provide additional inf
ormation about Nigerian official
and military activity in the area.106This information is, however, very selectively presented. The
documents from which it is derived need to be looked at as a whole in or
der to gain a true picture of
circumstances in the region. Thus:
107
(1) the report of Lt. Kegne is cited as evidence of the presence of Nigerian forces in
Darak, and gives details of an incident involving the detention by Niger
ian military
personnel of some presumably Cameroonian members of PAMINT (which stand
s for
Mixed International Patrol) as they were approaching Darak; the report
makes it clear that
the Nigerians "wanted only to check if indeed [they] were from the PAMIN
T" 108 - a
perfectly routine task for military personnel;
(2) the report also makes clear that once the Cameroonian personnel's
membership of
PAMINT had been established, the Nigerians were apologetic for having de
tained them:
they were told that Darak was open to them, and the Nigerian officer org
anised "a drink
(party) of reconciliation in our honour, and altogether with the Niger
ian soldiers we all
drank";109 they were also given 40 litres of petrol (shortage of petrol being why
the
Cameroonian personnel had gone to Darak in the first place);
(3) the report concludes "Despite all these disorders, we did not regi
ster any real threat,
110
nor any insult worthy of the name, and in the end everybody apologised..
.". It is clear
that the whole matter was utterly insubstantial, and as a basis for an a
llegation of
international responsibility bordering on the frivolous;
(4) the report moreover refers to a number of matters involving miscon
duct by
Cameroonian gendarmes against Nigerians - thus the Nigerian Lieutenant i
s reported to
say "that he did not understand why the Nigerian personnel are always ar
rested by the
Cameroonians" 111 and the report states that "03 days previously the Cameroonian
gendarmes were apprehended at NAGA in the process of carrying out exacti
ons against
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the population;"112
(5) the Monthly Summary of Information for June 1987 113 similarly records that on the
night of 4/5 June 1987, "two gendarmes from the Mora brigade and six mem
bers of the
Chari OPS were apprehended in Banki on the Nigerian side by members of that country's
patrol. They were released the following day." 114 (emphasis added);
(6) the Monthly Summary, while recording Nigerian military activity in
Darak on 17 June
1987 (which is the matter in relation to which Cameroon cites this docu
ment), concludes
"Despite a few incidents observed all along the Cameroon-Nigeria border,
the 3rd Military
115
Region continues to experience its usual calm...". Again, it is clear that the matters
about which Cameroon is now so loudly complaining were wholly insubstant
ial.
100. Apart from the crucial consideration that, since Nigeria has sovere
ignty over Darak, the presence
there of Nigerian forces is entirely legitimate (and the presence there
of Cameroonian forces unlawful),
Nigeria draws attention to the following additional considerations:
(1) The removal of the other State's flag and its replacement with tha
t of one's own State is
a regular occurrence in situations where there is a dispute over territo
ry. It is seldom a one-
way activity. Thus after reporting that in June 1987 Nigerian soldiers r
emoved the
Cameroon flag in Darak and replaced it with their own, the Cameroonian r
eport continues
"we are keeping the Nigerian flag here", 116 presumably after having taken it down and
replaced it with another Cameroon flag. Nigeria is certainly aware of ma
ny other instances
in which a Nigerian flag has been taken down by Cameroon forces or offic
ials and
replaced by a Cameroon flag; when the opportunity offers itself, Nigeria
naturally in turn
takes down that improperly raised Cameroon flag and replaces it with the
Nigerian flag.
Which State first starts this reciprocal de-flagging and re-flagging in
any one locality is a
question the answer to which can probably never be known.
(2) Similarly, where a boundary is unclear (e.g. because it is not de
marcated) and even
more so where it runs through territory which is in dispute, what are se
en by one State as
cross-border 'transgressions' by the other are likely to occur with some
regularity in both
directions. Neither side has a monopoly of such 'transgressions'. As dem
onstrated above,
even Cameroon's own documents show that Cameroon officials went, imprope
rly, into
Nigeria.
(3) Both the de-flagging and re-flagging incidents, and those involvin
g cross-border
'transgressions', are relatively minor consequences of the underlying di
spute over territory.
The local authorities do not treat these incidents as serious matters, a
nd they are usually
rapidly settled locally in a spirit of co-operative 'give and take'. The
y do not in themselves
raise major issues of international responsibility.
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No. 28. Incident of 13 May 1989
101. This incident allegedly involved the arrest and confiscation of a C
ameroonian fisheries boat by
Nigeria armed forces. As Nigeria noted in its Counter-Memorial, it was the only incident allegedly
occurring in the Lake Chad area which was put forward by Cameroon in its
Memorial with even a
117
colourable degree of particularity. Even so, on closer examination of the particulars given by
Cameroon, Nigeria concluded that this
"alleged incident has not been adequately established by sufficient evid
ence. The facts of
the incident are unclear, Cameroon's supporting evidence is contradictor
y, and
Cameroon's diplomatic correspondence about the matter did not constitute
any protest or
118
even reservation of rights."
102. Cameroon now seeks to explain the inadequacy of its supporting mate
rial by saying that the reports
it was relying on were not designed to be exhaustive accounts of the inc
idents referred to, but only to
provide a "brief résumé of the events". 119But that is simply not good enough as a basis for an allegation
of international responsibility. By limiting itself to such a "brief ré
sumé", Cameroon (quite apart from
deficiencies in its supporting 'evidence') has clearly failed to discha
rge the burden resting on it to make
good its case against Nigeria in respect of this alleged incident.
103. Cameroon addresses only one issue in any detail, namely the lack of
certainty about the location at
which the alleged seizure is said to have taken place. Although the vari
ous reports initially relied on by
120
Cameroon contain clear discrepancies on this issue, Cameroon ignores these discrepancies and,
choosing between various possibilities, now states that the version of e
vents which is to be believed (and
by implication that its other documents submitted in evidence are not to
be believed) is that the alleged
121
seizure took place in Blaram, between Blangoua and Kofia. This assertion still does not clarify
matters sufficiently, since Cameroon continues not to specify the locati
on of Blaram, despite Nigeria
122
having pointed out that it was not familiar with any place bearing that
name, and despite the fact that
the map appearing on page 209 of Cameroon's Observations alleges that this incident occurred in close
123
proximity to Cameroon's border with Chad, and nowhere near Nigeria: certainly, Kofia itself is,
according to Cameroon, 124 in Chad.
104. It is incorrect for Cameroon to say that the exact place at which a
n incident occurs is "without legal
125
consequence": in cases where incidents are said to give rise to international respons
ibility, especially
where sovereignty over the general region in which an incident is said t
o have taken place is a matter of
dispute, it is essential to know precisely where an incident took place
because not only is that an
essential part of the facts of the matter and a crucial consideration in
relation to questions of territorial
sovereignty which might be issue, but also it is important in enabling t
he respondent State to identify the
alleged incident so as to be able to respond to the allegation made agai
nst it.
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THE LAND BOUNDARY
Incident of 29 May 1989 "at Kolofata" (No. 31)
105. This incident is said to have involved the abduction of a Camerooni
an citizen by three Nigerian
police officers. In its Counter-Memorial Nigeria drew attention to a number of deficiencies in the only
document relied on by Cameroon in support of its allegation. 126Contrary to Cameroon's assertion, 127
even the contradictions between a document and its cover sheet do affect
its probative value, since any
document which contains internal contradictions is rendered suspect, as
also is an account in the
Memorial which, while purporting to be based on that document, in fact differs f
rom it. Similarly
Cameroon's assertion that, where no date for an incident is given in a m
essage about it, the date of the
incident is to be taken as the same date as the date of the message, is
insufficient for present purposes.
The facts relating to many of the incidents alleged by Cameroon show tha
t in many instances the first
message about an incident is written only following some delay - sometim
es quite a significant delay -
after it is said to have occurred. State responsibility is not a matter
of approximate generalisation, but a
matter of very considerable specificity, and it is Cameroon's obligation
to establish its case in detail.
128
106. As Nigeria noted, the matter was "closed locally" in May 1989, and Cameroon had never mad
e
the incident the subject of any protest.129 Cameroon now asserts 130 that "by the time it produced its
Memorial in 1995, Cameroon had officially protested against the abduction and se
questration of its
citizen." But Cameroon produces no record substantiating the making of a
ny such protest (unless
Cameroon is suggesting that by raising this incident in its Memorial it was thereby 'protesting' against it:
but no such action constitutes a protest sufficient to establish a pre-existing claim against Nigeria).
Similarly, Cameroon's suggestion that an incident, despite being closed
locally, could still be alive
internationally,131 is an attempt to reopen already settled matters. International relation
s between States
which share lengthy common boundaries give rise to many minor local inci
dents which are settled
locally to everyone's satisfaction: to regard all these affairs as capab
le of springing back to life for
purposes of international claims is to create disputes where in reality
none exists.
Incident of 6 July 1992 (No. 32)
107. This incident is said to have involved the arrest of 4 Cameroon cit
izens by the Nigerian police in
132
Mandur Yang on 6 July 1992. In its Counter-Memorial Nigeria demonstrated that the evidence relied
on by Cameroon in its Memorial in support of this alleged incident was clearly inadequate to form the
basis for a claim of international responsibility on the part of Nigeria
: as Nigeria put it, "Cameroon's
account of the facts of this alleged incident is imprecise, inconsistent
, and unsubstantiated by reliable
evidence." 133 Nigeria also noted that the subject matter underlying the alleged incid
ent was of an
134
apparently local and private nature involving a claim to land, that there had been no protest by
Cameroon (ibid.), and that the affair, such as it was, appeared, even on Cameroon's ow
n account of the
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matter, to have been settled through local discussions (ibid.).
108. Cameroon, in its Reply, makes no serious attempt to answer Nigeria's contentions, asserting th
at
"Nigeria raises its usual objections as to the probative value of the do
cuments produced by Cameroon,
which do not need to be answered again". 135 Cameroon thus shows that it has failed to appreciate that
each allegation of international responsibility has to be separately est
ablished: whatever Nigeria may
have said in relation to other incidents, and whatever Cameroon may have said in response in relation
to
those other incidents, has no effect upon Nigeria's contentions in relation to this different incident or the
need for Cameroon adequately to respond to those contentions. Cameroon h
as failed - indeed, has not
even tried - to do so.
The Occupation of Tipsan by Nigeria (No. 30)
109. Cameroon's complaint about Nigerian actions at Tipsan is dealt with
in Chapter 16, paragraphs
16.47-16.54.
C. New allegations made by Cameroon in its Reply
110. Nigeria will now proceed to examine a number of allegations raised
by Cameroon for the first time
in its Reply. It will respond to these on their merits, on the basis of available do
cuments, leaving to one
side (a) Cameroon's apparent withdrawal of issues of State responsibil
ity as they relate to individual
incidents considered as such, 136and (b) any question of the admissibility of new claims of State
137
responsibility in terms of the Court's judgment of 25 March 1999. For convenience the following
account will deal separately with incidents in and around the Bakassi Pe
ninsula (paragraphs 111-181),
with incidents in Lake Chad (paragraphs 182-201), and with incidents a
long the land boundary between
these two areas (paragraphs 202-206). Within each of these sections, i
ncidents will be dealt with in
chronological order. 138
(i) New allegations in and around the Bakassi Peninsula
111. As to all of these allegations the point has already been made that
Cameroon's claims depend, inter
alia, upon its assertions as to the status of the Bakassi Peninsula itself.
Furthermore the existence of a
territorial dispute and of a civil administration on the disputed territ
ory is not as such a basis for
responsibility. These points apply to all those incidents discussed here
which occurred on territory title
to which is undetermined or in dispute. For reasons of economy they will
not be repeated on each
occasion.
Incident of 26 June 1964
112. Cameroon complains that, on 26 June 1964, Nigerian police intercept
ed a canoe in the Rio-del-Rey,
"in a fishery called Okomkiet, which features under the name 'Big Ekom'
on Cameroon maps of the
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Bakassi Peninsula". 139 The allegation concerns an incident said to have taken place over 36 ye
ars ago.
There is no evidence that Cameroon protested this incident at the time o
r subsequently. In these
circumstances, any claim in respect of this alleged incident is now barr
ed by lapse of time. 140
113. In any event, the circumstances of the alleged incident could not f
orm the basis of a claim of
Nigerian responsibility. Its location is given by Cameroon as Okomkiet,
which is a Nigerian settlement
located in the north-eastern part of the Bakassi Peninsula, an area unde
r Nigerian sovereignty and
control. The extent of this control is indicated by the two internal doc
uments produced by Cameroon in
support of its allegation.141These documents, from a Cameroon government source, imply that Nigerian
customs officers were openly carrying out patrols of the Peninsula. It m
ay also be noted that the
settlement concerned is referred to by its Nigerian name, Okomkiet, and
not by the name "Big Ekom"
which subsequently appears on Cameroon's maps. 142 In the circumstances, no significance is to be
attached to this isolated report so far as any question of responsibilit
y is concerned.
Incident of 15 February 1981
114. Cameroon also refers to "a new incursion" on 15 February 1981. 143 It is said that uniformed
Nigerian soldiers in four large motor ferries "entered the fishing settl
ements of Ene-Koi, Abana and
Inosi in the District of Idabato, properly armed". 144 The document relied upon by Cameroon for this
"new" allegation is a French translation of the English document appeari
ng immediately after it: this
seems to have originated with a Divisional Officer located in Isangele.
There is no indication as to the
original source of the information contained in the note, which refers t
o events which allegedly took
place some distance away in the Bakassi Peninsula (see Fig. 16.2). Indeed at certain parts of the note, the
author admits that his information is based on "a series of rumours" and
he uses phrases such as "it is
said", which show that his report was at best a second-hand one. Moreove
r the contrast presented is
between a "regular" and open Nigerian activity and Cameroon passivity, w
ith a population "indifferent"
to the concerns expressed by the Regional Officer. The picture presented
by the letter is not one of a
Nigerian incursion into areas administered by and under the sovereignty
of Cameroon.
115. Cameroon claims that the information contained in that note "ties u
p with" a telex dated 16
February 1981 which is allegedly cited in another telex of 20 February 1
981 appearing at Annex RC 61.
The abbreviated wording used in the latter telex is difficult to compreh
end, and it is not clear what other
message or messages are being cited. 145 The telex reports that the Nigerian army "has already built its
Inekon [Ine Ikoi] barracks and occupied houses in Abana". There is no su
ggestion as to the date on
which these incidents took place, but they are inconsistent with the all
egation of a later Nigerian
invasion of Bakassi in the 1990s.
116. Even if the allegation were taken as proved, it would not form the
basis of a claim of Nigerian
responsibility. The locations concerned are named by Cameroon as Ine Iko
i, Abana and Onosi, all of
which are Nigerian settlements located in the Bakassi Peninsula, an area
that at the relevant time was
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(and still is) under Nigerian sovereignty and control. The appearance
of Nigerian soldiers in these
settlements would have been entirely consistent with Nigeria's continuin
g administration of the Bakassi
Peninsula. The telex appearing at Annex RC 61 implies that army barracks
had been constructed at Ine
Ikoi some time before 20 February 1981, thus indicating that the Nigeria
n presence in Bakassi as at that
date was a continuing one. 146
117. So far as this "incident" is cited by Cameroon in a chapter on Stat
e responsibility, it is relevant to
point out that (a) the documents cited are merely internal; (b) no o
fficial protest is cited, and (c) the
incident, if it occurred at all, is nearly 20 years old.
Cameroon internal note of 30 April 1981
118. Cameroon refers to an internal note of 30 April 1981, which is said
to reveal that "Nigerian soldiers
had continued their infiltrations as far as Kombo Itindi and into Camero
on's oil installations." No
other document is provided, nor any evidence of the form these "infiltra
tions" took. The original reports
on which the verbal protest was presumably based are not produced, and n
o specific allegations are
made. The note focuses on areas outside Bakassi itself, viz., Kombo Itindi and Cameroon's offshore oil
installations. In fact there were Cameroon oil installations to the sout
h of Bakassi whose presence was
148
not taken to depend on sovereignty over the Peninsula itself. As to Kombo Itindi, this is a
Cameroonian settlement, located some 12 kilometres to the east of the Ba
kassi Peninsula. It has never
been claimed by Nigeria. It is possible that the reference to Kombo Itin
di is to the district or sub-
prefecture of that name. 149 It appears that the district of Kombo Itindi may extend as far west as
the Rio
del Rey, in which case it may be that the Nigerian soldiers were sailing
on the Rio del Rey. But
Cameroon provides no particulars.
119. Again, so far as issues of State responsibility are concerned, it i
s relevant to add (a) that no note
verbale or other document was transmitted to Nigeria, and (b) that the
allegation is nearly 20 years old.
Incident said to have taken place on 15 May 1984
120. Cameroon quotes from a document apparently dated 5 July 1984 (the
date is illegible), which
asserts that "an armed Nigerian police officer nonchalantly made his way
into our Country to arrest a
certain Christopher SOKARI, in the fishery of TINKORO, KOMBO ITINDI dist
rict on 15 May
150
1984." Cameroon has not identified the location of the village which is referr
ed to in the document.
Nigeria is not aware of any village by the name of "Tinkoro" situated in
the Bakassi Peninsula. There is
no such locality in or near Abana, despite the fact that the heading on
page 517 suggests that this
allegation is supposed to relate to an "incursion ... à Jabane". Came
roon maps show a village of "Tikoro"
situated about 7 kilometres to the east of the Bakassi Peninsula on the
Ndian River, and accordingly in
151
Cameroon.
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121. As to the single document produced by Cameroon in support of this a
llegation, this appears to
have been sent by the Minister of Territorial Administration, and was ap
parently based on information
passed on by the Governor of the South-West Province, presumably based i
n Buea. 153It is thus
reporting events at third hand. Cameroon gives no indication of the circ
umstances in which the arrest
took place, nor of any follow-up in relation to the allegation. There is
no information as to whether
Cameroon ever proceeded to obtain "clarifications" from Nigeria, or what
is supposed to have become of
Christopher Sokari (whose nationality is not stated). At more than 16
years remove, and in the absence
of any protest or any detailed indication of the circumstances, there se
ems nothing more that can
usefully be said.
Allegation contained in an internal document of 28 May 1984
122. Cameroon relies on an internal document of 28 May 1984, which claim
s that "three Nigerian
soldiers were seen in the house of Oron Chief of Inosi on the morning of
27/05/84 at about 8 a.m. ...
154
They later left and went over to Abana to meet their colleagues who were
waiting there...".
155
123. As to the single document relied on in support of this allegation, the following comments apply:
(a) Neither the text of the Reply nor the document itself gives an ind
ication of precisely
who the author of the document is or of the source of the information co
ntained in it.
(b) Although the three Nigerians soldiers were apparently in uniform,
they travelled in a
civilian boat, and did not carry any arms. It is far from clear whether
they were on duty:
from the fact (if it is a fact) that they were drinking gin and smokin
g marijuana, it may be
inferred that they were not.
(c) No description is given of the "colleagues" the three Nigerians we
re supposed to have
met in Abana (Jabane).
124. The locations specified are both within the Bakassi Peninsula, assu
ming that "Inosi" is a reference
to "Onosi", in the southwest of Bakassi. Apart from the confirmation of
the presence of Nigerian
military personnel at their ease in Bakassi, the Nigerian character of t
he Peninsula is further evidenced
by the reference to the Chief of Onosi as an "Oron Chief". Oron is the d
ivision of Nigeria's South-
Eastern State under which the Chief of Onosi was originally designated w
ithin the Effiat Clan. 156
125. So far as issues of State responsibility are concerned, it is relev
ant to add (a) that there is no record
of any protest being made to Nigeria, and (b) that this entirely trivi
al incident is said to have occurred
more than 15 years ago.
Allegations contained in an Internal Cameroon Note of 28 November 1984
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126. Cameroon refers to an "analysis" of recorded border problems contai
ned in a "Note on Cameroon-
Nigerian Border Dispute", produced by the Cameroon Ministry of Foreign A
ffairs on 28 November
1984. 157 Part 2 of the analysis, headed "Present Day Border Problems", lists app
roximately 16 matters.
Of these 16, Cameroon refers to four, but the author of the Note drew no
distinction between these four
and the other 12: he was arguing simply (and sensibly) that "in the ne
xt Nigerian-Cameroon Joint
Commission, the border problem should be looked into seriously so that a
solution should be found to
it". The four incidents which Cameroon selects from the miscellany conta
ined in the Note and elevates
to the status of complaints in the realm of State responsibility are as
follows:
"letter ... of 23/2/84 from the Ministry of Territorial Administration s
tated that the
elements of the Nigerian Army intercepted a canoe transporting goods of
Cameroonian
businessmen in Cameroonian Territorial waters and conducted it back to C
alabar ...
Telex n_102 revealed that on 25 July 1984 a combined team of the Nigerian Navy,
Police and Customs anchored in two speed boats in Mudemba and proceeded
to Isangele,
Idabatu Ngosso II and Opopo fishing ports. They indoctrinated Nigerian c
itizens resident
there not to pay taxes to the Cameroon government...
Telex n_106 revealed that on 23 July 1984, three Nigerian soldiers in a
flying boat came
to Opopo and threatened the lives of certain Cameroonian citizens.
Telex of 12/11/84 from the Governor of the South West Province revealed
that the
Nigerian Navy is stationed around Koumbo in ABEDEMO Sub Division and is
sea
monitoring the movement of boats and canoes at the creeks."
But Cameroon has failed to provide sufficient details in respect of any
of these four alleged incidents to
support its claim, as will now be demonstrated.
127. As to the first of the four allegations, no indication of the date or precise location
of the alleged
incident has been provided by Cameroon. The reference to "territorial wa
ters" tells us little; in February
1984 Cameroon claimed a 30 n.m. territorial sea (increased to 50 n.m. l
ater that same year). The
"businessmen" in the canoe could have been almost anywhere doing almost
any kind of business. The
letter of 23 February 1984 is not provided. On the face of it this is a
trivial incident unrelated to any
territorial issue before the Court.
128. As to the second of the allegations, Cameroon has failed to identify with precision any
of the
locations referred to: Isangele and Mundemba are both large sub-division
s of Cameroon, and Nigeria is
not familiar with Opopo. It is not clear what the author of the document
understood by the curious
compound expression "Idabatu Ngosso II": of course "Idabato II" is the C
ameroon name for East
Atabong, but Nigeria is not aware of an "Idabatu Ngosso II" or even a "N
gosso II". If the reference is
to Nigerian settlements on Bakassi, it is not surprising that the releva
nt Nigerian officials "indoctrinated"
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the Nigerian civilians not to pay taxes to Cameroon. But in the absence
of any specific information and
having regard to the subsequent lapse of time, Nigeria is unable to say
whether these events occurred or
what precise form they took.
129. As to the third of these allegations, Nigeria again notes that the location of the alle
ged incident,
Opopo, has not been properly identified by Cameroon, nor have any partic
ulars of the alleged incident
other than its date, 16 years ago.
130. As to the fourth allegation, Nigeria notes that the document quoted is almost certainly
erroneous in
referring to a location by the name "Koumbo in ABEDEMO Sub-Division". Th
ere is no Cameroonian
Sub-Division bearing that name, so far as Nigeria is aware. It may be th
at the author of the document
merely misunderstood a reference in some other report to "Kombo Abedimo
Sub-Division", which is the
name now given by Cameroon to a geographical area which includes part of
the Bakassi Peninsula; this
error does not suggest much familiarity with the locality. In any event
Cameroon has failed to specify
the precise location of the alleged incident, which is merely said to ha
ve taken place "around" Kombo
Abedimo Subdivision. Again the allegation is wholly unspecific and is co
nsistent with lawful
monitoring of traffic at sea which would fall within the responsibilitie
s of any navy. The presence of
Nigerian naval personnel in the area is clearly not, as such, a matter w
hich could be said to involve the
international responsibility of Nigeria.
131. Turning to the Internal Cameroon Note of 28 November 1984, 159 which transcribes these four
allegations as well as the twelve others, it is not clear for whom or in
what circumstances the Note was
written. None of the original telexes or letters to which the Note refer
s have been produced by
Cameroon in its Reply, and there is no indication of the original source of the information c
ontained in
160
them.
132. These four allegations are old, stale and vague, as well as unsuppo
rted by first hand accounts. They
do not seem to have been the subject of any bilateral protest at the tim
e, and it is submitted they add
nothing to Cameroon's case on State responsibility.
Allegation contained in an internal message of 22 February 1985
133. Cameroon relies on another internal Cameroon telegraphic message, w
hich refers to the alleged "...
presence on 14 February 1985 in Navanga II in the Rio Del Rey stop of a
Plascoa of the Nigerian Navy
161
with 4 sailors...". Again Cameroon does not identify the precise location in question. Came
roon maps
do however show a village "Nawango II", the original Nigerian name of wh
ich is Ine Mba. 162It is on
Hecuba Creek, 3 miles west of the Rio del Rey. Since Nigeria was in peac
eful occupation of Bakassi at
the time, it would not be surprising that a Cameroon supply vessel in th
e Rio del Rey may have sighted a
Nigerian boat with naval personnel. There is no suggestion from the repo
rt cited by Cameroon (which is
a second-hand report; the original is not supplied) that the boat was e
ngaged in any unlawful or harmful
activity. No protest was forthcoming at the time, and it is far too late
now to raise a mere sighting of
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naval personnel in 1985 as a basis for State responsibility, even if the
other conditions for State
responsibility had been met (which is not the case).
Allegation contained in a Note of 7 October 1985
134. Then Cameroon quotes from a Note dated 7 October 1985 addressed by
the Cameroon Ministry of
Foreign Affairs to the Nigerian Embassy in Yaounde. It asserts that:
"On 15 July 1985, two armed Nigerian soldiers made their way into Camero
onian territory
and arrested a Nigerian housewife, Mrs. BOUBOU who was living in AFAGBA
II, Sub-
163
Prefecture of ISANGELE, in the Département of the Ndian."
Apparently the two soldiers took Mrs. Boubou to Ikang. It is also record
ed that they subsequently
attempted to arrest her husband, Mr. Wilson Monday, with the assistance
of a Nigerian guide, Mr. Kari,
"who lives in Abana": Mr. Monday nonetheless succeeded in escaping from
them.
135. Cameroon has not identified the location of "Afagba II". Nigeria is
not aware of any village of this
name in the Bakassi Peninsula; there is no such village in or near Abana
. 164Nor has Cameroon provided
any evidence that the alleged incident actually took place. The Note of
7 October 1985 provides no
indication of the source of the information on which the allegation was
based, or of the underlying
circumstances.
136. So far as issues of State responsibility are concerned, it is relev
ant to note (a) that there is no record
of any protest being made to Nigeria (the note of 7 October 1985 can in
no way be regarded as the
making of a protest), and (b) that this trivial incident is said to h
ave occurred some 15 years ago.
Allegation contained in a Note dated 24 February 1986
137. Cameroon purports to quote from a Note sent by the Cameroon Ministr
y of Foreign Affairs to the
Nigerian Embassy in Yaounde as follows:
"A trawler of the Cameroonian company CHALUTCAM was inspected by the Nig
erian
navy in Cameroon's territorial waters on 19 February 1986 at 10.30a.m. (
CALABAR
river, 5 miles from SANDY point and 1 mile to the South at approximately
8_25'
longitude EAST and 4_33' latitude North).
Furthermore, Nigerian soldiers intruded onto the trawler and forced the
crew to follow
them to Calabar." 165
The Note itself however refers to the relevant longitude as 8_ 23' E, no
t 8_ 25' E.
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138. It should be noted that for the vast majority of allegations involv
ing incidents at sea, made by
Cameroon, geographical co-ordinates are not provided and the Court is gi
ven only the vaguest
indications of locality, or none at all. In the present case, where Came
roon does give co-ordinates, the co-
ordinates place the location squarely within Nigerian territorial waters
(see Fig. 16.3). In fact the point
identified lies in the Calabar Estuary, nearly 4 kilometres to the west
of point 10 of the maritime
boundary line claimed by Cameroon. 166
139. Wherever the arrest may have occurred, far too little information i
s given for any claim of State
responsibility to be sustained. The Cameroon Note of 24 February 1986 do
es not provide any indication
of the source of the information, nor does it specify the name of the Ca
meroonian trawler allegedly
involved. The point of the Note is to seek the release of the trawler: C
ameroon does not bother to say
whether and when it was released. The incident took place, of course, ne
arly 15 years ago. On the
information provided there is no basis whatever for establishing the int
ernational responsibility of
Nigeria with respect to this incident.
Allegation contained in a Note dated 12 July 1986
140. Cameroon quotes from another Note sent by the Cameroon Ministry of
Foreign Affairs to the
Nigerian Embassy in Yaounde on 12 July 1986, as follows:
"In the morning of 19 February 1986 at 10.30 a.m., the Cameroonian trawl
er 'MUNGO'
fishing fully within Cameroonian territorial waters (4_31' latitude Nor
th and 8_28'
longitude E, 1 mile to the South of the ELF AONT point and 2.8 miles awa
y from the
coast at Sandy Point East) was assailed and inspected by armed Nigerian
soldiers.
Subjected to abuse, curses and threats, the Cameroonian trawler and all
of its crew were
led under escort to Calabar." 167
In its Reply Cameroon presents this as another separate incident, showing "once more
that Cameroon's
territorial waters had been violated". It may be noted, however, that:
(d) The Note is dated 12 July 1986, nearly 5 months after the incident
referred to.
(e) It is clear from the details given - namely that it involved the i
nspection of a
Cameroonian trawler by Nigerian authorities at 10:30 am on 19 February 1
986, and the
subsequent escorting of the trawler to Calabar - that the incident descr
ibed is the same as
168
that described in the Note of 24 February 1986, which has already been d
iscussed.
(f) The only difference between the two accounts is the location of th
e incident. The new
set of co-ordinates given identifies a location nearly 9 km to the south
east of the point
identified in the previous Note.
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141. Cameroon does not explain why its Ministry for Foreign Affairs sent
a Note alleging the same
incident as that alleged in its Note of 5 months earlier, nor why it pro
vided a different set of co-ordinates
for the incident. It accepts that the vessel was released 24 hours later
, though apparently without its
cargo. No details are given of any charges that may have been laid again
st the vessel, and the note makes
no claim for reparation.
142. Even if the second version of this incident is the correct one (an
d there is no basis for saying which
of them is correct),169 and even if (quod non) the vessel was seized in Cameroon waters, there would be
no basis for a claim of responsibility now, 15 years later, based on sca
nty and conflicting assertions and
on no direct evidence.
Allegation contained in an internal telex of 12 February 1987
143. Then Cameroon quotes from an internal telex to the effect that "two
Nigerian police officers in
uniform from Iket police station Cross River State [were] arrested here
yesterday 31/1/87...". No 170
indication is given as to where "here" is supposed to have been, or of t
he circumstances in which the
named Nigerian policemen are supposed to have been arrested (for exampl
e, whether they were
purporting to exercise their police powers). The telex referred to by C
ameroon fails to mention where
the arrest occurred or why. The message quoted in the telex is said to b
e dated 6 February 1987;
however, this is contradicted by the text of the message, which indicate
s that it was sent on 1 February.
There is no indication of any subsequent investigation by Cameroon, of a
ny correspondence with
Nigerian authorities, or of when or on what basis the policemen were rel
eased. In the absence of such
information the allegation does not even begin to raise questions of Sta
te responsibility on the part of
Nigeria, quite apart from the lack of any intergovernmental protest and
the delay of 13 years since the
incident occurred.
Allegations contained in a telegraphic message dated 30 October 1990
144. Cameroon quotes an internal telegraphic message of 30 October 1990,
which includes the
following allegations:
"Occupation fishery Jabane in Idabato district by Nigerian Navy since 02
.10.90 ended
7.10.90..."
"... 17.3.90 stop attempted capture Isangele Sub-Prefect off Rio del Rey
by a Nigerian
'water Police' patrol ..."
"...12 to 13.8.90 stop occupation Jabane by Nigerian troop in 6 boats st
op threats and
plundering stop..."
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"... 2 to 7.10.90 stop further occupation by navy units led by an office
r..."
172
In addition, it refers to an alleged incident of 7 March 1990, which has
already been dealt with.
Although there remain four items listed in the passage above, the fourth
is plainly the same as the first,
and there are accordingly three. Something should be said about each of
them.
145. Concerning the first allegation (relating to the period 2-7 Octobe
r 1990), this appears to assert
"occupation" of Abana by a naval unit under regular command, i.e. a regu
lar patrol. There is no
indication that it was opposed. As to the second allegation, no informat
ion is given by Cameroon
concerning the precise location of the alleged incident; it is not suffi
cient to describe the location as
somewhere "off Rio del Rey". Nor has Cameroon provided any details of th
e circumstances in which the
"attempted capture" is supposed to have taken place, or what this "attem
pt" involved. As to the third
allegation, the expression "threats and plundering" is almost devoid of
detail: there is no indication of
who is supposed to have made the "threats" and carried out the "plunderi
ng", or the precise nature of
these activities. The author of the message notes that the inhabitants o
f Abana are "97% Nigerians".
146. Concerning all of the allegations, Cameroon has not provided any ot
her evidence than the
telegraphic message. It is an internal Cameroon message sent by the Secr
etary of State for Defence,
presumably based in Yaounde. The author provides no indication of the so
urces of the information
contained in the message. The message was not sent until 30 October 1990
, over seven months after the
date of the first alleged incident.
147. So far as issues of State responsibility are concerned, it is relev
ant to add that (a) there is no record
of any protest being made to Nigeria about any of these incidents, and (
b) if they occurred, they are
about 10 years old.
Allegation contained in a telegraphic message of 7 December 1990
148. Cameroon quotes from the telegraphic message, noting a "meeting hel
d in Jabane on 17/11/90 by
13 ... Nigerian sailors and police as well as certain civilians with pop
ulation of Jabane and Kombo
Amunja...". 173 The telegraphic message is the only evidence advanced by Cameroon to su
pport this
allegation. The message appears to have been sent by the Ministry of Ter
ritorial Administration in
Yaounde. Although it appears to have been based on a message received fr
om the Governor of South
West Province (presumably based in Buea 174), Cameroon has not produced either a copy of the latter
message, nor of any other message upon which that message was itself bas
ed. Furthermore, the
document does not reveal who the original so-called "reliable source" of
the information was. Evidently
it was not an official source, which is hardly surprising since Abana wa
s (and is) under the peaceful
control and administration of Nigeria.
149. Cameroon gives the impression that it protested to Nigeria concerni
ng this particular incident. 175 In
176 177
fact the documents referred to are dated over 2 months and 6 months later, and make no reference
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to the specific incident alleged in paragraph 11.110.
150. It is the case that the Nigerian civil administration of Bakassi ha
s been in place since well before
December 1990, assisted from time to time by naval, military or police d
etachments. Meetings such as
those referred to would be a normal incident of such administration. The
y do not, as such, form a basis
for any allegation of State responsibility.
The incidents of February 1996
151. Cameroon makes certain allegations concerning the events which took
place in February 1996 on
the Bakassi Peninsula, after the commencement of the present case. 178 Many of these allegations were
advanced by Cameroon previously, in the context of its Application to the Court for the Indication of
Interim Measures, which was heard by the Court in March 1996. In particu
lar, Cameroon persists with
its claim that "on the 3rd day of February 1996, Nigeria launched attack
s against Cameroon military
179
positions all along what was at the time the cease-fire line in the Baka
ssi Peninsula."
152. To the extent that it suggests that Nigeria launched unprovoked att
acks against Cameroon on that
180
date, this allegation is untrue. Firstly, there was no cease-fire line i
n existence in Bakassi at that time,
and Cameroon produces no evidence of one. Secondly, as Nigeria pointed o
ut at the March 1996
hearing, it was Cameroon which launched an unprovoked attack on pre-exis
ting Nigerian positions in
Bakassi on 3 February 1996.
153. It will be recalled that at the March 1996 hearing, Nigeria made se
veral general observations
regarding the inadequacy of the evidence supporting Cameroon's version o
f events. There is no need to
repeat what was said on that occasion. 181 In rehashing in its Reply its allegations concerning the events
of 3 February 1996, Cameroon relies on three annexed documents. These do
not improve its case, and in
particular not one of the documents appears to have been generated on Ba
kassi itself.
154. First, Cameroon relies on the testimony of a certain Captain Jean-P
ierre Meloupou who was
182 183
allegedly "present at the scene". It refers to his affidavit, which is annexed. As to this affidavit, the
following comments apply:
(g) Cameroon describes the affidavit as "sans date". In fact it is dat
ed, but the date is
illegible. Evidently Cameroon did not have access to the original at the
time it filed its
Reply.
(h) In the absence of a date, it is difficult to tell whether the docu
ment is contemporaneous
or was prepared for the purposes of the pleadings.
(i) Only one page of the affidavit, plus the (partly illegible) fina
l page are annexed.
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(j) The affidavit refers to the landing of a Nigerian helicopter in an
area occupied by
184
Nigerian forces. This is described by Cameroon as "unusual air movements
", without
further explanation.
(k) The affidavit does not support the conclusion that the alleged Nig
erian attack was
"unprovoked". From the information provided (and not provided), it cou
ld just as well
have resulted from a challenge by Cameroon to the territorial status quo
.
155. Two further documents, both dated 3 February, are relied upon by Ca
meroon: these are described
185 186
as a radio message and a telegram. Both are said to have been sent by "the local Gendarmerie" and
to have provided information about "the Nigerian attack". However:
(a) Although Cameroon claims that the messages were sent by "the local
gendarmerie",
the documents purport to have been sent from Buea, located nearly 80 kil
ometres from the
Bakassi Peninsula. 187
(b) There is no indication in either of the messages that the attacks
referred to in the
messages were unprovoked.
(c) Cameroon claims that the "3 suspects arrested" were three sailors
captured in a
188
Nigerian boat just before the opening of hostilities. It is not explained why these
individuals, supposedly arrested before the "surprise attack" took place
, were regarded as
"suspects".
(d) Although Cameroon claims that on 3 February 1996 Nigeria launched
an large-scale
attack "all along what was at the time the cease-fire line in the Bakass
i Peninsula", one of
the annexed messages reports that "calme relatif regne ensemble notre
189
circonscription" ("our whole district is relatively calm").
(e) The messages are clearly not first-hand accounts of what is allege
d to have taken
place, and they give no indication of their sources of information. The
urgency of the
situation is further called into question by the statement in Annex RC 2
03, "situation
suivie" - the situation was being followed.
156. In short, despite the passage of over four years since Cameroon fir
st made its allegations
concerning the events of 3 February 1994, Cameroon has still not managed
to produce any credible
evidence to support its version of events.
157. At the oral hearing of Cameroon's Application for the Indication of Provisional Measures, Nigeria
demonstrated very clearly that it was Cameroon which had launched an unp
rovoked attack against
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Nigeria on that day. 190For the convenience of the Court, that demonstration will be summarised
here.
158. On market day, Saturday 3 February 1996, at about 12:00 noon, witho
ut warning or provocation,
191
Cameroon forces attacked the village of West Atabong with a barrage of artillery. The attack was
directed not only at the Nigerian military post located in the village,
but also at the market in West
Atabong, at which many Nigerian civilians were trading. The attack was r
ecorded in a message which
was sent by the West Atabong military post (the 146th Battalion Headqua
rters) at 1435 hours on the day
of the attack, to the Headquarters of the 13th Motorised Brigade in Cala
bar. The message was sent
whilst the military post was actually under attack. It reports on the si
tuation as follows:
"Sit[uation] Rep[ort]. At about 1200 [hours] 03 Feb[ruary] [19]96, the C
amerounian
military had infiltrated thru the creeks to about 600m to own pos[ition]
s with mor[tar] and
high velocity w[eapo]ns from their gun boats. The shelling is still cont
inuing and the
market is also a target. Cas[ualties] not yet known. You are please urge
ntly required to
auth[orise] quick response to their attacks. As at present, own t[roo]ps
on alert awaiting
your orders. Treat as most urgent. Ack[nowledge]" (Annex NR 196) 192
The message was clear. Cameroon was shelling both the Nigerian military
post and the market in West
Atabong, with mortars and high velocity weapons. The shelling, which had
started at approximately
midday, was still in progress as at 1435h, at which time the military po
st was seeking authority to
respond.
159. Cameroon seeks to explain that the report that the Cameroon militar
y had "infiltrated" was an
incorrect perception of certain Cameroon soldiers, who were on a beach i
n the Bakassi Peninsula for
193 194
"relaxation purposes". Yet a contemporary message from the precise locality perceived their
activity as an infiltration accompanied by shelling "with mortar and hig
h velocity weapons from their
gun boats". This was a curious form of relaxation. Furthermore, Cameroon
's inference that Nigerian
forces had already started shelling is not only without any basis (the
reference in the text to "the
shelling ... still continuing" is clearly a reference to the Cameroon at
tack), but is contradicted by the
request at the end of the message for authority for the Nigerian forces
to respond - indicating that they
had not yet done so.
195
160. Cameroon's attack continued for a period of some hours. Nigeria's response was limited in scope
and proportionate to the need to defend the locality and its Nigerian ci
vilian population. The response
was only made after authorisation had been received from Nigerian Defenc
e Headquarters. This
authorisation, sent at 1730h, read as follows:
"You are to maintain your pos[ition] repulse Camerounian att[ac]k and [l
ose] no ground.
You should send 6 hourly sit[uation] rep[orts]. Acknowledge." (Annex NR
197)
In the event, the Nigerian response appears to have succeeded in bringin
g the Cameroon attack to an
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end, but not before Nigeria suffered many casualties. A message to Headq
uarters on the following day at
1300h reported on the situation:
"...Sit[uation] Rep[ort] as at 1200 [hours] 04 Feb[ruary] [19]96. Camero
unian att[ac]k has
been repulsed and driven out of own pos[itio]n area. Cas[ualties]: Civil
ians - k[illed] i[n] a
[ction] - 10, w[ounded] i[n] a[ction] - 20. T[roo]ps - k[illed] i[n] a[c
tion] - 2 and w
[ounded] i[n] a[ction] - 3. ..." (Annex NR 198)
Thus what Cameroon presents as a carefully prepared surprise attack by N
igeria killed or wounded 30
Nigerian civilians.
161. Once again Cameroon seeks to propose an odd and self-serving interp
retation of this seemingly
196
clear message, arguing that the expression "own pos[itio]n area" is somehow intended t
o mean
"Cameroon's position area". This assertion is baseless:
(f) It is inconsistent with the context. If the author of the message
had intended to refer to
Cameroon, he would have used some term such as "Camerounian" or "en[emy]
".
(g) The word "own" (an abbreviation of "our own") is used for brevit
y in Nigerian military
correspondence to mean "Nigerian" or "of the Nigerian military", as comp
ared with
"en" (meaning "enemy"). 197
(h) In any event, the import of the message is that the Nigerian respo
nse to the Cameroon
attack had driven the attackers away from the area where the attack was
launched.
162. This version of events is also borne out by the terms of the prompt
Nigerian protests delivered
198
orally and in writing in the days that followed. It is clear from the evidence that the incident of 3
February 1996 engages the international responsibility of Cameroon, not
Nigeria: the incident is
199
accordingly cited as the basis of one of the Nigerian counterclaims.
163. Cameroon seeks to rely on a document which in its view demonstrates
the extent of the Nigerian
200
"occupation" of Bakassi at this time. The document is of no evidential value:
(i) It is undated.
(j) There is no indication of the author's identity.
(k) The document is a mere compilation of events said to have taken pl
ace over a period
of thirty years, and no indication is given of the sources relied upon.
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(l) It complains of such matters as the opening by Nigeria of a health
centre at Abana
201
(Jabane), which is hardly consistent with a contemporaneous military occupation o
f
foreign territory.
164. Cameroon seeks to make out of some individual allegations of incide
nts said to have occurred after
3 February 1996 a claim of a concerted "Nigerian advance". But the passa
ges in question 202 give no
details about when and where this advance is supposed to have taken plac
e. Indeed with one possible
exception, neither the text nor the documents relied on refer to the Nig
erian military forces having
undertaken any movements whatsoever. The possible exception is an allega
tion relating to the town of
Isangele, north-east of Bakassi and in Cameroon, which Nigeria does not
claim, has never "advanced
203
upon" and has never occupied or sought to occupy. This allegation is, in any event, not substantiated:
the author of the message, based in Buea, appears to be quoting a messag
e from the Prefect of Ndian
204
Division, presumably based in Mundemba, located approximately 30 kilomet
res from Isangele, which
gives no indication of the original source of the information it contain
s.
165. Cameroon alleges that "by the end of February 1996" five villages h
ad "fallen into the hands" of
Nigerian soldiers. 205But the document 206 upon which this assertion is based gives no details of any
attacks supposed to have been carried out by Nigeria. It merely indicate
s that as of 23 February 1996,
Nigerian forces were in occupation of a number of specified villages in
the Bakassi Peninsula. There is
no suggestion in the document that the presence of these Nigerian forces
in these villages was the result
of force being used to dislodge Cameroon forces. As Nigeria has explaine
d previously to the Court, none
of these villages was an established Cameroon military position. 207
166. Neither do the two other documents referred to by Cameroon give det
ails of the alleged attacks.
The letter sent by the Cameroon Minister of Foreign Affairs to his Niger
ian counterpart refers to an
"attack" which allegedly took place on 17 February 1996, but fails to sp
ecify the location(s) of that
"attack".208 The letter of 26 February 1996 sent by the Cameroon Minister of Foreign
Affairs to the
209
President of the Security Council does not provide any further details of the alleged attack, either.
167. Cameroon's allegations concerning these attacks are unfounded. As e
xplained by the Nigerian
Minister of Foreign Affairs in a letter to the President of the Security
Council of 26 February 1996, 210
Nigerian troops did not initiate any attacks whatsoever on Cameroon posi
tions in Bakassi; it was
Cameroon which had launched a number of attacks. These attacks included,
for example, the helicopter
attacks on Edem Abasi 211 which took place on 16 and 17 February 1996. 212
168. Nigeria is mindful of the Court's remarks, in its Order of 15 March
1996, that the material before it
213
did not enable it "to form any clear and precise idea" of the events of
February 1996. In this context it
should be noted that in the intervening period and despite extensive ple
adings, regular and irregular,
Cameroon has signally failed to present convincing, non-contradictory fi
rst hand evidence of what
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happened at that time. By contrast Nigeria has presented first hand acco
unts from the spot on the day of
3 February, accounts that Cameroon can only seek to refute by asserting
that its soldiers were present for
214
"relaxation purposes", or that a Nigerian document referring to "own position" means "Cameroon
's
own position". 215 An argument reduced to these straits is not convincing. Above all it sh
ould be noted
that it was Nigerian civilians who were killed on 3 February, as well as
Nigerian soldiers defending
them. That has become the regrettable pattern on Bakassi since.
169. It was Cameroon's decision to convert this territorial dispute also
into a State responsibility case. Its
position is unequivocally that of Applicant, and it has a corresponding
burden of proof, to which it
should be strictly held. In Nigeria's respectful submission it has not d
ischarged that burden, whether with
respect to the events of February 1996 or more generally.
Allegation concerning attacks said to have been carried out in April 199
6
170. Cameroon repeats in its Reply four allegations which it had made in its so-called "Memorandum on
Procedure", relating to Nigeria's alleged non-compliance with the Court'
s Order of 15 March 1996. 216
Nigeria has already noted that it does not intend to respond to every mi
nor allegation made in that
"Memorandum". It will, however, respond in this and succeeding paragraph
s to the four allegations
made in the Memorandum which are repeated in Chapter 11 of the Reply. 217
171. The first of these alleged incidents is described in the Reply as involving...
"... military attacks launched by the Nigerian troops armed with heavy m
achine-guns and
mortars on the Cameroonian positions in Inuamba and Benkoro, to the Sout
h of the
218
Bakassi Peninsula, on 21, 22, 23, 24 and 25 April 1996..."
172. The allegation is set out in slightly more detail in the "Memorandu
m on Procedure", which refers to
219
a number of documents. An examination of these reveals that the allegation is unsubstantiated.
(a) The first is a telegraphic message apparently dated 25 April 1996,
sent by the "Head of
the National Security border station" in Ekondo-Titi in Cameroon. 220Although the
message refers to a Nigerian attack, it does not indicate that the attac
k took place in the
places mentioned in the "Memorandum". It gives no indication of the alle
ged date or dates
of the attack, but instead postulates a single date when "dits affrontme
nts auraient
commencé" ("the said confrontations would have begun"; emphasis added). It is unclear
when these subjunctive attacks took place. Moreover the message gives ve
ry little detail
concerning the circumstances of the alleged attacks, and in particular d
oes not indicate
that they were unprovoked. The statement that Nigerian forces apparently
suffered heavy
losses, whilst Cameroon suffered none, does not support the thesis of a
surprise attack by
Nigeria; quite the contrary. In any event, the message originated in Eko
ndo-Titi, nearly 40
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kilometres from the Bakassi Peninsula 221: it does not identify the original source of the
information it contains, and is thus a second-hand or third-hand report.
(b) The second is a newspaper article which quotes an undated press re
lease delivered by
222
the Cameroon Minister of Foreign Affairs. It provides no independent confirmation of
any fact.
(c) The third is a letter dated 30 April 1996 sent by the Cameroon Min
ister of Foreign
Affairs to the President of the Security Council. 223 Like the second, it makes no attempt to
identify any sources. Neither document asserts that the alleged Nigerian
attacks were
carried out without provocation.
224
(d) Two further documents are internal letters of 7 and 8 May 1996 sent by the Minister
Delegate to the Presidency in Charge of Defence in Yaounde to the Camero
on Minister of
Justice. They make no attempt to identify any sources for the allegation
s contained within
them, and are essentially self-serving. Indeed the title of the second l
etter is "Gestion
médiatique de la Crise de Bakassi" ("Media Management of the Bakassi
Crisis"). In the
circumstances, Nigeria submits that no particular weight should be attac
hed to these
documents.
(e) The internal letter of 7 May 1996 225 implies that a village called "Guidi Guidi" was
one of the positions attacked during the alleged incident of April 1996.
Elsewhere in its
Reply, however, Cameroon asserts that as of the end of February 1996, "G
uidi Guidi" was
226
already "in the hands" of Nigerian forces.
227
(f) The internal letter of 8 May 1996, in conformity with its purpose of media
management, is extremely brief and vague. It says nothing about the loca
tion of the
alleged attacks.
(g) Two further annexes 228 contain extracts from Nigerian newspapers dated 8 and 10
May 1996. They do not support the version of events maintained by Camero
on. In fact,
the extracts refer to unprovoked attacks by Cameroon on Nigeria's positi
ons, and suggest
that Nigeria had been careful not to react to Cameroon's attacks.
173. Indeed, it was Cameroon which launched attacks against Nigerian pos
itions during the period
between 21 April and 1 May 1996. These attacks were the subject of compl
aint in a letter dated 21 June
1996, sent by the Nigerian Minister of Foreign Affairs to his Cameroon c
ounterpart: they are also the
229
subject of a Nigerian counterclaim.
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174. For all these reasons, in addition to those matters of general prin
ciple raised in Chapter 15 above,
Nigeria submits that Cameroon has not established its complaints in resp
ect of the alleged attacks of
April 1996 any more than those of February 1996. On the contrary, the we
ight of the evidence suggests
that Nigerian forces were reacting to attacks launched on them in an att
empt to disturb the territorial
status quo.
Allegation concerning an incident of 11 December 1996
175. The second of the four allegations referred to in paragraph 11.162
of the Reply involves the
following allegation:
"... during the day of 11 December 1996, the Nigerian forces harassed th
e Cameroon
positions with automatic arms and mortar fire, with these latter refrain
ing from returning
230
fire..."
176. Neither in its "Memorandum" nor in its Reply does Cameroon identify the precise location where
this action is alleged to have been carried out by "the Nigerian forces"
. The only document relied on is a
"courier message" of 13 December 1996 sent by the Minister Delegate to t
he Presidency in Charge of
Defence in Yaounde to various Cameroon Ministers. 231The document provides hardly any details of the
alleged incident, beyond the scanty information in the "Memorandum". It
does, however, contain an
inconsistency concerning dates: the text of the message suggests that it
was sent on the day the incident
occurred, but the message is dated 13 December, not 11 December. The doc
ument does not identify any
sources for its allegations, and it is self-serving and of little eviden
tial value.
Alleged incident of 31 January/1 February 1997
177. The third of the four allegations referred to at para. 11.162 of th
e Reply is said to have involved
"attempted infiltrations accompanied by shelling during the night of 31
January to 1 February
1997...".232 The allegation is also presented in the "Memorandum", 233 which, however, provides no
further information. It is completely unclear where the incident is supp
osed to have taken place, and no
direct evidence of any sort is produced. In short, Cameroon has not prod
uced any evidence to support
this allegation.
The provision of water and electricity to "localities occupied by Nigeri
an forces"
178. The last of the four allegations referred to at paragraph 11.162 of
the Reply is expressed as having
involved "[t]he carrying out of work to provide electricity and lay on w
ater in the localities situated in
Cameroon territory but occupied by Nigerian forces since the events of F
ebruary 1996..." The
"Memorandum" sets out the allegation in slightly more detail. It claims
that:
"After the inauguration of the Akwa water canalisation on 3 June by the
Military
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Administrator of Cross River State ... the Governor of Akwa Ibom State i
nitiated a similar
project at Jabane (Abana) in the district of Idabato. The Minister of
External Relations
immediately protested against this new project... The electrification wo
rks and laying on
234
of water nevertheless began in December 1996."
179. Before examining the documents Cameroon refers to in support of the
se allegations, two points
should be noted.
(h) Nigerian forces have not "occupied" Abana and Akwa "since the even
ts of February 1996".
Nigeria has always administered these settlements, and even Cameroon's o
wn pleadings contradict
this statement elsewhere, by asserting that these two villages were alre
ady occupied by Nigeria
from the beginning of 1994. 235
(i) In the face of Cameroon's statement that the water project in Aban
a began in December 1996,
it is not at all clear in why the "initiation" of the project was the subject of a Note dated three months
earlier.
180. Cameroon refers to three annexes in support of its allegations. 236 It is not necessary to engage in a
detailed analysis of the inadequacy of the documents in question, since
the allegation could not, on any
view, constitute a breach of the Court's Order. It is sufficient to draw
attention to the following points:
(j) Some of the allegations contained in the "Memorandum" are not refe
rred to in any of
the documents: for example, the documents make no mention of statements
attributed by
Cameroon to the Military Administrator of Cross River State.
(k) Although Cameroon states that electrification and water works bega
n in Abana in
December 1996, the documents appearing at Annexes MC/P 38 and MC/P 40 su
ggest that
a water project began on 25 July 1996, and that the electrification of A
bana had already
taken place as at that date.
(l) It is not at all clear why, having sent a Note Verbale to the Nige
rian Embassy on 12
September 1996 concerning the provision of these utilities in Abana (An
nex MC/P 40),
the Cameroon Ministry of External Relations sent another Note on 12 Dece
mber 1996,
237
which simply repeats the same allegation, in even less detail.
181. In any event, the provision of social amenities and utilities is a
clear governmental responsibility to
the local population. The provision of basic facilities to the Bakassi P
eninsula has been carried out in
order to ensure the health and welfare of the Nigerians living there und
er Nigerian administration.
Cameroon fails to explain how the extension of additional civil faciliti
es to Nigerians living on the
Peninsula contravenes the Court's Order of 15 March 1996. It involves no
action by Nigerian armed
forces, and therefore does not contravene paragraphs (2) or (3) of t
he Order. It is irrelevant in terms of
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the evidentiary position before the Court and therefore could not contra
vene paragraph (4). It does not
prejudice the rights of either party in respect of the underlying disput
e, or extend the dispute itself. A
dispute about sovereignty over an area is not extended or aggravated bec
ause of a modest development
of civilian facilities in that area. If Cameroon chooses to see in the p
rovision of water and power an
aggravation of the dispute, this can only be because it has no interest
in the welfare of the residents (to
whom it has never provided such services at any time of its alleged "adm
inistration"). 238 Nigeria's
conduct therefore does not contravene paragraph (1). In Nigeria's view
, it was not the intention of the
Court in its Order of 15 March 1996 to prohibit continued civil administ
ration of areas already occupied
239
by Nigeria, or the provision of basic facilities to the substantial Nige
rian population resident there. If
Cameroon took the other view it was at all times open to Cameroon to go
back to the Court for
clarification of the existing Order or to seek an express extension to c
over acts of ordinary civil
administration.
(ii) New allegations made by Cameroon concerning the Lake Chad area
182. Nigeria turns next to the new allegations made in Cameroon's Reply
concerning the Lake Chad area.
Alleged incidents involving flags
183. Cameroon refers to "the removal of Cameroonian flags and their repl
acement with Nigerian flags"
and purports to give examples of occasions when "incidents of this kind"
took place as long ago as 1984
240
and 1987. Of course, under modern international law, sovereignty cannot be acquir
ed merely by the
flying of a flag, or lost merely by the removal of one. The relative ins
ignificance of tit-for-tat incidents
241
involving flags has already been demonstrated: what is said there applies a fortiori in the present
context.
184. It is apparent that the first incident alleged by Cameroon 242 is the same as that which it advanced as
item 3 on page 198 of Annex OC 1. This allegation has been dealt with in
Nigeria's Counter-
243
Memorial and above at paragraphs 96 and 97 there is nothing to add.
185. Two other allegations by Cameroon concern the village of "Faransa",
and two concern "Ndiguili"
and Sagir respectively. Despite Nigeria's observation to this effect in
its Counter-Memorial, 244
Cameroon has still failed to identify the precise location of "Faransa".
Likewise, Cameroon had failed to
identify the precise location of "Ndiguili" on any of its maps. However,
it is now apparent that "Faransa"
and "Ndiguili" are the names given by Cameroon to the Nigerian settlemen
ts of Kirta Wulgo and Doron
245
Mallam (also known as Doro Kirta), two settlements which Cameroon admits are in Nigeria, not
Cameroon. 246Cameroon also admits that Sagir is in Nigeria. 247That is, in and of itself, enough to
dispose of these particular allegations, quite apart from their stalenes
s and triviality in the framework of
the law of State responsibility.
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186. Cameroon refers to five annexes in support of its several allegatio
ns:
(m) Annex RC 163 consists of a telegraphic message sent by "Chef Pamin
t" on 18 June
1987. Although it does contain references to certain alleged incidents i
nvolving flags, it
gives no indication of the source of the information it contains. It may
be noted that the
author of the message apparently attached less significance to the event
in 1987 than
Cameroon does in 2000; the second line of the message indicates that the
re was "nothing
to report" concerning Nigeria ("Nigeria - RAS [= rien à signaler]")
. An event with respect
to which there was "nothing to report" at the time is turned into a "cas
e before the Court"
248
13 years later.
(n) Annex RC 165 is a document dated 2 July 1987. Cameroon claims that
the document
originated with the "chef de district de Hile Alifa". The stamp indicati
ng the author of the
document is barely legible, but it does not appear to feature the title
"chef de district", and
the only place name which seems to be legible is "Logone". Once again, t
here is no
indication of the precise identity of the source of the information.
(o) The document at Appendix 2 of Annex OC 1 has already been analysed
. In the 249
present context, it should be noted that it does not specify the date up
on which any of the
incidents are said to have occurred. The author, based in Kousseri (loc
ated approximately
90 kilometres from Lake Chad), also does not indicate the source of the
information.
(p) Although it apparently refers to incidents alleged to have occurre
d in November 1987,
the document appearing at Annex RC 231 was compiled in 1999, nearly 12 y
ears later.
There is no indication of who the author of the document is, let alone t
he sources of
information on which the allegations are based.
(q) Although the document at Annex RC 166 refers to certain flags alle
gedly flying in
nine different villages, the message does not give any indication of who
is supposed to
have raised the flags, and it does not suggest that they were raised by
Nigerian soldiers. If
anything it infers that the flags were raised by the local Nigerian peop
le ("... les drapeaux
Nigerians qui y sont hissés ... conformement aux souhaits des populat
ions ...").
187. For the reasons already given, in Nigeria's view there is nothing t
o be gained in the context of State
responsibility by a forensic inquiry into who raised which flag where. I
n territorial disputes it is usual for
each side to fly its flag in respect of the territory it occupies. In ar
med conflict (and without prejudice to
questions of sovereignty) the forces of a State are enjoined to fly the
ir flag - "a fixed distinctive emblem
250
recognizable at a distance". It would be odd if it was unlawful for a peaceful civilian administrati
on
(let alone a civilian population owing allegiance to a particular party
) to fly a flag, when international
law requires the armed forces of a State engaged in actual conflict over
disputed territory to do so. Quite
apart from any questions of proof, of attribution and of lapse of time,
these allegations in themselves
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cannot sustain a claim of State responsibility.
Alleged incident of 28 November 1984
188. In its Reply, Cameroon also alleges that "on 28 November 1984, five Cameroonian cust
oms officers
251
were arrested and taken to Gambarou in Nigeria." Cameroon does not indicate where the arrest is
supposed to have taken place, nor the person or persons who are supposed
to have carried out the arrest,
nor the basis for the arrest.
189. In support of this allegation, Cameroon refers to a single document
in its Memorial. 252 The
wording of that document suggests that rather than being arrested and ta
ken to Gamboru - as claimed in
the Reply - the customs officers were already in Gamboru, a Nigerian town located
more than 10
kilometres south of Lake Chad, when they were arrested. In any event, th
is document is merely a list of
allegations dated 24 May 1994 which was apparently created for the purpo
ses of the present
proceedings. It does not attach any of the documents upon which the alle
gations are supposedly based,
and it is thus not primary evidence of any fact.
190. Even if it were, a claim made 16 years after the event in relation
to an isolated and ephemeral
incident253 comes far too late to warrant a claim of responsibility at the internat
ional level.
Alleged incident of 21 March 1985
191. Then Cameroon refers to "[t]he arbitrary arrest of Mohamed Djida by
Nigerian soldiers on 21
March 1985 on the island of Faransa...". 254
192. As mentioned above, it is apparent that "Faransa" is the name given
by Cameroon to the Nigerian
settlement of Kirta Wulgo, a settlement which Cameroon admits is in Nige
ria, not Cameroon. 255 Any
arrest by Nigerian soldiers which may have taken place in that settlemen
t would prima facie have
involved the soldiers carrying out their normal duties.
193. In support of its allegation, Cameroon relies on a note of a meetin
g at which Mr Djida gave an
account of his arrest, which Cameroon characterises as "arbitrary". 0 However Mr Djida himself is said to
have admitted that prior to his arrest he raised a Cameroon flag in Kirt
a Wulgo (Faransa), a settlement
which Cameroon agrees to be Nigerian. The detention and questioning of t
he person responsible for this
act would have been a normal part of investigations by Nigerian security
forces. Moreover not only did
Mr Djida raise a Cameroon flag in the Nigerian village of Kirta Wulgo; h
e did so on the instructions of
the Sub-Prefect of Makary, a Cameroon Government official. In addition,
shortly before this incident
another Cameroon Government official, the District Chief of Hilé-Alif
a, personally raised the Cameroon
flag at Kirta Wulgo.
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194. Nigeria has no intention of bringing still further counterclaims wi
th respect to these or other
occasions on which its flag was taken down by or on the orders of one or
another Cameroon official,
even when this occurred on territory indisputably Nigerian. The Court ha
s enough to occupy it with
respect to the substantial matters in dispute without bothering with sli
ghts of this kind, which are matters
for local action. This does not of course justify the police or other au
thorities in any mistreatment of
detainees, for which there are remedies both in national and internation
al law. 1 But an allegation made
in April 2000 about the individual treatment of a detainee in 1985, whic
h had never previously been the
subject of complaint at the international level, or of any previous atte
mpt to invoke any remedies at any
level, is wholly inadmissible. There is no evidentiary or other basis on
which the Court can now assess
the events alleged in Annex RC 121.
Additional generalised allegation of mistreatment of Cameroon farmers
195. Cameroon also makes the generalised allegation that "members of the
Nigerian army constantly
commit acts of violence against the poor Cameroonian farmers in the occu
pied area of Lake Chad". 2
However, Cameroon has not provided any information concerning the dates,
location or circumstances
of these alleged "acts of violence". Nor does the document quoted shed m
uch light on this allegation;
after reciting a litany of real or imagined woes, it concludes with the
cheerful remark: "In spite of all the
preceding, calm reigns over the whole Department of Logone and Chari."
Allegations concerning the arrest of certain village chiefs
196. Cameroon also refers to "the deposition, even arrest, of several Ca
meroonian traditional chiefs" and
makes the following allegations:
"... on 8 January 1988, eight village chiefs - including those of Katti
Kime I, Gorea
Changi, Naga, Tchika and Sagir - were arrested, taken to Wulgo in Nigeri
a and then
released. On 16 January 1988, the two village chiefs of Naga and Katti K
ime II were
destituted by a hundred Nigerian police officers... in 1999, the former
chiefs of Naga,
Tchika and Gorea Changi were taken in for questioning and held..." 3
197. The only document relied upon by Cameroon in respect of the first t
wo of these allegations is the
4
inventory of 1999, made for the purposes of the present case. That document was compiled 11 years
after the dates of the two alleged incidents, of which no contemporary e
vidence is provided. There is no
indication of who the author of the document is, or of the sources of in
formation on which the
allegations are based.
198. In support of its third allegation, Cameroon relies on several docu
ments dated August 1999. 5 These
documents originated either in Kousseri or Maroua, located approximately
90 and 200 kilometres
respectively from Lake Chad. Again, they do not identify the original so
urce of information upon which
the allegation is based. Except for the statement that certain former ch
iefs were arrested and interviewed
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on some date after 7 August 1999, they are vague and general, and are no
t a sufficient basis for any
claim of State responsibility.
199. So far as issues of State responsibility are concerned, it is relev
ant to note (a) that there is no record
of any protest being made to Nigeria about any of these incidents, and (
b) for the most part they are said
to have occurred more than 10 years ago.
Allegation of a "racket" involving maize
200. Cameroon states that "several reports also testify to the regular p
ractice of a veritable racket in the
region". Apparently the "racket" takes, or rather took, the form of "the extorti
on of bags of corn in April
1994". Cameroon does not, however, indicate who is supposed to have carr
ied out this alleged extortion,
nor does it provide information on the exact date or location of this al
leged incident.
201. Only one of the three annexes referred to relates to any incident w
hich may have occurred "in April
7
1994": this is an inventory of incidents since 1980, which contains a brief entry to the effect that during
that month, certain Cameroonians in the village of Hilé-Alifa 2 had 1
4 sacks of maize extorted from
8
them and were the victims of physical violence "by some Nigerians". This is on the face of it
inadequate as a basis for a claim of State responsibility, regrettable t
hough the incident must have been
9
to the owners of the maize. In particular, (a) there is no indication of a protest; (b) the inc
ident is in
itself trivial; and (c) there is no basis for suggesting that the "rac
ket", if there was one, is attributable to
Nigeria or that Nigeria committed any internationally wrongful act in fa
iling to prevent it.
(iii) New allegations made by Cameroon concerning the land boundary be
tween Lake
Chad and Bakassi
202. In its Reply, Cameroon refers to four protest notes involving incidents along the bo
undary. Three
11
of these relate to incidents already dealt with in the Counter-Memorial, including one concerning the
village of Tipsan. 12Only one relates to a "new" incident.
Alleged incursion at Djibrilli
203. Cameroon refers to a "protest of 16 March 1990 regarding the incurs
ion of three Nigerian police
officers at Djibrilli (Koze)."13The document in question is a Note Verbale of 16 March 1990 sent by the
Cameroon Ministry of External Relations to the Nigerian Embassy in Yaoun
de. It claims that certain
policemen from "Arbaku", Borno State entered Djibrilli in order to "kidn
ap" a Mr. Boukar. Cameroon
has not provided details of the circumstances, such as whether Mr. Bouka
r was being accused of any
offence by these policemen. Apparently the attempted arrest (if this is
what it was) was unsuccessful and
one of the policemen was wounded in the resulting affray.
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204. At least two details of this minor incident are, however, puzzling.
(r) The only evidence produced in support of this allegation is the No
te, which was written
nearly five months after the incident is alleged to have taken place, an
d which does not
indicate the sources upon which it is based.
(s) Although Cameroon refers to the Note as a "protest", the Note itse
lf seems not to be
raising any issue in terms of State responsibility but to be seeking (q
uite sensibly) to avoid
similar incidents for the future. Quite why Cameroon thought it necessar
y to raise the
issue in the framework of a chapter on State responsibility is unclear.
Removal of a pile of stones alleged to constitute a boundary marker near
Tipsan
205. Nigeria has already dealt definitively with the alleged "dispute" o
ver Tipsan, and with the various
14
incidents raised by Cameroon in that context. One additional point in the Reply however, warrants
brief mention. Cameroon refers to "a series of boundary markers, made up
of piles of stones" which
make it possible "to identify the boundary line". 15It quotes an information report to the effect that:
"on 9 May 1998, an informer told us that the Lamido of TONGO (Nigeria)
had sent his
people some time in January 1998 to disperse the piles of stones put dow
n by the
16
colonisers to mark the boundary (...)."
Neither the text of the Reply, nor the documents cited at Annexes RC 226 and RC 227, indicate the
precise location of these piles of stones. From the context, it may be p
resumed that these piles of stones
are (or were) located somewhere in the vicinity of Tipsan. If so, ther
e is no basis for suggesting that they
were placed there by the colonial powers to mark the boundary, at least
not as part of a joint exercise
17
between representatives of the United Kingdom and France. The point has
already been explained and
appears to involve yet more confusion on the part of Cameroon as to the
situation of Tipsan.
206. In the circumstances, it is unnecessary to consider other questions
that would arise from this event,
such as who owned the pile of stones, on whose land they were located, o
r on what basis the actions of
the retainers of the Lamido of Tongo could possibly be attributed to the
Nigerian State.
__________
1 Some of the alleged incidents in respect of which there has been no re
sponse were related to other incidents
mentioned earlier.
2 RC paragraph 11.33: "Le Cameroun reprendra donc ci-après les faits
qui lui paraissent, à ce stade, de nature à
illustrer l'engagement de la responsabilité internationale du Nigé
ria ...".
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3 See NC-M para. 24.62.
4 RC para. 11.39.
5 RC para. 11.37: "certains des arraisonnements ont effectivement pu se
produire en haute mer...".
6 RC para. 11.36; Annex RC 21.
7 RC para. 11.38.
8 NC-M para. 24.191.
9 RC para. 11.41.
10 RC para. 11.42.
11 RC para. 11.43.
12 RC para.11.44.
13 RC para. 11.46.
14 RC para. 11.44: "Le Nigéria dit douter de la réalité même
de ces faits."
15 RC para. 11.44: "On peut cependant regretter qu'il n'ait pas fondé
son argumentation sur les recherches qu'il
aurait pu mener dans ses propres archives."
16 NC-M para. 24.190.
17 NC-M para. 24.189.
18 Annex RC 57.
19 Annex RC 56.
20 Annex RC 58.
21 Annex RC 56, para. 4.
22 The words in square brackets reflect the French text of MC para. 6.56
, but those words do not appear in the
official English translation of Cameroon's Memorial. This explains Nigeria's use of the term "Idabato", criticised
by Cameroon (RC para. 11.49).
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23 MC para. 6.56.
24 RC para. 11.57.
25 Paras. 24.128-24.133.
26 NC-M paras. 24.131-24.132.
27 NC-M para. 24.130.
28 RC para. 11.53.
29 RC para. 11.54.
30 RC para. 11.55.
31 RC para. 11.56.
32 RC para. 11.52: "... tout au long de l'année 1981, à Jabane, da
ns le district d'Idabato et, plus généralement,
dans la presqu'île de Bakassi."
33 NC-M para. 24.66.
34 Annex NC-M 344.
35 Annex NC-M 343.
36 Annex NC-M 346.
37 President Shagari's letter referred to the "Akwa yaji River": it is t
he same river, as he recognised in his reply to
President Ahidjo's letter where he referred to the "Akwa Yafe River".
38 Annex NC-M 344.
39 RC para. 11.62: "de simples affirmations."
40 Annex MC 260.
41 Annex MC 262.
42 Annex RC 63.
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43 Annex RC 241; see also Annex MC 260.
44 NC-M Chapter 11.
45 RC paras. 11.64-11.66.
46 Annex NC-M 346.
47 RC para. 11.70.
48 RC para. 11.75.
49 The passage quoted sets out in full some words and symbols which are
abbreviated in the military message.
50 RC para. 11.80.
51 NC-M paras. 24.103-24.108.
52 RC para. 11.78.
53 MC para. 6.50.
54 NC-M para. 24.106, and Fig. 24.2 facing p. 672.
55 RC para. 11.79.
56 RC paras. 11.82 and 11.100.
57 NC-M paras. 24.109-24.117.
58 RC para. 11.82.
59 RC paras. 11.83-11.93.
60 RC paras. 11.94-11.100.
61 RC para. 11.84.
62 NC-M paras. 24.110-24.113.
63 RC para. 11.88.
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64 Para. 11.101 et seq.
65 RC para. 11.101.
66 Annex RC 98.
67 RC para. 11.106.
68 Annex RC 189.
69 RC para. 11.109.
70 Annex RC 189.
71 NC-M paras. 24.154-24.162.
72 RC para. 11.113.
73 NC-M para. 24.158.
74 RC para. 11.119.
75 NC-M paras. 24.175-24.179.
76 RC para. 11.120.
77 NC-M para. 24.178.
78 NC-M paras. 24.198-24.215.
79 NC-M paras. 24.220-24.221.
80 Annex MC 298, and RC paras. 11.128-11.129; NC-M paras. 24.214-24.215
and 24.219.
81 NC-M para. 24.223.
82 RC paras. 11.125-11.127
83 MC para. 6.74.
84 NC-M para. 24.217.
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85 NC-M para. 24.538.
86 NC-M paras. 24.535-24.538.
87 NC-M paras. 24.123-24.127.
88 NC-M paras. 24.124(2) and (3).
89 RC para. 11.118.
90 RC para. 11.136.
91 NC-M para. 24.94, quoted in RC para. 11.137.
92 NC-M para. 24.96, quoted in RC para. 11.137.
93 RC para. 11.138: "... l'occupation soudaine de certaines parties de l
a presqu'île de Bakassi par les forces
militaires nigérianes, et leur maintien sur les lieux de façon con
stante depuis le début de l'année 1994."
94 RC para. 11.139: "... que l'armée nigériane a pris le contrô
le du sud-ouest de la péninsule de Bakassi à la fin
de 1993, alors que, jusque-là, elle n'y détenait aucune position."
95 Above, para. 14.13.
96 Annex NC-M 347; and above, paras. 3.132-3.135.
97 Annex NC-M 347.
98 NC-M paras. 24.242-24.256 and 24.314-24.347.
99 RC para. 11.177.
100 NC-M paras. 24.326-24.332.
101 RC para. 11.192: "souligne".
102 RC para. 11.178: "indiquant la localisation des villages litigieux."
103 This is confirmed, for example, by p. 2368 of MC Annex 283.
104 RC para. 3.87.
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105 NC-M para. 24.314-24.319.
106 RC paras. 11.186-11.188.
107 Annex RC 173.
108 ibid., p. 1428: "seulement vérifier si effectivement nous étions de la PAMINT".
109 ibid., pp. 1428-1429: "un pôt (festin) de reconciliation en notre honneur
et tous ensemble avec les soldats
Nigérians, nous avons lu."
110 ibid., p. 1430: "Malgré tout ce chambardement, nous n'avons enregistré au
cune menace réelle, ni aucune
insulte digne de ce nom et à la fin tout le monde s'est exúsé .
..".
111 ibid., p. 1429: "qu'il ne comprend pas pourquoi les éléments Nigérian
s sont toujours arrêtés par les
Camerounais."
112 ibid.: "03 jours avant les gendarmes Camerounais auraient été appréhe
ndés à NAGA entrain d'exercer des
exactions les populations."
113 Annex RC 164.
114 ibid., para. 39, at p.1339: "...deux gendarmes de la brigade de Mora et six é
léments de l'OPS Chari ont été
appréhendés à Banki côté nigérian par les élémen
ts de la patrouille de ce pays. Ils ont été relaxés (sic) le
lendemain."
115 ibid., Section V, at p. 1339, emphasis added: "Malgré quelques incidents ob
servés tout le long de la frontière
Cameroun-Nigéria, La 3e Région Militaire continue de vivre son calme habituel."
116 Annex RC 162, at p.1328: "Nous gardons le drapeau Nigérian ici."
117 NC-M para. 24.247.
118 NC-M para. 24.256.
119 RC para. 11.199: "brièvement, un résumé des faits."
120 NC-M paras. 24.252-24.253.
121 RC para. 11.200.
122 NC-M para. 24.252.
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123 NC-M para. 24.255.
124 See NC-M para. 24.334(2) and Fig. 24.6.
125 RC para. 11.200.
126 NC-M paras. 24.268-24.272.
127 RC para. 11.240: "sans conséquence juridique".
128 NC-M paras. 24.270(5) and 24.271.
129 NC-M para. 24.271.
130 RC para. 11.241: "dès son mémoire, produit en 1995, le Camerou
n s'élevait officiellement contre
l'enlèvement et la séquestration de son ressortissant."
131 RC para. 11.242.
132 NC-M paras. 24.273-24.282.
133 NC-M para. 24.282.
134 NC-M para, 24.280.
135 RC paras. 11.243-11.244. "Le Nigéria présente ses objections h
abituelles sur la valeur probante des
documents produits par le Cameroun, auxquelles il n'est pas nécessair
e de répondre à nouveau."
136 See above, paras. 16.11 et seq.
137 I.C.J. Reports 1999 p. 38 para. 15, reiterating what the Court said
in its Preliminary Objections judgment of
11 June 1998, I.C.J. Reports at p. 319 para. 100.
138 Nigeria does not propose to deal individually with the allegations c
ontained in Cameroon's "Memorandum
on Procedure", unless these are specifically cited in Cameroon's Reply,
whether at para. 11.162 or elsewhere. If,
despite its disavowals, Cameroon seeks to rely on these at the merits st
age as a basis for claims of State
responsibility, Nigeria reserves all procedural rights it may have, as r
eferred to by the Court in its judgment of 25
March 1999: I.C.J. Reports 1999, p. 38 para. 15.
139 RC, para. 11.38: "dans une pêcherie dénomée Okomkiet, qui f
igure sous le nom "Big Ekom" sur les cartes
camerounaises de la presqu'île de Bakassi".
140 See NC-M, paras. 24.52-24.54; above, para. 15.83 et seq.
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141 Annex RC 15.
142 See NC-M, paras. 10.162 et seq. There is no evidence that the inhabitants use the Cameroon name.
143 RC, para. 11.54.
144 Annex RC 59.
145 Annex RC 61 is dated 20 February 1981. It refers to a message of 18
February, which refers to a message of
16 February, which apparently refers to a radio message of 15 February,
the day in question. The document of 20
February thus appears to be a fourth-hand account, though this is not en
tirely clear; it might be only third-hand.
146 The settlements are referred to in the telex by their Nigerian names
: cf. NC-M, paras. 10.162 et seq.
147 RC, para. 11.55: "les militaires nigérians ont poussé leurs in
filtrations jusqu'à Kombo Itindi, et dans les
installations pétrolières camerounaises." The note is at Annex RC
62.
148 See above, para. 3.264 et seq.
149 cf. Annex MC 314.
150 RC, para. 11.103, citing Annex RC 101: "un policier nigérian armé
s'est introduit, sans autre façon, dans
notre Pays pour procéder à l'arrestation d'un dénommé Christ
opher SOKARI, dans la pêcherie de TINKORO,
district de KOMBO ITINDI le 15 mai 1984."
151 It is shown on Map 27 of RC, Atlas.
152 Annex RC 101.
153 See Fig. 16.2.
154 RC, para. 11.102.
155 Annex RC 100.
156 See NC-M, para.10.41 and Annex NC-M 153.
157 RC, para. 11.90, referring to Annex RC 106.
158 There are 3 Cameroonian villages called respectively Ine Ngosso I, I
I and III, along the Ngosso River which
flows to the east of Erong Island (Cameroon).
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159 Annex RC 106.
160 RC, para. 11.90 refers also to Annex RC 107, another internal docume
nt prepared by the Cameroon Ministry
of Foreign Affairs, and dated 30 November 2000, i.e. two days after the
internal Note at Annex RC 106. It
appears to refer to the fourth of the allegations contained in para. 11.
90. However, it does not assist in identifying
the exact location of the incident, apparently referring to the same tel
ex of 12 November 1984 but without giving
any further indication of the source of the information contained in tha
t telex. It does however give some more
information about the incident, which apparently concerned the detention
of three canoes carrying goods from
Oron in Nigeria to Ekondo-Titi in Cameroon: the passengers were both Nig
erian and Cameroonian, and were
detained for questioning at Calabar. Apart from the vague allegation tha
t the incident occurred "aux environs du
village de Kumbo", the incident appears to have nothing whatever to do w
ith Bakassi. The account given is
consistent with lawful customs or police action by Nigeria, quite apart
from any question about sovereignty over
Bakassi.
161 RC, para. 11.91, referring to Annex RC 113: "...présence le 14 fé
vrier 1985 a Navanga II dans le Rio del Rey
stop d'un Plascoa de la Marine de guerre nigériane ayant à son bor
d 4 marins...".
162 See NC-M, Atlas, Vol. I, Map 5.
163 RC, para. 11.104, citing Annex RC 129: "Le 15 juillet , deux soldats
nigérians armés se sont introduits en
territoire Camerounais et ont arrêté une ménagère nigéria
ne, Madame BOUBOU qui résidait à AFAGBA II, Sous-
Préfecture de ISANGELE, dans le Département du Ndian"
164 The heading at RC, p. 517 suggests that this allegation is supposed
to relate to an "incursion ... à Jabane".
165 RC, para. 11.98, citing Annex RC 137: "Un chalutier de la Société
Camerounaise CHALUTCAM a été
arraisonné par la marine nigériane dans les eaux territoriales cam
erounaises le 19 février 1986 à 10H30 (rivière
CALABAR, à 5 miles de la pointe SANDY et à 1 mile au sud approxima
tivement à 8'25 longitude EST et 4'33
latitude nord. Bien plus, des militaires nigérians ont fait intrusion
dans le chalutier et ont forcé l'équipage à les
suivre à Calabar."
166 See MC para. 5.35. Even if the longitude co-ordinate given in the No
te had been 8_ 25' E and not 8_ 23' E,
the point identified would still have been located fractionally to the w
est of point 10, which is at longitude 8_ 25'
08" E.
167 RC, para. 11.99, citing Annex RC 145: "Dans la matinée du 19 fé
vrier 1986 à 10H30, le Chalutier
camerounais le 'Mungo' pêchant en pleines eaux territoriales cameroun
aises (latitude 4°31 Nord et longitude 8,28
E, à 1 mille dans le Sud du piquet ELF AONT et à 2,8 milles de la
côte Pointe Est Sandy) a été assailli et
arraisonné par des militaires nigérians armés. Sous les injures
, les imprécations et les menaces, le Chalutier
camerounais et tout son équipage ont été conduits sous escorte
jusqu'à Calabar."
168 See above, para. 137 et seq.
169 Cameroon apparently believes they are separate incidents: RC, para.
11.99.
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170 RC, para. 11.105, citing Annex RC 153.
171 RC, para. 11.107, citing Annex RC 187: "Occupation pêcherie Jaban
e dans district Idabato par Marine
nigériane depuis 02.10.90 a pris fin 7.10.90..."
"17.3.90 stop tentative capture sous-préfet Isangele au large Rio Del
Rey par une patrouille 'water Police'
nigériane..."
"12 au 13.8.90 stop occupation Jabane par troupe nigériane dans 6 emb
arcations stop menaces et pillage stop..."
"2 au 7.10.90 stop nouvelle occupation par éléments marine conduit
par un officier...".
172 This allegation appears to be related to the allegations made in MC,
paras. 6.72-6.74, which are dealt with at
NC-M, paras. 24.194 et seq.; see also above, paras. 76 to 81. The date given here is yet another ex
ample of the
inconsistency of Cameroon evidence in relation to this incident: see NC-
M, para. 24.221.
173 RC, para. 11.110, citing Annex RC 188: "tenue réunion à Jabane
le 17/11/90 par 13 (...) marines nigérianes
et police ainsi que certains civils avec population Jabane et Kombo Amun
ja..."
174 See Fig. 16.2.
175 RC, para. 11.111.
176 Annex RC 190.
177 Annex RC 194.
178 RC, paras. 11.144-11.161.
179 RC, para. 11.144: "le Nigéria a lancé, dans la journée du 3
février 1996, des attaques à l'encontre des
positions militaires camerounaises le long de ce qui était à l'é
poque le ligne de cessez-le-feu dans le presqu'île de
Bakassi."
180 This was demonstrated by Nigeria at the oral hearing: see CR 96/4, p
p. 88-89.
181 The Court is respectfully referred to the transcript: CR 96/4, p. 81
.
182 RC, para. 11.146: présent sur les lieux".
183 Annex RC 216.
184 RC, para. 11.146: "mouvements aériens inhabituels".
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185 RC, para. 11.147, citing Annex RC 203.
186 RC, para. 11.148, citing Annex RC 204.
187 See Fig. 16.2.
188 RC, para. 11.147, citing Annex RC 203
189 Annex RC 204.
190 See CR 96/4, pp. 79-89 (Sir Arthur Watts).
191 See Fig. 16.4.
192 For this and subsequent messages which are quoted in this Appendix,
square brackets have been used to
indicate words which have been abbreviated. As explained at the oral hea
ring (CR 96/4, p.83), the abbreviation
"PD" in these messages means "period" or "full stop", and "CMM" means "c
omma". The date and time reference
of this message appears as "031200A FEB 96". The times referred to in Ni
gerian military correspondence are
generally placed inside the relevant date, between the day and month.
193 RC, para. 11.159: "en signe de détente".
194 Something which Cameroon has not produced in relation to this incide
nt in four years of pleading.
195 NC-M, paras. 25.14 NC-M 25.15. Other accounts put it as slightly lon
ger: CR 96/4, p.82.
196 RC, para. 11.160.
197 See e.g. Annex NC-M 365 and Annexes NR 188 and NR 191. In the contex
t of any conflict, the word
"enemy" or the abbreviation "en" is often used to signify the military o
f other States, a usage adopted also by
Cameroon.
198 See NC-M, paras. 25.14 to 25.17 and the documents there referred to.
199 See ibid. and below, Appendix to Chapter 18.
200 RC, paras. 11.156 and 11.157, citing Annex RC 218.
201 RC, para. 11.156, citing Annex RC 218 at p. 3.
202 RC, paras. 11.149-11.150.
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203 Annex RC 208.
204 See Fig. 16.2.
205 RC, paras. 11.153: "...à la fin du mois de février 1996, tombé
es aux mains des militaires nigérians".
206 Annex RC 211.
207 CR 96/4 p. 87.
208 Annex RC 212.
209 Annex OC 26.
210 Annex NC-M 360.
211 See Fig. 16.4.
212 See CR 96/4 pp. 89 and 90; NC-M, paras. 25.16-25.17; Annexes NC-M 36
0 and NC-M 361.
213 I.C.J. Reports 1996 p. 13 at p. 22 (para. 38).
214 Above, para. 159.
215 Above, para. 161.
216 RC, para. 11.162.
217 See above, para. 110, last footnote and the proviso thereto.
218 "Les attaques militaires lancées par les troupes nigérianes ar
mées de mitrailleuses lourdes et de mortiers sur
les positions camerounaises à Inuamba et Benkoro, au sud de la presqu
'île de Bakassi, les 21, 22, 23, 24 et 25
avril 1996...".
219 "Memorandum on Procedure", Annex RC 1, paras. 4, 8 and 9.
220 Annex MC/P 10.
221 See Fig. 16.2.
222 Annex MC/P 11.
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223 Annex MC/P 12.
224 Annexes MC/P 14 and MC/P 17.
225 Annex MC/P 14.
226 RC, para. 11.153: "aux mains".
227 Annex MC/P 17.
228 MC/P 18 and MC/P 20.
229 See NC-M, para. 25.17; Annex NC-M 361.
230 "Memorandum on Procedure", para. 5: "... dans la journée du 11 dé
cembre 1996, les forces nigérianes ont
harcelé les positions camerounaises à l'arme automatique et au mor
tier, ces dernières s'abstenant de riposter...".
231 Annex MC/P 53.
232 "... les tentatives d'infiltration accompagnées de pilonnages dan
s la nuit du 31 janvier au 1er février 1997".
233 "Memorandum on Procedure", para. 5.
234 "Memorandum on Procedure", para. 10: "Après l'inauguration de l'a
dduction d'Akwa, le 3 juin, par
l'Administrateur militaire de l'Etat de Cross River..., c'est le Gouvern
eur de l'Etat d'Akwa Ibom qui a initié un
projet similaire à Jabane (Abana), dans l'arrondissement d'Idabato.
Le Ministre des Relations extérieures a
immédiatement protesté contre ce nouveau projet... Les travaux d'é
lectrification et d'adduction d'eau ont
néanmoins été inaugurés au mois de décembre 1996."
235 e.g. MC, paras. 6.30 et seq.; RC, para. 11.156.
236 "Memorandum on Procedure", para. 10.
237 Annex MC/P 52.
238 Cameroon's disregard for normal civil administration can also be see
n from its Note Verbale of 12
September 1996 (MC/P 40), in which it appears to be complaining about
the fact that certain Nigerian officials
"invited the population of the area to respect the law".
239 There would have been good grounds for opposing an express order of
this kind, had it been sought under
Article 41 of the Statute. In particular such an Order (a) would have
been prejudicial to the civilian population
over a period of some years; (b) would not have been necessary to pres
erve the subject matter of the dispute; (c)
would have affected the status quo to the prejudice of one of the Partie
s and (d) might have been seen to have
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involved the prejudgment of the case. In fact in the oral argument leadi
ng to the Order of 15 March 1996, the
question of civilian administration was not touched on.
240 RC, para. 11.191: "l'enlèvement des drapeaux camerounais et leur
remplacement par les drapeaux
nigérians."; "de tels incidents".
241 See above, para. 100.
242 RC, para. 11.191 ("Faransa", 19 December 1984).
243 NC-M, paras. 24.326-24.332.
244 NC-M, para. 24.327.
245 This confirmed, for example, by Annex MC 283, p. 2368 (Faransa) an
d Annex RC 165, p. 1343 (Ndiguili).
246 RC, para. 3.87.
247 ibid.
248 It should be stressed again that it is Cameroon which raises these i
ncidents under the rubric of State
responsibility.
249 NC-M, para. 24.322.
250 See, e.g., Hague Regulations respecting the Laws and Customs of War
on Land, 18 October 1907, Art. 1(2);
Geneva Convention I for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the
Field, 12 August 1949, Art. 13(2)(b).
251 RC, para. 11.197: "le 28 novembre 1984, cinq douaniers camerounais o
nt été arrêtés et emmenés à
Gambarou au Nigéria."
252 Annex MC 363, item 12.
253 Cameroon does not suggest that the officers were not promptly releas
ed, or that they were harmed in any
way.
254 RC, para. 11.194: "L'arrestation arbitraire de Mohamed Djida par les
militaires nigérians, le 21 mars 1985
sur l'île de Faransa...".
255 See above, paras. 96(2) and 185. For the status of Kirta Wulgo see
RC, para. 3.87.
0 RC, para. 11.194, referring to Annex RC 121.
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1 Subject to the exhaustion of local remedies and to other applicable re
quirements of international law for the
admissibility of claims.
2 RC, para. 11.194, referring to Annex RC 240: "les éléments de l'
armée nigériane ne cessent de commettre des
exactions sur les pauvres agriculteurs camerounais dans la zone occupé
e du Lac Tchad."
3 RC, para. 11.196: "le 8 janvier 1988, huit chefs de villages - dont ce
ux de Katti Kime I, Gorea Changi, Naga,
Tchika et Sagir - ont été arrêtés, conduits à Woulgo au N
igéria, puis relaxés. Le 16 janvier 1988, les deux chefs
de villages de Naga et Katti Kime II sont destitués par cent policier
s nigérians... en 1999, les anciens chefs de
Naga, Tchika et Gorea Changi ont été interpellés et séquestr
és."
4 Annex RC 231.
5 Annexes RC 238 and RC 240.
6 RC, para. 11.195: "Plusieurs rapports attestent également de la pra
tique régulière d'un véritable racket dans la
région"; "...l'extorsion de sacs de maïs en avril 1994...".
7 As to which, see also paras. 186(d) and 197 above.
8 Annex RC 231, p. 1844.
9 Of the other two documents referred to, Annex MC 363, dated 24 May 199
4, is a list of allegations created for
the purposes of the present proceedings (as noted in para. 189 above).
It is not itself evidence of anything. As to
Annex RC 240, a letter of 17 August 1998, this does not refer to anythin
g which could be termed a "racket". The
obligation for residents of Nigerian villages to pay tributes to traditi
onal chiefs (to which Cameroon is
presumably referring) is common to the region and to both sides of the
border, and has given rise to incidents on
both sides. It is, however, a part of the established social fabric and
does not of itself involve conduct attributable
to Nigeria as a State.
10 RC, para. 11.216.
11 NC-M paras. 24.260-24.267, 24.425-24.429 and 24.464-24.468.
12 As to which, see also above, para. 16.47 et seq.
13 RC, para. 11.216, referring to Annex RC 183: "protestation du 16 mars
1990 à propos de l'incursion de trois
policiers nigérians à Djibrilli (Koze)".
14 See above, para. 16.47 et seq.
15 RC, para. 11.235: "une série de repères frontaliers, formes d'a
mas de pierres"; "de vérifier le tracé de la
frontière".
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16 Annex RC 226. See also Annex RC 227: "Le 09 mai 1998, un informateur
nous a fait savoir que le Lamido de
TONGO (Nigéria) aurait envoyé ses gens courant mois Janvier 1998
, disperser les tas de cailloux entreposés par
les colonisateurs pour matérialiser la frontière...".
17 See above, para. 7.173.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 17
CONCLUSIONS
Conclusions on State Responsibility
17.1 For the reasons of principle given in Chapter 15, as well as for th
e detailed reasons set out in
Chapter 16 and in the Appendix to that Chapter in relation to alleged in
dividual incidents, Cameroon's
claims that Nigeria bears international responsibility to Cameroon for v
arious alleged violations of
international obligations owed to Cameroon are without justification, ar
e rejected and should be
dismissed.
17.2 At the level of individual incidents, it is significant how many of
Cameroon's allegations are
affected by some or all of the following deficiencies:
(a) having made the allegations in earlier pleadings, Cameroon has exp
ressly or tacitly
abandoned them; 1
(b) they relate to locations which are either unspecified, uncertain o
r mislocated;
(c) they concern localities which are not the subject of any dispute,
and thus have nothing
to do with the boundary dispute, or series of boundary disputes, that un
derlies the present
case;
(d) they are unsupported by any first-hand evidence, or only supported
by evidence that
was specifically prepared for the purposes of the case;
(e) they do not on the face of them involve conduct attributable to Ni
geria under
international law;
(f) the facts alleged are consistent with Cameroon's own responsibilit
y, or with neither
State being responsible;
(g) the incidents in question, if they occurred as alleged, were trivi
al, occasional and
ephemeral;
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(h) there is no allegation that any person or property was actually ha
rmed or damaged in
any way;
(i) they were resolved locally at the time, or subsequently by agreeme
nt between the two
States;
(j) no attempt was made to exhaust local remedies in relation to the t
reatment of individual
aliens;
(k) they were not the subject of timely, or any, protest to Nigeria;
(l) they are stale and thus time-barred.
17.3 Faced with this litany of deficiencies, the Court should dismiss th
ese incidents as the possible basis
of claims in the realm of State responsibility. It does not help Cameroo
n to withdraw from relying on
individual incidents "as such" and to take refuge in allegations of "sys
tematic" conduct. If there is
anything these incidents were not, it is systematic: a more sporadic and
occasional set of complaints
along an 1800 kilometre boundary it would be difficult to imagine. Moreo
ver, the allegation of "system"
cannot discharge Cameroon from the obligation of proving individual inci
dents. To say that a
government did something systematically or regularly requires proof that
it did it on some individual
occasion(s). Ten unsubstantiated allegations do not prove a system: th
ey prove nothing. As shown in the
Appendix to Chapter 16, Cameroon fails to make its individual allegation
s stick, and it follows that its
allegations of systematic conduct must also fail.
__________
1 See the Appendix to Chapter 16 above, paras. 2-3.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 18
NIGERIA'S COUNTERCLAIMS
A. Nigeria's Counterclaims and their Admissibility
18.1 In its Counter-Memorial Nigeria brought counterclaims with respect to a range of incidents alon
g
the boundary, involving cases where Cameroon had challenged the existing
position by the action of its
gendarmes or otherwise, to the detriment of Nigeria and in breach of int
ernational law. Nigeria was
frank in stating the position that the intermingling of claims of State
responsibility and a substantial
boundary dispute was not helpful. However, that view, stated already at
the stage of the Preliminary
Objections, had not deterred Cameroon from perpetuating and further multiplying it
s State responsibility
claim. Accordingly, since "the parties are and must be in a position of
equality before the Court in all
respects", Nigeria brought counterclaims with respect to a range of inci
dents involving in principle the
international responsibility of Cameroon. Nigeria also reserved the righ
t to insist, for its own part, on the
definitive specification of the land boundary, against the possibility t
hat Cameroon might resile from its
1
own claim to that effect.
18.2 In its Order of 30 June 1999, the Court referred to the Nigerian co
unterclaims and noted that...
"whereas those claims rest on facts of the same nature as the correspond
ing claims of
Cameroon, and whereas all of those facts are alleged to have occurred al
ong the frontier
between the two States; whereas the claims in question of each of the Pa
rties pursue the
same legal aim, namely the establishment of legal responsibility and the
determination of
the reparation due on this account; and whereas the counter-claims of Ni
geria are
therefore 'directly connected with the subject-matter of the claim[s] of
the other [P]arty' as
required by Article 80, paragraph 1, of the Rules of Court; and whereas,
in the light of the
foregoing, the counter-claims submitted by Nigeria are admissible as suc
h and form part
of the present proceedings..."
18.3 In its Counter-Memorial Nigeria asserted, to the same extent as might be allowed to Cameroon, t
he
right to augment and add to its counter-claims. It is true that in its Reply, Cameroon appears to have
withdrawn its State responsibility claims with respect to individual inc
idents as such.t as already
noted, there is doubt as to what this means, and in any event Cameroon s
till unhelpfully seeks to
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intermingle State responsibility and boundary claims in the present proc
eedings. Moreover Cameroon
introduces a series of new assertions in its Reply under the rubric of State responsibility, notwithstanding
3
its profession that it is not relying on individual incidents "in themse
lves".
B. The Relation of Counterclaims to the Present Dispute: General remarks
18.4 In its Reply, Cameroon describes Nigeria's counterclaims as "designed to thwart Came
roon's
request aimed at obtaining from the Court a pronouncement as to Nigeria'
s responsibility for the
internationally unlawful acts committed by that State in its enterprise
of challenging the boundary
between the two countries". 4The Court will be able to judge for itself, on the basis of Nigeria's
pleadings, whether Nigeria is engaged in an "enterprise of challenging t
he boundary between the two
countries". Coming from a State which persuaded the Court of the existen
ce of a dispute concerning the
main part of the boundary by reference to its claim over Typsan - a clai
m which was unjustified, which
5
Cameroon must have known was unjustified and which it has now withdrawn - this statement is not
without its lighter side.
18.5 In any event, although it is true that some of Cameroon's State res
ponsibility claims are supported
by documents which show that responsibility for the incident in question
rested with Cameroon itself
(and these have correspondingly been made the subject of counterclaims
by Nigeria), for the most part
Nigeria's counterclaims concern distinct events and distinct victims. Th
ose counterclaims have a
separate existence. They are not designed to, and could not, "thwart" su
ch State responsibility claims as
Cameroon may be able to establish. In the event, if Cameroon's State res
ponsibility claims are thwarted
it is through its own conduct in failing to provide convincing evidence
of the events themselves, and not
by Nigeria's counterclaims.
18.6 Cameroon describes Nigeria's counterclaims as "fundamentally artifi
cial..." and as "made, not
because they are justified as a matter of fact, but on the basis of a cu
rious conception of equality
6
between the Parties to proceedings before the Court". Again, this is whistling in the wind. Nigeria may
or may not be able to establish the facts alleged in its counterclaims;
it claims no different position for
7 8
itself in terms of such issues as attribution and the onus of proof than it requires of Cameroon. All this
is a matter for the Court, and generic criticisms by Cameroon, without a
ny examination of the actual
claims, are neither here nor there.
18.7 There were in fact countervailing considerations so far as Nigeria
was concerned in relation to the
decision to bring counterclaims. On the one hand, Nigeria has repeatedly
said that Cameroon's confusion
of issues of State responsibility and territorial title was unjustified
and counterproductive, and that it is a
9
distraction from the real issues. Nigeria would not have brought counterclaims in the present
proceedings if Cameroon had not chosen to combine allegations relating t
o territorial sovereignty and
State responsibility in the first place. On the other hand, once Cameroo
n had done so, the record had to
be corrected. According to Cameroon, there is a systematic Nigerian assa
ult on the boundary as a whole
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- an assault amounting to an "enterprise". 10 Consideration of the actual record, as presented in the
appendices to this Chapter and to Chapter 16 and the relevant annexes, r
eveals nothing of the kind.
Leaving to one side questions of evidence and proof, Cameroon's own alle
gations amount to nothing
more than sporadic conduct in a variety of locations, actuated (or supp
osedly actuated) by a variety of
local circumstances. Cameroon's assertion of what amounts to a quasi-cri
minal "enterprise" of a general
character fails entirely, and does so quite independently of any questio
n of the merits of particular claims
or of the truth of particular incidents.
18.8 Cameroon's treatment in Chapter 12 of Nigeria's arguments based on
historical consolidation and
11
acquiescence provides a vivid example of this confusion. Historical consolidation has nothing to do
with State responsibility. It belongs to that separate compartment of th
e law concerned with title to
territory. Indeed such persistent confusion may lead one to infer that t
he State responsibility claims are
brought and maintained by Cameroon as a side-wind and for purely tactica
l reasons.
C. Existing and New Counterclaims
18.9 However that may be, the claims of each party have to be assessed e
ach on their merits and on the
strength of the evidence produced, and not by reference to assertions of
motive. As in Chapter 16,
Nigeria will not engage in the detailed work of analysis of the various
claims and defences in this
Chapter but rather in the appendix which follows. In that appendix, Nige
ria deals firstly with the 29
individual counterclaims raised in the Counter-Memorial, and with the responses made to them by
Cameroon in its Reply. As a general matter, it will be seen that Cameroon has either glossed
over these
counterclaims or has failed to produce any convincing evidence refuting
them. In a number of cases (for
example, the attacks against Bakassi settlements and civilian personnel
in February-March 1996 and
April 1998, and various incidents concerning Mberogo) Nigeria has prese
nted substantial additional
evidence in support. 12
18.10 Nigeria also raises a number of further incidents involving the in
ternational responsibility of
Cameroon. These further claims are particularised in the appendix to thi
s Chapter with references to
relevant documents and protests.
18.11 Finally Nigeria feels that it must draw attention to the fact that
its nationals in Cameroon have
been increasingly the target of harassment and extortion by Cameroon aut
horities, especially in the
gendarmerie. For example, in a diplomatic note of 18 August 2000, Nigeri
a drew attention to no fewer
than 84 incidents during the period September 1999-July 2000, occurring
either within the South
Western Province or involving Nigerian fishermen resident there. These e
ncompassed "various incidents
of harassment, assault, arrests, detention and extortion against Nigeria
n nationals". 13 The schedule of
incidents attached to that note includes a number of incidents with seri
ous consequences to the Nigerians
involved, including numerous rapes and assaults and at least one death.
18.12 These incidents are by no means confined to the South Western Prov
ince. Nor, it should be said,
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are the activities of the Cameroon gendarmerie solely focussed on Nigeri
ans, even though they are often
targeted. The Special Rapporteur on Torture of the Commission on Human R
ights, in a report of 11
November 1999 on his visit to Cameroon, concluded that "torture is wides
pread and used
14
indiscriminately against many people under arrest". For example at the Yaoundé criminal investigation
service unit, visited by the Special Rapporteur, "the vast majority of t
hose in detention had been
15
tortured". There is an "anti-gang unit", established for three northern provinces
in 1998, which acts as
an execution squad, and which refused all cooperation with the Special R
apporteur. 16 Thus there is
independent evidence that in Cameroon "torture is resorted to by law enf
orcement officials on a
widespread and systematic basis". 17 This places in context the allegations of individual maltreatment
and harassment of Nigerians which are made in the various documents anne
xed to the Counter-
Memorial and to this Rejoinder.
18.13 An example of what can and does happen to Nigerians in Cameroon of
ficial custody is provided
by the case of the death of Mr Edet Inyang Sunday, a Nigerian fisherman
abducted by Cameroon forces
from the Bakassi Peninsula on 3 November 1996. Mr. Sunday died on 4 Apri
l 1998 as a result of a bullet
wound in the chest inflicted on him while in a Cameroon prison. The post
mortem report, issued by a
doctor at the Military Hospital at Yaoundé, records that Mr. Sunday d
ied of "severe bronchial
pneumonia sequel upon a thoracic wound caused by bullet". He had been in
custody for about 18
months, although there is no indication that he was ever charged with an
y offence. Relevant documents,
18
including the Nigerian diplomatic note of 18 June 1998, are annexed.
D. Conclusions
18.14 Nigeria has several times made it clear that the aspects of the pl
eadings in the present case
concerning allegations of State responsibility on both sides are of seco
ndary importance. This is so, even
though some at least of the incidents are extremely serious, and involve
d death or serious injury to
civilians, specifically Nigerian civilians. Nonetheless the present case
is a land, lacustrine and maritime
boundary dispute, and to that extent issues of State responsibility are
secondary.
18.15 Cameroon's attitude is far from consistent. On occasions it agrees
that State responsibility is
secondary or ancillary. 19 Elsewhere it appears to treat its allegations of State responsibility a
s central to
the case, as when it says that Cameroon "intends to take advantage of th
e rules of international
responsibility, primarily to obtain recognition by the Court that the pa
rts of Cameroonian territory
illegally occupied by Nigeria must be returned to it". 20This is, again, a complete confusion. In most of
the cases where the Court has been confronted with territorial disputes,
the only issue has been that of
sovereignty, and the Court's judgment (declaratory in form) as to the
location of title has resolved that
issue. No one has previously suggested, to Nigeria's knowledge, that the
rules of international
21
responsibility are necessary, or even useful, in order to resolve territ
orial disputes.
18.16 In those relatively few cases in which one State has brought claim
s in respect of both title and
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responsibility arising from a territorial dispute, the responsibility cl
aims have usually been withdrawn. 22
In the very few cases where such claims were maintained, the Court has b
een disinclined to exacerbate
matters by dealing with past incidents. A good example is the Fisheries Jurisdiction case (Federal
Republic of Germany v. Iceland), where the Court declined to make a declaratory award in respect of
compensation for incidents involving damage to fishing vessels arising i
n the course of the dispute. The
Court said that...
"In order to award compensation the Court can only act with reference to
a concrete
submission as to the existence and the amount of each head of damage. Su
ch an award
must be based on precise grounds and detailed evidence concerning those
acts which have
been committed, taking into account all relevant facts of each incident
and their
consequences in the circumstances of the case. It is only after receivin
g evidence on these
matters that the Court can satisfy itself that each concrete claim is we
ll founded in fact and
23
in law."
In that case the dispute had arisen in 1971, so the incidents in questio
n were recent, and they were, in
principle, well attested. In the present case, by contrast, the incident
s which form the basis of
24
Cameroon's "global" responsibility claim are disparate, in many cases old and stale, and poorly
supported by first-hand evidence. Many of them are trivial; others were
resolved at the local level. These
points have already been made earlier in this Rejoinder, and amply illustrated.
18.17 Without in any way resiling from its claims as described in its Counter-Memorial and in this
Rejoinder, Nigeria's view is that it would be appropriate to the efficient manage
ment of the present case
for each side to withdraw its claims in the field of State responsibilit
y, without prejudice to the legal
rights of the individuals involved and to their resolution through other
forums. It is, however, not enough
for Cameroon
to withdraw from its earlier reliance on the individual incidents it all
eges "as such"; if withdrawal there
is to be, it must be complete on each side and extend to all areas of th
e boundary. It is on that basis that
Nigeria maintains its claim in the first instance for declaratory relief
in respect of each of the
counterclaims specified in its pleadings, with damages, if not agreed be
tween the parties, to be
quantified by the Court in a later phase of the proceedings.
__________
1 See NC-M, paras. 23.01-23.05.
2 cf. RC para 11.33, and see the discussion above, paras. 16.11-16.33.
3 See above, paras. 16.20-16.32.
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4 RC, para. 12.01.
5 See above, paras. 7.169-7.181, 16.47-16.54.
6 RC, para. 12.03.
7 On the requirement of attribution see above, paras. 15.8-15-12.
8 On the burden of proof see above, para. 15.69 et seq.
9 See, inter alia, para. 15.2 above.
10 RC, para. 12.01.
11 RC, paras. 12.07-12.10.
12 See below, Appendix to this Chapter, paras. 13, 14, 24 and annexes re
ferred to.
13 Annex NR 199.
14 Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuan
t to Commission of Human Rights
resolution 1998/38, Visit by the Special Rapporteur to Cameroon, E/CN.4/
2000/9/Add. 2, 11 November 1999,
para. 5.
15 ibid., para. 12.
16 ibid., paras. 21-23, and see also Amnesty International, "Cameroon: Extrajudic
ial Executions in North and Far-
North Provinces" (December 1998).
17 E/CN.4/2000/9/Add. 2, 11 November 1999, para. 68.
18 Annexes NR 200 and NR 201.
19 RC, para. 10.01 ("The present case primarily concerns a boundary dis
pute...").
20 RC, para. 10.02.
21 Cameroon goes on to imply that territorial disputes are to be settled
not only by the return of territory but by
"reparations for the illegal occupation": RC, para. 10.02.
22 As in the Anglo-Norwegian Fisheries case, ICJ Reports 1951 p. 116 and the Fisheries Jurisdiction case
(United Kingdom v. Iceland), ICJ Reports 1974 p. 3. These cases involved issues of maritime delimit
ation where
incidents occurred on the high seas, or in areas which were putatively a
reas of high seas.
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23 ICJ Reports 1974 p. 175 at p. 204 (para. 76).
24 Cameroon has, or seems to have, withdrawn its claim to State responsi
bility based on individual incidents: see
above, para. 16.11 et seq.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 18
APPENDIX
Counterclaims in respect of Specific Incidents
A. The Purpose of this Appendix
1. As explained in Chapter 18, the purpose of this Appendix is to deal i
n more detail with Cameroon's
remarks on the counterclaims, as set out in Chapter 12 of its Reply, and to specify a number of additional
counterclaims which (a) fall within the scope of the present case and
(b) either concern events which
have occurred since the submission of the submission of the Counter-Memorial (or matter referred to for
the first time in Cameroun's Reply (or matters referred to for the firs
t time in Cameroon's Reply), or
relate to continuing breaches of international law by Cameroon as at the
time of conclusion of this
Rejoinder.
B. Cameroon's Responses to the Specific Incidents dealt with in Nigeria'
s Counter-Memorial
(a) The situation in and around the Bakassi Peninsula
CC1. Earlier incidents on or around the Peninsula
2. Cameroon's attack on Ufok Akpa Ikong was dealt with briefly in the Counter-Memorial, referring to a
Nigerian protest note of 31 March 1977. 1The reference to "Ufok Akpa Ikong" may be understood as a
reference to Ine Akpa Ikang, a village in the northwest of Bakassi. Came
roon implies that this incident is
consistent with operations normally carried out by Cameroon's policemen
in its territory, to maintain
public order. Quite apart from the questions that this begs concerning s
overeignty over Bakassi, the fact
that Cameroon considers setting a fishing village on fire to be consiste
nt with an "operation to maintain
order" is rather worrying.
2
3. In reply to certain incidents of 1970 and 1982,it seems that, once again, Cameroon's only line of
defence is to claim that the incidents took place in Bakassi, and to sug
gest that the incidents were part of
the normal operations of the Cameroon gendarmerie. Once again, leaving the sovereignty issue to one
side, Nigeria is at a loss to understand how the operations of Camerooni
an officials come to include the
beating of individuals (particularly Nigerians), the setting of houses
on fire and the plundering of
property.
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CC2. Armed tax drive and associated brutality at Ntokoba
4. In respect of the tax collection carried out in Ntokoba (sometimes s
pelled Ntakaba) by seven armed
Cameroonian police officers at 10.15 hours on 24 September 1991, 3 Cameroon criticises Nigeria for not
4
"indicating the exact location" where this incident took place. In fact Nigeria did so: Ntokoba appears
in the list of Bakassi settlements appearing in Chapter 3 of the Counter-Memorial, where the village's
5
geographical coordinates are indicated. The village also appears on Maps 4 and 5 of the Counter-
Memorial Atlas.
5. Cameroon claims that the incident complained of constitutes "the norm
al exercise by Cameroon of its
6
sovereign power to collect tax in its territory". But (quite apart from the underlying issue of sovereignty
over the Bakassi peninsula) it is alarming that Cameroon considers that
handing out severe beatings to
individuals, particularly to those who are at least "partly of Nigerian
origin", constitutes "the normal
7
exercise" of its powers to collect tax. Moreover, as the document referr
ed to by Nigeria testifies, at the
time of the incident, the village of Ntokoba was under the administrativ
e control of Odukpani Local
Government Area of Nigeria (as it is at the present time under the cont
rol of its successor, Bakassi Local
Government Area). Cameroon appears to acknowledge this Nigerian control
by suggesting that the
inhabitants of Ntokoba would have had cause to present arguments "before
the Nigerian tax
8
authorities".
CC3. Harassment at Abana
6. According to Cameroon, the events of 26 February 1993, referred to in
the Nigerian Note of 26 April
9 10
1993, were just another "normal operation to maintain order by the Cameroonia
n gendarmerie". Quite
apart from Cameroon's failure to shed any light on what was, by its own
tacit admission, a major police
operation (and which was no doubt correspondingly well recorded on its
side), there is again a question
here about what amounts to "normal" policing so far as Cameroon is conce
rned.
CC4. Attack on Nigerian boats
7. Cameroon refers to the attack by its military helicopters and naval v
essels on Nigerian merchant boats
at about 0800 hours on 27 June 1993, which resulted in the sinking of 23
of the boats. It notes that
there was an "astonishing disproportion between the resources ... mobili
sed by the Cameroonian army
and their target". Nigeria agrees with this observation: the fact that t
he Cameroon military was targeting
unarmed merchant vessels, and that so many were sunk, strongly suggests
that there could have been no
legitimate reason for this exercise of force.
8. Cameroon also argues that this incident somehow "confirms the fact th
at from 1992 Nigeria had
12
embarked on a course to conquer the Bakassi Peninsula". But it is difficult to understand exactly how
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the sinking of merchant boats by Cameroon's armed forces can be construe
d as an act of conquest by
Nigeria. Nor is there any evidence at all for Cameroon's assertion that,
if the incident happened, it
13
"would instead constitute a test of Cameroon's defences by the Nigerian
army". Since the available
evidence suggests that the boats were civilian vessels in civilian use,
there is no basis for the suggestion
of a test of Cameroon's defences.
9. Finally, Cameroon's observation 14 that the Nigerian Protest Note specified the number of Nigerian
merchant boats sunk, but not the number of Cameroonian helicopters invol
ved in the attack, is
insensitive. Those present were no doubt preoccupied with trying to save
themselves from this attack.
On the other hand, the number of vessels lost would have been easily est
ablished by the Nigerian
authorities, in subsequently interviewing the Nigerian merchants, whose
livelihoods were severely
affected by the sinking of their boats.
CC5-17. Miscellaneous attacks on Nigerian villages and their inhabitants
(1994-1999), including
the market attack of 3 February 1996
15
10. Cameroon purports to respond summarily and in a single paragraph to the series of incidents
between January 1994 and February 1999 cited by Nigeria. 16 In its cursory treatment of these incidents,
Cameroon does not deny that they took place. The only defence which Came
rooon appears to advance in
respect of all of these incidents is the claim that the Cameroonian atta
cks were "military operations in an
area of armed conflict in which the intensity of fighting reached extrem
ely high levels at certain
17
periods". But quite apart from the fact that the reference to the "intensity of f
ighting" begs the question
of who was responsible for the fighting concerned, Cameroon has not demo
nstrated that the numerous
attacks that it carried out during this period were in the course of "in
tense fighting" which was already in
progress. Indeed, it is clear from the context of these incidents that t
hey were for the most part if not
entirely attacks on civilian targets (villages and individual fishermen
etc.), carried out by Cameroon
without warning.
11. Evidently the Nigerian civilians attacked could not have been involv
ed in the "intense fighting" to
which Cameroon refers. In particular, reference is made to Cameroon's at
tack of 3 February 1996, which
has already been discussed in some detail in this Rejoinder. 18Reports from Nigerian forces in the field 19
confirm that the Cameroon attack was sudden and unprovoked. In addition,
the attacks which took place
after 15 March 1996 were breaches of the Court's Order of that date.
12. Cameroon finds it "astonishing" that "Nigeria, whose troops occupy a
large part of the Bakassi
Peninsula ... seeks to pin responsibility on Cameroon for events which a
llegedly took place in the area
controlled by its troops".20 Nigeria does not intend to trade epithets, but it is not at all astonis
hing to
suggest that substantial civilian casualties in areas under Nigerian con
trol should have been caused by
Cameroon. The well-attested events of 3 February (and Camerooon's uncon
vincing explanations of
them) are of particular relevance here: Cameroon is certainly responsib
le for the consequences of its
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attack on a Nigerian village and its civilian population.21
13. As to the incidents of 6, 18 and 20 April 1998, Nigeria annexed to i
ts Counter-Memorial the relevant
22
Nigerian diplomatic note. It also annexed statements made by a number of the victims of those att
acks.
Nigeria now annexes further documents relating to these three incidents,
23which include additional
statements made by victims of the attacks, as well as by the Regimental
Medical Officer in East
Atabong. 24Those statements largely speak for themselves, but the following points
may be made:
· The victims were predominantly civilians, including women and child
ren;
· They had suffered gunshot and other percussion wounds;
· There were a number of deaths;
· There is no indication of any Nigerian military operations that wou
ld have occasioned
Cameroon responses and merely incidental casualties - in other words, th
e accounts are
consistent with assaults initiated by Cameroon.
· These incidents were characteristic of the behaviour of Cameroonian
gendarmes and
others, shooting first and asking questions afterwards, if at all.
· First aid and assistance was offered by Nigerian personnel on Bakas
si and in no case by
Cameroon personnel.
14. There was a pattern of attacks by Cameroon on Nigerian civilians dur
ing this period, in addition to
the incidents of 6, 18 and 20 April 1998. Documents relating to some of
these incidents, including
witness statements, are annexed. 25
(b) Incidents in Lake Chad (CC18-20)
26
15. In its Counter-Memorial, Nigeria presented a series of counterclaims in respect of incidents whi
ch
took place in Lake Chad, at the settlement of Kirta Wulgo, and for which
Cameroon bears
27 28
responsibility. In its Reply, Cameroon does not actually deny that these incidents took place. Indeed,
29
by referring to the incidents cited by Nigeria without qualification, Cameroon virtually admits the
facts. Instead, Cameroon argues that "the location of incidents is... an
essential prerequisite for the
attribution of responsibilities under international law" and claims that
it is impossible to determine
30
whether the villages in question are situated in Nigeria. This defence fails, for a number of reasons.
First, while location is always relevant to State responsibility it is n
ot decisive: a State may be
responsible for conduct on territory which is part of another State, or
is otherwise not subject to its
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control, and correspondingly it may not be responsible for conduct which
does take place on its territory.
Secondly, Nigeria provided maps and precise co-ordinates of the localiti
es in question, 31 so that
Cameroon's professed uncertainty is unconvincing. But above all, Cameroo
n ignores the point that all
the incidents raised by Nigeria as counterclaims took place in the villa
ge of Kirta Wulgo, a settlement
32
which (as Nigeria has already pointed out ) falls within Nigeria even on the basis of the unratified IGN
demarcation. Indeed, Cameroon confirms that Kirta Wulgo is a Nigerian vi
llage. 33 Kirta Wulgo has
always been under undisputed Nigerian sovereignty, and in the circumstan
ces Cameroon must be held
internationally responsible for the actions of its soldiers, police and
other officials in and against that
village, as detailed in Nigeria's Counter-Memorial.
(c) The land boundary between Lake Chad and Bakassi
16. Cameroon asserts that the land boundary, having regard to its length
and other characteristics, "could
34
not be incident free". That is no doubt true: it has not been incident-free. No doubt Cameroon
is
entitled, for its own part, to select those bits of the boundary (all of which it declared to be in dispute)
35
which it wishes to be subject to claims of State responsibility. Indeed
it confirms that it has done so.
But it cannot require Nigeria to accept a similar selective approach to
boundary incidents, and in its
Order of 30 June 1999 the Court accepted Nigeria's counterclaims as admi
ssible without limit as to their
location. So far as concerns the land boundary between Lake Chad and Bak
assi, it may be disarming to
assert that this boundary "could not be incident free", but it is also i
rrelevant. If State responsibility is to
be brought into the case, it is just as much a possibility for the land
boundary between Lake Chad and
Bakassi as it is for those areas themselves.
CC21. Incidents at Tipsan
17. In its response to Nigeria's counterclaims concerning Tipsan, 36 Cameroon does not deny that the
incidents in question actually took place. Instead it asserts:
(a) that Nigeria merely cites documents in which Cameroon has indicate
d that Tipsan is
situated in Cameroonian territory, without showing how this constitutes
an internationally
unlawful act; and
(b) that Tipsan is in any event in Cameroon's territory. 37
18. Cameroon's first assertion clearly does not apply to the events desc
ribed in paragraphs 25.44 and
25.45 of Nigeria's Counter-Memorial. These involved Cameroonian officials ordering the village head
and inhabitants of Tipsan to leave the village and not to allow the exer
cise of Nigerian sovereignty there.
Nigeria agrees that the mere assertion of a bona fide territorial claim (whether or not it is eventually
38
upheld) is not as such and without more a basis for State responsibilit
y. But it is one thing to make a
claim to an area of territory and quite another to seek to expel its inh
abitants: the conduct described in
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paragraphs 25.44-25.45 of the Counter-Memorial obviously involves acts which incur Cameroon's
international responsibility, and indeed the arbitrary expulsion of a ci
vilian population would do so even
if the claim to Tipsan was well-founded. As to Cameroon's second asserti
on (paragraph 17, above), this
has been fully discussed already. The events and documents described in
paragraphs 25.46 to 25.49 of
the Counter-Memorial were included in the Counterclaims to show that Cameroon had repeatedly
laid
claim to Tipsan. Nigeria has shown that Cameroon's claim to Tipsan is un
real and wholly lacking in
39
substance. In the circumstances, the acts and claims of Cameroon relating to Tipsa
n are a suffficient
basis for State responsibility.
CC22. Confiscation of land and other incidents of harassment, supported
by Cameroon
gendarmes, at Maduguva
19. In its Counter-Memorial, Nigeria noted the problems that had arisen at Maduguva, and the threat
presented to Nigerians and their lands around the villages of Guri, Madu
guva and Gaddamayo. 40 The
position so far as concerns territorial sovereignty and the location of
the boundary in this area is clear
enough and has been fully dealt with elsewhere. 41Nigeria noted, by way of background, the existence of
a local agreement concerning the disputed area; this was explicitly done
not by way of a claim to
responsibility but in order to put in context subsequent acts by Cameroo
n officials supporting the land
claims and exactions of the Lamido of Burha. 42 Here as elsewhere, Nigeria has been entirely consistent
with its own position on State responsibility. It does not say that the
conduct of the Lamido of Burha is
as such attributable to Cameroon, nor that an unresolved claim to land a
cross the boundary (e.g. a claim
based on local custom or tradition) is as such a basis for state respon
sibility. What it did say, with perfect
clarity, was that "[t]o the extent that the events recounted... involve
support by Cameroon officials and
gendarmes for the land claims of the Lamido of Burha", this involves the
international responsibility of
Cameroon. 43 In particular this is the case where gendarmes or other local officials
have assisted the
Lamido, for example, in enforcing claims to land or produce against Nige
rian villagers, or by expelling
them from the disputed lands in Nigeria. Cameroon evidently has difficul
ty in understanding this
consistent position. In its Reply, it does not specifically deny any of
the incidents alleged by Nigeria, but
it asserts that acts carried out by or on behalf of the Chief of Burha a
re not acts for which Cameroon can
44
be held responsible. Nigeria so far agrees, but this was not the basis on which it had made
the
counterclaim, as the passage above clearly shows. 45
CC.23 Incidents involving Cameroon gendarmes at Tosso and Mberogo
20. Nigeria's counterclaim involves assaults by gendarmes in the localit
y of Mberogo, especially in 1994
and 1995. 46 In its Reply, Cameroon largely confines its response to suggesting that there is som
e
confusion concerning the existence of villages with similar names on eit
her side of the international
boundary. 47 The position so far as concerns territorial sovereignty has already bee
n discussed in detail;
from that discussion it is clear that, although there are several villag
es by the name of Tosso, Cameroon's
"confusion" at these different localities is as convenient as it is unco
nvincing.
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49
21. In the case of the incidents of May 1976, Cameroon claims that there is a Cameroonian village
called Tosso, which is located in the vicinity of Mount Tosso. 50 This claim has already been dealt with.
It is very doubtful if there is a village of any name in the location specified by Cameroon on its Map,
R27. 51 Even if this village does exist, it clearly has no relevance to the all
egations concerning the
incidents of May 1976 which took place in Bissaula and elsewhere. It als
o has no bearing upon the claim
concerning the incident which took place in Tosso, as it is obvious that
it concerns the Nigerian village
of Tosso. The Nigerian village (unlike its mysterious Cameroonian count
erpart) was and is well-
established and well known locally. It is true, as Cameroon points out,
that the Nigerian Tosso is "a good
distance away from the boundary", but this merely makes the fact of the
incursion clearer.
22. As to the various claims advanced in relation to the incidents in Mb
erogo, Cameroon's only line of
defence, again, appears to be that there exists a Cameroonian village in
the vicinity known as "Mbelogo"
which is "clearly ... not the same village" as Mberogo, and to imply tha
t Nigeria has confused the two
locations in respect of every single one of these incidents.52 This may be called the "twin cities" defence,
and in Cameroon's Reply it performs the same forensic function as an alibi in a criminal case.
Unfortunately (as with some alibis) Cameroon has to rely on it repeate
dly.
23. The question is not whether we believe in "Mbelogo", but in relation
to which village the incidents
complained of occurred. And here, with the exception of the claim relati
ng to the incident of 26
September 1994, all of Nigeria's claims are based on Nigerian documents
which clearly refer to the
Nigerian village of Mberogo.
24. As regards the incident of 26 September 1994, 53 it is true that the documents relied upon by Nigeria
in the Counter-Memorial are Cameroon documents which refer to the location of the incident by t
he
name "Mbelogo". However, any doubts as to whether the incident took plac
e in the Nigerian village of
Mberogo are removed after a consideration of certain additional document
s relating to this incident
which are now annexed. These documents refer to the location of the inci
dent as Mberogo. They
include:
(a) The witness statement of Adamu Dauda, the Nigerian Immigration Off
icer who was
54
attacked in the incident. His statement of 26 September 1994, the day of the incident,
confirms the details of the attack by the Cameroon Gendarmes, which incl
uded hitting the
two Nigerian officials concerned with rifles and sticks whilst they lay
on the ground,
defenceless.
(b) A report on the incident dated 30 September 1994, which was prepar
ed at the Mubi/
55
Tosso Police Post.
(c) A report on the interrogation of Ngomdandi Manretoing and Massango
Paul, the two
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Cameroonian gendarmes who carried out the attack. 56
(d) The official summary of the incident, dated 6 July 1995, prepared
by the
Commissioner of Police of Taraba State for the Military Administrator, a
nd based on the
57
earlier reports and other information.
25. Unfortunately, in the period since the completion of the Counter-Memorial incidents have continued
to occur at Mberogo. These were the subject of a diplomatic note of 20 S
eptember 2000 by the Nigerian
Ministry of Foreign Affairs. 58These involved new Cameroon incursions into Mberogo at frequent
59
intervals between 1998 and 2000: these are summarized below, with refere
nces to relevant documents.
These exactions are part of a pattern of behaviour which plainly attract
s Cameroon's international
responsibility, the more so since there can be no doubt in this case tha
t it is the Nigerian village of
Mberogo which is involved, and not some eponymous Cameroonian surrogate.
CC24. Incident involving Cameroon incursions at Okwa from Matene
26. This incident involved an attack on Okwa village on 29 July 1986, du
ring which 80 Nigerian huts
60 61
were burnt and four Nigerians kidnapped. Cameroon's reply to this incident consists of two parts.
The first part revolves around Cameroon's assertion that the incident wa
s "linked to the destruction, by
the Nigerian inhabitants of the village of Okwa, of boundary pillar 103
marking the border...".
Cameroon seems to be attempting to excuse itself of responsibility by cl
aiming that this "act of
vandalism" "provoked" the July 1986 incident. However, a brief glance at
the document relied upon by
Cameroon 62reveals that the document is an internal Cameroonian reconnaissance rep
ort dated 10
January 1997 concerned with events which had recently taken place. Niger
ia is unclear how the mere
alleged removal of a boundary pillar - referred to in a 1997 report - co
uld have "provoked" a
Cameroonian attack 11 years earlier, which involved the burning of Niger
ian houses and the kidnapping
of Nigerians.
27. The second part involves reliance on a passage from the Court's judg
ment in the Namibia/Botswana
case, which concerned not State responsibility but the consequences for
territorial title of certain acts of
occupation performed by members of the Masubia tribe; the Court noted th
at these acts had not been
shown to have been performed "à titre de souverain". 63 Cameroon asserts that "because these events are
commonplace by reason of Nigeria's challenge to the boundary... Cameroon
referred the matter to the
64 65
Court for the purpose of confirming the boundary". As already pointed out, Cameroon
systematically confuses issues of the proof of territorial title and iss
ues of State responsibility, and this is
another example. No issue of State responsibility arose in the Namibia/Botswana case, and the Court
applied that part of international law relevant to territorial title. Th
e purpose of a claim of State
responsibility is not to confirm a boundary but to seek reparation for i
nternationally wrongful acts.
CC25-29. Additional incidents along the land boundary
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28. In its Counter-Memorial, Nigeria related a series of events involving incursions or attacks on
66
Nigerians, their houses or property along the boundary, based on a serie
s of Nigerian diplomatic notes.
Some of these incidents concerned Bakassi and have already been dealt wi
th. 67As to the others,68
Cameroon has little or nothing to say. In particular its weak response t
o the allegation of an incursion at
Karanchi may be noted. 69 Cameroon here effectively concedes that its gendarmes were on the wrong
side of the boundary.
C. Additional Counterclaims
29. In addition, Cameroon having raised under the rubric of State respon
sibility a series of further
70
allegations, Nigeria does likewise, although Nigeria will limit its new claims to (
a) matters referred to
for the first time in Cameroon's Reply or (b) events which have occurred since the submission of its
Counter-Memorial or which involve violations of a continuing character.
(a) The situation in and around the Bakassi Peninsula
30. The situation in and around the Bakassi Peninsula over the past seve
ral years has been characterised
by Nigerian civil administration interrupted and affected by a series of
attacks and assaults from
Cameroon forces. These attacks and assaults have been quite frequent, an
d though they have been
repulsed, they have involved considerable loss of life and damage, in pa
rticular so far as Nigerian
civilians are concerned.
CC30. Additional incidents affecting Nigerian civilians in and around th
e Bakassi Peninsula
31. Additional incidents since the completion of the Counter-Memorial include the following:
(a) Unlawful detention and torture of Mr. Thompson Effiong. In 1999 Mr
. Effiong was
taken by Cameroon gendarmes from the Bakassi peninsula and held in two d
ifferent
localities for 6 months before his release. He was beaten about the head
and subsequently
71
maltreated in prison. His statement of 11 November 2000 is annexed.
(b) Death of Mr. Ekpobari Siraka. On 30 December 1999, a Nigerian fish
erman, Mr.
Ekpobari Siraka, was killed as a result of firing by Cameroon soldiers.
A report and
72
photograph are annexed.
(c) Unlawful detention and treatment of Mr. Edem Daniel. On Sunday, 13
February 2000
Mr Edem Daniel and his son were seized, the son being wounded. Subsequen
tly Mr.
Daniel was detained for more than 3 months. His statement is annexed. 73
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(d) Detention and seizure of property of Mr Obong Edet Eyo. Mr. Obong
Edet Eyo was
arrested by Cameroon gendarmes while fishing; his boat and tackle were s
eized and he
74
was detained for 2 months before his release. His statement is annexed.
(e) Death of Mr. Okon Asuquo as a result of ramming by Cameroon speed
boat. In
October 2000, a fishing boat belonging to Mr Effiong Etim Effiong of Aba
na was rammed
at night, on the Rio del Rey, by a Cameroon speedboat driven by gendarme
s. The boat
was sunk and one of the crew, Mr. Okon Asuquo, was killed. Mr. Effiong's
statement is
75
annexed.
A number of other statements report incidents of this kind, involving Ca
meroon officials (gendarmes
and others).76
(b) Incidents in Lake Chad
CC31. Additional incidents at Kirta Wulgo ("Faransa")
32. In its Reply, Cameroon refers to a number of further documents concerning the villag
e it refers to as
77
"Faransa", the proper name of which is Kirta Wulgo. The documents report on the appointment of a
village head at "Faransa", a village which Cameroon elsewhere accepts is
Nigerian. 78They also reveal
that two Cameroonian officials, the Deputy Prefect of Makary and the Dis
trict Head of Hilé-Alifa, paid
an unauthorised visit to Kirta Wulgo and purported to exercise authority
there. These documents
evidence incidents which involve the international responsibility of Cam
eroon rather than Nigeria.
(c) The land boundary between Lake Chad and Bakassi
CC32. Further incidents at Tosso and Mberogo
33. The situation at Mberogo has already been referred to, 79 and continues to cause difficulties.
Members of the Nigerian legal team visited the village in March 2000. Th
ey were told that Cameroon
gendarmes visit the village on most market days in order to harass and e
xtort money from the villagers.
Thus:
(i) On Sunday 20 February 2000, the day after a visit by Nigerian Stat
e Surveyors, the
Ward Head of the area, Daniel Ngong, was stopped by Cameroon gendarmes a
nd asked
why he claimed the village for Nigeria. The Ward Head explained that it
was a Nigerian
village. The gendarmes, knowing who the Ward Head was, arrested him and
two others
(Benjamin Kuzang and Joseph Ntam Sa'ah): all three were taken to Furu-
awa in
Cameroon. Kuzang and Ntam Sa'ah were locked up overnight and then releas
ed unharmed
after being questioned. The Ward Head was kept under house arrest for 2
weeks in Furu-
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awa and was interrogated a number of times. He was eventually released o
n Sunday 5
March 2000. This was not the first time that the Ward Head of Mberogo ha
s been arrested
by Cameroonian gendarmes for denying the existence of Cameroonian sovere
ignty over
Mberogo: a similar incident took place on 30 May 1998.
(ii) On Tuesday 29 February 2000 Cameroonian Gendarmes came to the hou
se of three
brothers (Bawa Ali, Ndokari Ali and Sali Ali), situated by the Gamana
River in Mberogo.
The brothers were arrested and taken to Furu-awa, where they were made t
o pay 500
Naira each and had their guns confiscated.
(iii) On Thursday 16 March 2000 (Thursday being market day), gendarm
es came to the
village, arrested a woman and extorted 100 Naira from her before letting
her go.
Documents relating to these events, ranging from a letter of the Chief D
istrict Scribe through to the
80
Nigerian protest note to Cameroon of 20 September 2000, are annexed.
CC33. Cameroon encroachment at Turu
34. The position of the boundary at Turu has already been described 81 and depicted. 82 It is clear that
there is a substantial Cameroon encroachment over the boundary, which fo
llows a clearly defined
watershed. The Cameroonian authorities now claim that this is Cameroon l
and, and they insist on
collecting taxes there. The extent of the Cameroon encroachment is subst
antial.
(d) Conclusion
35. Nigeria claims, in the first instance, a declaration that Cameroon i
s internationally responsible with
respect to each of these events, with damages (if not agreed between th
e parties) to be determined by the
Court in a further phase of the proceedings.
__________
1 NC-M, para. 25.9, citing Annex NC-M 354.
2 See NC-M, para. 25.68, referring to a Note of 18 January 1971 (Annex
NC-M 400); para. 25.70, referring to a
situation report of 11 January 1982 (Annex NC-M 402); para. 25.71, ref
erring to an internal note of 20 December
1982 (Annex NC-M 403).
3 NC-M, para. 25.10 and Annex NC-M 355.
4 RC, para. 12.17.
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5 NC-M, p. 43. Evidently Cameroon failed to notice Ntokoba's inclusion i
n that list, despite having apparently
studied the list carefully for the purposes of the preceding paragraph o
f the Reply: RC, para. 12.16.
6 RC, para. 12.17.
7 Annex NC-M 355.
8 RC, para. 12.17.
9 NC-M, para 25.11 & Annex NC-M Annex 356.
10 RC, para. 12.18.
11 RC, para. 12.19. For this incident see NC-M, para. 25.12 and Annex NC
-M 357.
12 RC, para. 12.19.
13 RC, para. 12.20.
14 RC, para. 12.19.
15 RC, para. 12.21.
16 See NC-M, paras. 25.13-25.25. For convenience these incidents may be
numbered as follows:
Incident Reference Annex(es)
CC5 Attack on fishing ports, 17-18 NC-M, para. 25.13 NC-M 349
January 1994
CC6 Attack on Ine Ekpo, 28 February NC-M, para. 25.76 NC-M 408
1994
CC7 Shooting of Nigerian soldier, 2 MayNC-M, para. 25.77 NC-M 409
1994
CC8 Attacks on boats and fishermen, NC-M, para. 25.78 NC-M 410
West Atabong, 24/27 July 1995
CC9 Incident of 3 February 1996 NC-M, paras. 25.14- NC-M 358, 359, 360, 361
25.17
CC10 Further attacks on Nigerian NC-M, para. 25.17 NC-M 361
positions, 17-19 February 1996
CC11 Further attacks on fishermen & NC-M, para. 25.18 NC-M 362
traders, November-December 1996
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CC12 Miscellaneous attacks, February- NC-M, para. 25.24 NC-M 371-373
March 1998
CC13 Helicopter attacks on Archibong, NC-M, para. 25.20 NC-M 363
Abana etc, 19 March 1998
CC14 Attacks on Nigerian civilians, 6 NC-M, para. 25.21, NC-M 364-369
April 1998 25.22, 25.23
CC15 Attacks on Nigerian civilians, 18 NC-M, para. 25.21 NC-M 364
April 1998
CC16 Attacks on Nigerian civilians, 20 NC-M, para. 25.21, 25.24 NC-M 364, 370
April 1998
CC17 Attack on Nigerian fishermen, 25 NC-M, para. 25.25 NC-M 374
February 1999
17 RC, para. 12.21.
18 See above, paras. 151-169 of the Appendix to Chapter 16.
19 See Annexes NR 196 to NR 198.
20 RC, para. 12.21.
21 Nigeria cited the remarks of its Head of State (NC-M, para. 25.15)
not in order to found a separate
counterclaim, as Cameroon rather artificially suggests (RC, para. 12.22
), but in order to confirm the seriousness
with which Nigeria viewed, and still views, that unprovoked Cameroonian
attack. It is clear from the context and
the document exhibited as Annex NC-M 359 that the incident being referre
d to is precisely the attack of 3
February 1996.
22 NC-M, para. 25.21, referring to Annex NC-M 364.
23 See Annexes NR 202 to NR 205.
24 Annex NR 205.
25 Annex NR 206.
26 NC-M, paras. 25.27-25.39.
27 For convenience these incidents may be numbered as follows:
Incident Reference Annex(es)
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CC18 Appointment of Bulama and NC-M, para. 25.29-25.32 NC-M 375, 376
associated exactions, Kirta Wulgo,
March 1985
CC19 Extortion of payments, Kirta NC-M, paras. 25.33-34 NC-M 377, 378
Wulgo, June 1986
CC20 Temporary occupation of Kirta NC-M, para. 25.35-25.38 NC-M 379-382
Wulgo and associated exactions,
May 1987
28 RC, paras. 12.25-12.28.
29 RC, para. 12.28.
30 RC, para. 12.25.
31 NC-M, para. 14.5 and Atlas, Map 42.
32 NC-M, para. 25.28.
33 See RC, para. 3.87 and the Appendix to Chapter 3 of the Reply.
34 RC, para. 12.29.
35 See RC, para. 12.29 and see further above, paras. 16.26-16.27.
36 NC-M paras. 25.43-25.49.
37 RC, para. 12.32.
38 See above, paras. 15.20-15.21.
39 See above, paras. 7.169-7.181.
40 See NC-M, paras. 25.50 to 25.57
41 See above, paras. 7.137-7.144 and Fig. 7.29.
42 NC-M, para. 25.51.
43 NC-M, para. 25.57.
44 RC, paras. 12.33-12.34.
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45 Concerning the actions of certain Cameroon soldiers at Gaddamayo (NC
-M, para. 25.53) Cameroon
complains that Nigeria has not provided certain information. As to the d
ate of the incidents, it is clear from
paragraph 6 of the letter dated 23 April 1986 from the Mubi Directorate
of Internal Security (Annex NC-M 391)
that these infiltrations were occurring regularly as at that date: there
is thus no single date associated with this
counterclaim. Likewise, the number of Cameroonian soldiers involved and
the identity of the Nigerian victims
depended on the particular incident.
46 NC-M, paras. 25.58-25.63.
47 RC, paras. 12.35-12.38.
48 See above, paras. 7.197-7.204.
49 NC-M, para. 25.59.
50 RC, para. 12.36.
51 RC, p. 581. See above, para. 7.200 for a description of the site of t
his asserted Tosso.
52 Cameroon implies (RC, para. 12.37) that Nigeria endorses the existe
nce of "Mbelogo" in NC-M, Atlas, Map
75. But a glance at the the map in question confirms that it merely indi
cates the approximate position of the
"location of Mbelogo alleged by Cameroon", based on a map contained in C
ameroon's pleadings on which the
name "Mbelogo" has been superimposed (see p. 331 of Annex OC 1). This
is the only map Nigeria has seen
which indicates the position of a Cameroonian village called "Mbelogo".
53 Referred to in NC-M, para. 25.61.
54 Annex NR 207.
55 Annex NR 208.
56 Annex NR 209.
57 Annex NR 210.
58 See para. 33 and Annex NR 220 below.
59 ibid.
60 NC-M, paras. 25.64-25.65.
61 RC, paras. 12.39-12.41.
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62 Annex RC 1, p. 309
63 I.C.J. Judgment, 13 December 1999, para. 98.
64 RC, para. 12.41.
65 Above, para. 18.7 et seq.
66 NC-M, paras. 25.67-25.79.
67 Above, para. 3.
68 For convenience the non-Bakassi incidents may be numbered as follows:
Incident Reference Annex(es)
CC25 Incursions at Mayo Gertugal and NC-M, para. 25.69 NC-M 401
associated exactions, 1975
CC26 Extortion of payments, Bua Village,NC-M, paras. 25.72 NC-M 404
October 1984
CC27 Tax collection and other claims at NC-M, para. 25.73 NC-M 405
Mubi-Tosso, October 1984 and
subsequently
CC28 House to house search by NC-M, para. 25.74 NC-M 406
gendarmes at Kuma, 18 June 1985
CC29 Incursion at Karanchi, 8 February NC-M, para. 25.75 NC-M 407
1990
69 RC, para. 12.51, responding to NC-M, para. 25.75.
70 See above, Appendix to Chapter 16, paras. 110-206 where these are dis
cussed and refuted.
71 See Annex NR 211.
72 See Annex NR 212.
73 See Annex NR 213.
74 See Annex NR 214.
75 See Annex NR 215.
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76 See Annex NR 216.
77 RC, para. 11.196, referring inter alia to Annexes RC 110 and RC 111.
78 See e.g. RC, para. 3.87, and on the indisputable Nigerian sovereignty
over Kirta Wulgo see further above,
Appendix to Chapter 16, paras. 96-97.
79 See above, paras. 20-25.
80 See Annexes NR 217 to NR 220.
81 See above, paras. 7.132-7.136.
82 See above, Fig. 7.28, referred to at para. 7.133.
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PART V
STATE RESPONSIBILITY AND COUNTERCLAIMS
CHAPTER 19
CONCLUSIONS AND SUBMISSIONS
CONCLUSIONS AND SUBMISSIONS
19.1 Before reciting Nigeria's submissions, certain remarks are called f
or by way of conclusion to this
Rejoinder
The conduct of the case
19.2 In its pleadings and other documentation, Cameroon has engaged in e
xtended criticism of Nigeria's
conduct of the case, effectively alleging - in various terms and in vari
ous contexts - that the conduct of
Nigeria's case has been an abuse of process, and even that Nigeria shoul
d be treated as a party which has
failed to defend itself.So far as such allegations are actually relevant to the case, the matte
r is one for
the Court to judge in light of the pleadings. For its part, Nigeria has
sought to disclose relevant
information to the Court and to present the case to the best of its abil
ity, respectful of the Court and at
the same time seeking to vindicate its rights and those of its citizens.
19.3 Without going into detail, it is relevant to mention that the condu
ct of the case by Cameroon has not
been such as to assist either the Court or the Parties in relation to a
case which - entirely at the
instigation of Cameroon - covers a vast area of terrain and a very large
number of legal issues, involving
land, lacustrine and maritime sovereignty as well as sundry allegations
of State responsibility.
Cameroon's conduct of the case has been distinguished, inter alia, by the following procedural and
substantive features: (1) the production of additional irregular plead
ings;) the withdrawal of major
3
submissions (e.g. as to questions of State responsibility for individua
l incidents(3) the abandonment
of positions on which the Court, at Cameroon's instigation, had previous
ly acted to Nigeria's detriment
4
(e.g. the existence of a dispute over Typsan) and (4) the attempt to resile from the effects of its own
way of putting the case (e.g., as to "definitively specifying" the cour
se of the land boundaryNigeria
has expressed its positions, in careful and measured terms, on each of t
hese points and will not repeat
them here.
The Court's Interim Measures Order
19.4 Cameroon has also complained repeatedly as to breaches by Nigeria o
f the Court's Order of 15
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March 1996 on Provisional Measures. It has however done nothing to follo
w up those complaints, for
example by approaching the Court to clarify the scope of the Provisional
Measures. In this Rejoinder,
Nigeria has responded to the various Cameroon complaints, and has shown
them to be unfounded. To
the contrary, the incidents involving the civilian population in the Nig
erian villages on the Bakassi
Peninsula, recounted in the Appendix to Chapter 18 and related annexes,
strongly suggest that if
breaches of the Provisional Measures Order have occurred, they are attri
butable to Cameroon. 6
19.5 Subject to one point, there is in Nigeria's view nothing more to be
said on the matter. 7 That point
concerns Cameroon's protest letter of 28 September 2000, concerning "inc
idents" at Abana and Mayo
Fauru. Nigeria will not repeat what its Agent said in his reply of 25 Oc
tober 2000, which is annexed. 8
The allegation that Nigeria by constructing a secondary school and healt
h centre at Abana is in breach of
the Court's Order because it "completely destroys all available evidence
" is absurd. In fact there is no
evidence that Cameroon - for all its vaunted 40 years of "administration
" of the Bakassi Peninsula - ever
built a single school there, or any health centre. The Nigerian inhabita
nts of the Nigerian villages there
have looked entirely to mainland Nigeria for such facilities, as has bee
n shown comprehensively in
9
Chapter 3. Nor is there any indication of any concern on the part of Cameroon for
that Nigerian
population now, as witness the mere fact of a protest at the building of
a health centre, not to mention
the range of injuries suffered by that population in recent years at the
hands of Cameroon organs. As to
Mayo Fauru, the patent gap between the assertions of Cameroon and the fa
cts demonstrated by Nigeria
speaks for itself.
Reservation as to personal status and property rights along the boundary
19.6 Finally it is necessary to make an express reservation as to the ex
istence of acquired rights of a
legal character in respect of the status of persons and property rights
in all disputed areas. Especially
with respect to the sectors of the land boundary considered in Chapter 7
of this Rejoinder, the situation is
likely to arise that "a number of nationals of the one Party will, follo
wing the delimitation of the
disputed sectors, find themselves living in the territory of the other,
and property rights apparently
established under the laws of the one Party will be found to have been g
ranted over land which is part of
10
the territory of the other." For its part, in such situations Nigeria will take appropriate measures
to
ensure "full respect for acquired rights" and to act in "a humane and or
derly manner" 11 with respect to
any Cameroon citizens who, as a result of the Court's judgment, may unwi
ttingly find themselves and
their homes in Nigeria. In view of the evidence presented above as to th
e activities of Cameroon
gendarmes and others in the region of the border, it regrets to say that
it has far less confidence in the
opposite hypothesis.
19.7 As to the wells and other installations offshore the Bakassi Penins
ula, which have for the most part
been established and maintained without any protest by either party, Nig
eria has already dealt with the
legal consequences to be drawn from this fact. As already demonstrated,
it is the case that the dispute
over Bakassi itself has been pursued, by both Parties, independently of
the much more limited dispute as
to the area of overlapping licences south of Bakassi. Any solution to th
e question of maritime
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delimitation needs to take these considerations into account.
19.8 It may be noted, in this context, that rights of access and user ov
er maritime areas or rivers,
notwithstanding the recognition of territorial sovereignty or sovereign
rights in another State, are by no
means unprecedented. To take two recent examples, in the Yemen/Eritrea case, the Arbitral Tribunal
recognised the existence of a traditional fishing regime for nationals o
f both parties.2 In the Botswana/
Namibia case (although it concerned a river rather than the open seas), the I
nternational Court accepted
that nationals of each State had an established right of access and user
of the waters around the island.13
In both cases the Court was seeking to resolve a potential conflict betw
een, on the one hand, access to
and use of natural resources and, on the other hand, territorial soverei
gnty resulting from interstate
transactions. The present situation is not identical, of course, but the
re is at least some analogy.
Legitimate authority over human populations - such as the substantial Ni
gerian population of the
Bakassi peninsula - is one thing; control over off-shore non-living reso
urces is something else. In their
actual practice, both parties have recognised the distinction, even if C
ameroon has completely failed to
do so in its argument before the Court. In Nigeria's respectful submissi
on, the distinction is a most
important one, having regard to the significant implications for the sec
urity of the substantial
populations (overwhelmingly Nigerian populations) potentially affected
by a judgment of the Court.
SUBMISSIONS
For the reasons given herein, the Federal Republic of Nigeria, reserving
the right to amend and modify
these submissions in the light of any further pleadings in this case, re
spectfully requests that the Court
should:
(1) as to the Bakassi Peninsula, adjudge and declare:
(a) that sovereignty over the Peninsula is vested in the Federal Repub
lic of Nigeria;
(b) that Nigeria's sovereignty over Bakassi extends up to the boundary
with Cameroon
described in Chapter 11 of Nigeria's Counter-Memorial.
(2) as to Lake Chad, adjudge and declare:
(c) that the proposed "demarcation" under the auspices of the Lake Cha
d Basin
Commission, not having been ratified by Nigeria, is not binding upon it;
(d) that sovereignty over the areas in Lake Chad defined in paragraph
5.9 of this Rejoinder
and depicted in Figs. 5.2 and 5.3 facing page 242 (and including the Ni
gerian settlements
identified in paragraph 4.1 of this Rejoinder) is vested in the Federal Republic of Nigeria;
(e) that outstanding issues of the delimitation and demarcation within
the area of Lake
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Chad are to be resolved by the Parties to the Lake Chad Basin Commission
within the
framework of the constitution and procedures of the Commission.
(f) that in any event, the operation intended to lead to an overall de
limitation of
boundaries on Lake Chad is legally without prejudice to the title to par
ticular areas of the
Lake Chad region inhering in Nigeria as a consequence of the historical
consolidation of
title and the acquiescence of Cameroon.
(3) as to the central sectors of the land boundary, adjudge and declare:
(a) that the Court's jurisdiction extends to the definitive specificat
ion of the land boundary
between Lake Chad and the sea;
(b) that the mouth of the Ebeji, marking the beginning of the land bou
ndary, is located at
the point where the north-east channel of the Ebeji flows into the featu
re marked "Pond"
on the Map shown as Fig. 7.1 of this Rejoinder, which location is at latitude 12° 31' 45"N,
longitude 14° 13' 00"E (Adindan Datum);
(c) that subject to the clarifications, interpretations and variations
explained in Chapter 7
of this Rejoinder, the land boundary between the mouth of the Ebeji and the point on the
thalweg of the Akpa Yafe which is opposite the mid-point of the mouth of
Archibong
Creek is delimited by the terms of:
(i) paragraphs 2-61 of the Thomson-Marchand Declaration, confirmed by
the Exchange of
Letters of 9 January 1931;
(ii) the Nigeria (Protectorate and Cameroons) Order in Council of 2
August 1946, (section
6(1) and the Second Schedule thereto;
(iii) paragraphs 13-21 of the Anglo-German Demarcation Agreement of 12
April 1913;
and
(iv) Articles XV to XVII of the Anglo-German Treaty of 11 March 1913.
(d) that the effect of the first two of those instruments, as clarifie
d, interpreted or varied in
the manner identified by Nigeria, is as set out in the Appendix to Chapt
er 8 and delineated
in the maps in the Atlas submitted with this Rejoinder.
(4) as to the maritime boundary, adjudge and declare:
(e) that the Court lacks jurisdiction over Cameroon's maritime claim f
rom the point at
which its claim line enters waters claimed by or recognised by Nigeria a
s belonging to
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Equatorial Guinea, or alternatively that Cameroon' s claim is inadmissib
le to that extent;
(f) that Cameroon's claim to a maritime boundary based on the global d
ivision of maritime
zones in the Gulf of Guinea is inadmissible, and that the parties are un
der an obligation,
pursuant to Articles 74 and 83 of the United Nations Law of the Sea Conv
ention, to
negotiate in good faith with a view to agreeing on an equitable delimita
tion of their
respective maritime zones, such delimitation to take into account, in pa
rticular, the need to
respect existing rights to explore and exploit the mineral resources of
the continental shelf,
granted by either party prior to 29 March 1994 without written protest f
rom the other, and
the need to respect the reasonable maritime claims of third States;
(g) in the alternative, that Cameroon's claim to a maritime boundary b
ased on the global
division of maritime zones in the Gulf of Guinea is unfounded in law and
is rejected;
(h) that, to the extent that Cameroon's claim to a maritime boundary m
ay be held
admissible in the present proceedings, Cameroon's claim to a maritime bo
undary to the
west and south of the area of overlapping licences, as shown on Fig. 10.
2 of this
Rejoinder, is rejected;
(i) that the respective territorial waters of the two States are divid
ed by a median line
boundary within the Rio del Rey;
(j) that, beyond the Rio del Rey, the respective maritime zones of the
parties are to be
delimited in accordance with the principle of equidistance, to the point
where the line so
drawn meets the median line boundary with Equatorial Guinea at approxima
tely 4° 6' N,
8° 30' E,.
(5) as to Cameroon's claims of State responsibility, adjudge and declare:
that, to the extent to which any such claims are still maintained by Cam
eroon, and are
admissible, those claims are unfounded in fact and law; and
(6) as to Nigeria's counter-claims, as specified in Part VI of the Counter-Memorial and in Chapter 18 of
this Rejoinder, adjudge and declare:
that Cameroon bears responsibility to Nigeria in respect of each of thos
e claims, the
amount of reparation due therefor, if not agreed between the parties wit
hin six months of
the date of judgment, to be determined by the Court in a further judgmen
t.
3 January 2001
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Chief Bola Ige, S.A.N.
Honourable Attorney-General of the Federation
and Minister of Justice,
Agent of the Federal Republic of Nigeria
__________
1 See above, para. 9.2.
2 See above, para. 15.93 & Annex NR 184.
3 See above, paras. 16.20-16.32.
4 See above, paras. 7.169-7.181, 16.47-16.54.
5 See above, paras. 6.17-6.22, 6.41-6.43.
6 See above, Appendix to Chapter 18, paras. 2-14, 30.
7 See in particular, Chapter 16, Appendix, paras. 161-174, 180-184, 188-
191.
8 Annex NR 183.
9 See above, paragraph 3.344 and the accompanying Table comparing eviden
ce of Nigerian activity and
Cameroon inactivity.
10 cf. Case concerning the Land, island and Maritime Frontier Dispute (El Salv
ador/Honduras), ICJ Reports
1992 p. 400, para. 66.
11 ibid. pp. 400-401, para. 66.
12 See the Award of 9 October 1998, 114 ILR 1 at p. 137 paras. 525-526;
Award of 17 December 1999 (Phase
II), Ch. IV paras. 87-112. On co-operation in relation to hydrocarbons se
e ibid., paras. 85-86.
13 Judgment of 13 December 1999, English text in 39 ILM 310 at p. 351 pa
ras. 102-103.
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CITY STATES OF OLD CALABAR
Reproduced from Map 20 of Nigeria’s Counter-Memorial Atlas Bold, c.1822 Fig. 10.1
; Actual limitof Cameroonoperations
- Cameroon pipelines Cameroon'sMap R25
showing Cameroonianwells and pipelines.
:.- Cameroonwells
(Wellsand pipelinesfrom IHS Energydata) Fig. 10.2
8"45'
Area of overlap Cameroonlicencesfrom
1 IHS Energydata.Fig. 10.3 Fig. 10.4
+ O *
8"30'
ri5'
O 10 km CameroonwellandpipelinedatafrornIHSEnergy.
Forillustpurposesonly. OffshoreInstallations
NigerianPipelines Nigeriawells
CameroonPipelines 3)C EqGuineawellsFig.10.5Fig. 10.6Fig. 10.7Fig. 10.8Fig. 10.9Fig. 10.10
2
Y L-
hl-O2
1)
O 'O.Fig.11.1 Fig.12.1
i*. Fig.13.1
Bightof
Bonny
Punta
SketchMap:Cameroon coastal frontage Fig.13.2
SketchMap:Carneroon coastline Secto3 r
O 10 20 30 40 50nrn
1 Fig. 13.3
SketchMap:CamerooncoastlineSector2
FX~ 3,.3 IW! ," P
km
50
only.
40
Nigerian
30 Map:
purposes and dispute
20
ill10trative the
Sketch to
ForO
coastlines relevant
Carneroon
approximate
lengths are
measured
All
5" 4- 3"Fig. 13.5 Fig. 13.6
4"15'
4"
8"15' 8"30'
O 1O 20 km
Cameroonwells from IHS Energy.
I
For illustrative purposes only 3& Cameroon Wells Offshore Wells by Year
Nigerian Wells
;3(C Eq Guinea Wells
1977 Year of Drilling Fig. 13.7
20 km + Cameroon Wells
For illustrative purposes only * Nigerian Wells Offshore Installations
I(C Eq Guinea Wells and Claimed Boundaries
Cameroonwells andpipel-nes Nigerian Pipelines
from IHSEnergy. - Cameroon Pipelines Fig.13.8
84 5' For illustrativepurposesonly
Putative MaritimeBoundary
basedon Cameroon'sClaimto Bakassi Fig.13.9
For illustrative purposes only
Nigeria's boundary
in and seawards of
the Rio del Rey Figure 16.1
8°15'E 8°30'E 8°45'E
5°00'N 5°00'N
NIGERIA
CAMEROON
a e
A kp Y af
Cr
os
s
R
v
r
4°45'N 4°45'N
Rio del Rey
BAKASSI
4°35’ N
8°22.5’ E
4°30'N 4°30'N
4°31’ N
8°28’ E
BIGHT OF BONNY
THE CROSS RIVER ESTUARY
4°15'N 4°15'N
5 0 1 0 5 1
Miles
5 0 1 0 5 1
Kilometres
8°15'E 8°30'E 8°45'E
For illustrative purposes only. 1:397,000 Figure 16.2
9°E
NIGERIA
CAMEROON
5°N 5°N
Mundemba
Calabar
pa fe
C Ak Ya
o
s Isangele
i
r
Ri Ekondo Titi
o
e
R
ey
BAKASSI
Cameroon
BIGHT OF BONNY Mountain
Buea
CALABAR TO BUEA
0 10 20 30
4°N 4°N
Miles
0 0 3 10 20
Kilometres
Bimbia River
9°E
For illustrative purposes only.
1:665,000 Figure 16.3
8°15'E 8°30'E 8°45'E
5°00'N 5°00'N
NIGERIA
CAMEROON
a e
A kp Y af
Cr
os
s
R
v
r
4°45'N 4°45'N
Rio del Rey
BAKASSI
4°33’ N
4°30'N 8°23’ E 4°30'N
4°31’ N
8°28’ E
BIGHT OF BONNY
THE CROSS RIVER ESTUARY
4°15'N 4°15'N
5 0 1 0 5 1
Miles
5 0 1 0 5 1
Kilometres
8°15'E 8°30'E 8°45'E
For illustrative purposes only. 1:397,000 Figure 16.4
8°35'E 8°40'E
4°50'N 4°50'N
ArcCreekg
THE BAKASSI PENINSULA
iver 0 6 4 2
af R
pa Y
A k Miles
0 2 4 6 8
Kilometres
Urufian
Ikankan
Ine Nk kanee Ok kurre II
Tait
4°45'N ek 4°45'N
Island biba Cr
Campton O
Island n
yn
. ka Cr
Ok Cr
araap
Creek
Ine AAkppa IIkangg
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
i e CAMEROON
R b er NIGERIA
King Pt. Yam
Austin Pt. e Atina
Yf Pt.
r
a i
Inikoi C. Cr R
Akp Island A it Ri
o
Bakassi Pt. Bakasi
4°40'N ian 4°40'N
Inee Ikoii Ndian Pt. N d
kw Perkins
b r Pt.
n tu C
a un
W
Ch Cr.
Inee Uttan Vg nn
an el Ay
t Three Way osee Hecuba
C Pt.
C Akwabana r. Junction
oo Island D
ie e
l
Cr .
Hanley Pt. n el Erong
han
C Island
a nee Uttann Assuquuoo n
an ae Cr
ab
Parry Pt. kw ni Cr
4°35'N A De Myrtle Pt.
4°35'N
Bakassi Peninstaa Re
Receptive cpocle C. y
Pt. Abana Bay Trojan
Pt.
Abbaanaa
De
n
Cr. s Cr.
r
A
Est
ua
y
nl
Ch
or
N
d h hnl
u o C nCr. West Pt.
So S Ari
West Atabong
si
4°30'N ka 4°30'N
Ba
Edem Abasi
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.1
DISTRIBUTION OF EFIK AND EFFIAT PEOPLES
8°E
Itu CROSS RIVER STATE
Ikot-Ekpene
NIGERIA
Uyo EFIK
5°N
CALABAR C
A
Ikot Nakanda M
E
EFFIAT R
Aka Yae O
Co Ikang O
Oron ss Archibong
Rv N
AKWA IBOM STATE er
James Town
Rio del Rey
Eket
BAKASSI
Abana
West Atabong
East
Atabong
LEGEND:
EFFIAT EFIK
BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only. 1:665,000 Figure 3.2
LOCATION OF EKPE SHRINES
8°E
CROSS RIVER STATE
NIGERIA
EFIK
5°N
Calabaar C
A
Ikot Nakanda M
E
EFFIAT R
C Akp Yf O
s O
R Archibong
AKWA IBOM STATE e N
r
James Town Rio del Rey
BAKASSI
Abbana
WeesttAtaboong
LEGEND:
EFFIAT EFIK
BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only.
1:665,000 Figure 3.3
SETTLEMENT OF BAKASSIVILLAGES
Calabar EFIK
C
NIGERIA A
Ikot Nakanda M
E
R
Archibong O
kpa afe Akwa O
Cr A Y
Oron os Ikang Mbenmong N
R Nwanyo
EFFIAT ie Ine Ikang
r
Ine Akpa Ikang
James Town
Ine Utan Rio del Rey
Ine Effiom
Eket
BAKASSI
Abana
West Atabong Ine Atayo
East Atabong
LEGEND: BIGHT OF BONNY
EFFIAT EFIK
Scale
0 0 2 0 1
Miles
0 0 021
Kilometres
8°E
For illustrative purposes only. 1:505,000 Figure 3.4
BAKASSI LOCAL GOVERNMENT ADMINISTRATION: 1960
8°E
Itu
Ikot-Ekpene
NIGERIA
EASTERN
REGION
Uyo CALABAR DIVISION
5°N
CALABAR
C
A A
k Ikot Nakanda M
p
a E
b R
u
y Akpa Yaf O
ro o Ikang
ss Archibong O
Oron Ri Lo N
ve c
r a
l
C
o
u
n
EKET DIVISION James c
Town il
Eket Ib
a k a
L Abana y
o c a
l C o u
n c il
West Atabong
East
Atabong
LEGEND:
EFFIAT EFIK
Administrative Division Boundaries
BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only. 1:665,000 Figure 3.5
BAKASSI LOCAL GOVERNMENT ADMINISTRATION: 1967
8°E
Itu
NIGERIA
Ikot-Ekpene
SOUTH EASTERN
STATE
Uyo CALABAR DIVISION
5°N
CALABAR C
A A
k
p Ikot Nakanda M
a E
b
u R
y pa f
C o Ikang Ak Ya O
rs O
Oron R C Archibong
v o N
er u
ORON n
DIVISION t
y
C
o
James u
n c
Town i l
O r
Eket o n
E a s y
t C Abana
o u n t
y C o u n ci l
West Atabong
East
Atabong
LEGEND:
EFFIAT EFIK
Administrative Division Boundaries
Administrative Sub-Division Boundaries BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only. 1:665,000 Figure 3.6
BAKASSI LOCAL GOVERNMENT ADMINISTRATION: 1976
8°E
Itu
Ikot-Ekpene NIGERIA
CROSS RIVER
Odukpani
STATE
Uyo O
5°N
d
CALABAR u
k C
p
a A
n Ikot Nakanda M
i
L E
o
c R
al kpa Yaf O
Cr Ikang A
os G Archibong O
Oron R o N
e ve
r r
n
m
e
nt
A
O James r
ro Town ea
n
Eket L o
c a
l G Abana ey
o ve r
n m e n t
A r e a
West Atabong
East
Atabong
LEGEND:
EFFIAT EFIK
Administrative Local Government Boundaries BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only. 1:665,000 Figure 3.7
BAKASSI LOCAL GOVERNMENT ADMINISTRATION: 1987
8°E
CROSS RIVER
Itu
Ikot-Ekpene
STATE
NIGERIA
Odukpani
Uyo
5°N
CALABAR
C
A A
k Ikot Nakanda M
p
a E
b R
AKWA IBOM u pa e
C yo Ikang Ak Yaf O
s O
STATE Oron sR Lo Archibong
STATE v c N
Okobo r a
Local l
Okopedi Gov't G
Area ov
e
rn
Enwang James m
Town e n
t A
Eket re a
Effiat/Mbo Abana y
Local Government Area
West Atabong
Ine Akpak
East
Okobo
Atabong
Local
LEGEND: Gov't
Area
EFFIAT EFIK
State Boundary
Administrative Local Government Boundaries BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only. 1:665,000 Figure 3.8
BAKASSI LOCAL GOVERNMENT ADMINISTRATION: 1996
8°E
CROSS RIVER
Itu
Ikot-Ekpene STATE
NIGERIA
Odukpani
Uyo
5°N
m en tA rea
CALABAR ove rn C
c alG
o Lo A
buy Ikot Nakanda M
kpa E
A
AKWA IBOM R
C Akp Yfe O
os Ikang O
STATE Oron sR Archibong
STATE Okobo ve a N
Local r k
Gov't s
Okopedi Area s
i
Lo
James c
Enwang Town al
Eket Effiat/Mbo Local G
Government o
Abana v y
Area t
A
West re
East a
Atabong
Atabong
LEGEND:
EFFIAT EFIK
State Boundary
Administrative Local Government Boundaries
BIGHT OF BONNY
Scale
0 10 20 30
Miles
0 0 3 10 20
Kilometres
8°E
For illustrative purposes only.
1:665,000 Figure 3.9
8°30'E 8°35'E 8°40'E
Exercise of Authority by Traditional Rulers Archibong 4°50'N
Creek
Akwa
ive
af R Archibong
pa Y Town
A k
Mbenmong
Nwanyo
Ine Nkane Okure II
Ine Ikang UrufiaIkankan
Ine Nkane Okure I
Tait
4°45'N 4°45'N
ba Cree
Island Campton O bi
Island A
ya
nka Cr.
Ine Ukpong r
O ara p C
Creek a
Dayspring Ine Akpa Ikang
Pt.
Yambeke
Dayspring Peninsula r
ive Island CAMEROON
R r NIGERIA
King Pt. mb e
Ya
Austin Pt. e Atina
af Ine Ekpo Pt.
Y
er
a Inikoi C r. iv
Island . oC R R
Akp Ait io
i
4°40'N Bakassi Pt. Bakas 4°40'N
dian
Ine Ekoi A Ndian Pt. N
kw PerPt.s
b C
a nt
Wu
V Cha Cr
Ine Utan il ne
at l Ao Hecuba
Three Way see Pt.
Cr. Junction
Co Akwabana
cd Island D
e e
l
Cr . Ine Effiom
Hanley Pt. nel Erong
han
C Island
a Ine Utan Asuquo Sn
an ae Cr
Parry Pt. ab
Akw nni Cr.
4°35'N De Myrtle Pt. 4°35'N
Bakassi Peninsala Re
Receptive cpole Cr. y
Pt. Abana Bay
Pt.jan
Abana Ntuen
De
Abana Akpa n
Nkanya Cr. Cr
g
Ar Ine Mba
Ishie Est
ua
y
nl Ine Akpak
C Inua Mba
Ufot Ine rt
No
Akwa Ine Ibekwe d Itung nl Ine Atayo
un u Ch Cr West Pt.
Onosi So S Aron
West Atabong sEast Atabong
as
4°30'N ak 4°30'N
B Ine Itung Akwa Ine Itung
Ibuot Utan Ine Odiong
Ibekwe
Ibiong Utan Edem Abasi
Itung
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.10
8°20'E 8°25'E 8°30'E 8°35'E 8°40'E 8°45'E
Jurisdiction of Customary Law Courts
k
n
.R
4°55'N 4°55'N
G
re
at
Ikot Nakanda
K
w a
James R
Island ve
r
4°50'N Archibong 4°50'N
Creek
C
RO Rier
AK S Yafe
W S kpa
Parrot A A
Island R
IB V
O ER
M Ikang
CAMEROON
ka
ngP
a. U Ikankan
. IInee N Nk ka annee O Ok kuurree rufian
C Kwa aR
ro K
s Island
Green Patch Pt. itt Tait
L
4°45'N e 4°45'N
Island boia C er
Campton O
R Island An
v ank
er . a C .r
O k a Cr
r p a
C reek
Dayspring Ine Akpa Ikang
Pt.
Yambeke
Dayspring Peninsula er Island
Richardson Pt. i e
R ber
King Pt. Yam
Austin Pt. e Atina
Yaf Pt.
r
M bu a NIGERIA ve
p Inikoi Cr. C. Ri
Rv Ak Island Atio R
r o
Bakassi Pt. Baasi
4°40'N an 4°40'N
Ndian Pt. N di
Ine Ekoi k Perkins
wa r Pt.
Jamestown a u C
na ut
W
C rC
Vg an
in nl A
t yoee Hecuba
C Three Way Pt.
C Akwabana . Junction
oo Island D
de
el N g
Camp Pt. Cr.
el Koloni Erong
Hanley Pt. ann
Tom Shot Pt. Ch Fiishhiinngg Island
S
ana Poorrtt nae r
ab C
Parry Pt. kw ns C.r
A Den Myrtle Pt.
4°35'N 4°35'N
Bakassi Penintula R
Receptive cpo C. y
Pt. Abana Bay cel
Trojan
Pt.
D
Abana n
Abana Ntuen
Cr. Cr.
gs
A
Es
ua
ry
.l
Cn
rt
No Ine Atayo
d nl
u u Ch Cr West Pt.
So S Aroi
si
kas
4°30'N Ba 4°30'N
Ine Odiong
BIGHT OF BONNY
8°20'E 8°25'E 8°30'E 8°35'E 8°40'E 8°45'E
For illustrative purposes only.
1:284,000 Figure 3.11
4°50'N 8°30'E 8°35'E 8°40'E
Maintenance of Public Order Archibong 4°50'N
Creek
r
Riv
Yae Archhiboongg
Akpa Town
Mbenmong
Ikang Nwwaannyoo
UrufianIkanka
Ine UUnnyaa
Tait
4°45'N
Cree 4°45'N
Island Campton O boba
Island
Ay
aka r.
r C
O kat a C
pa
Creek
Dayspring
Pt.
r Yambeke
Dayspring Peninsula ve Island
Ri re CAMEROON
King Pt. m be NIGERIA
Ya
e
Austin Pt. af AtPt.
Y
e
a Inikoi . i
Island C. oCr R R
Akp Atn io
i
4°40'N Bakassi Pt. Baka 4°40'N
Nd in
Ine Ekoi A Ndian Pt.
w PerkPt.
a C
a nt
Wu
V Ca C.r
ia ne
nt l Ayo Hecuba
Three Way see Pt.
C. Junction
ro Akwabana
cod Island D
ie e
C l
.
l
Hanley Pt. nne Erong
Cha
Koloni Island
Fishhing
na Poorrtt Snk
ba e Cr
Parry Pt. w a Ifiari r
Ak enns C
4°35'N D Myrtle Pt. 4°35'N
Bakassi Peninsula R
Receptive ac Cr. e
ocle y
Pt. Abana Bay Trojan
Pt.
Akpa D
Abana n
Nkanya
C r. C r
u
r
A E
su
ary
.l
hn Inua Mba
tC
No
l
nd t Ch r
o Su rin C West Pt.
West Atabong S A
i
as
4°30'N ak 4°30'N
B
Edem Abasi
Ine Odiong
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.12
4°50'N 8°30'E 8°35'E 8°40'E
Exercise of Civil Jurisdiction Archibong 4°50'N
Creek
r
Ine Rive
Nttakabba Yaf
A kpa
Ikang
n
UrufianIkanka
Inee Nwwaayyo
nee Nkkaanee Okkuuree
Tait
4°45'N 4°45'N
a Crek
Island Campton Obib
Island A
Clear Heart nya
nka Cr
Fishingg Porrtt C
Okat a
Creek
Ine Akpa Ikang
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
i CAMEROON
R er NIGERIA
King Pt. Y amb
Austin Pt. e Inee Ekppo Atina
Yaf Pt.
r
a v
Inikoi C. Cr Ri
Akp Island tio R
A o
Bakassi Pt. Bakasi
4°40'N an 4°40'N
Ine Ekoi Ndian Pt. N di
k Perkins
a r Pt.
bn u C
a ut
W
Ch C.r
Vg nn
an el Ay
t Three Way osee Hecuba
C Pt.
C Akwabana r. Junction
oo Island D
ie e
l
Cr.
Hanley Pt. nel Erong
han
C Island
Koloni
a Fishiing n
an Porrtt ae Cr
Parry Pt. ab
A k nni Cr
4°35'N De Myrtle Pt. 4°35'N
Bakassi Peninstaa C Re
Receptive cpocle . y
Pt. Abana Bay Trojan
Pt.
Abana Dn
C Cr.
r. s
r
A E
stu
ar
y
h.l
hC
or
N l
nd t Chn r.
ou o inC West Pt.
S S Ar
i
s
4°30'N aa 4°30'N
B
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.13
8°35'E 8°40'E
4Taxation Archibong 4°50'N
Creek
Akwa
ver
fe Ri Arrchhibonngg
pa Ya
Ak Town
Mbenmong
Nwwaanyyo
n
UrufianIkanka
Tait
4°45'N 4°45'N
Crek
Island Campton Obioba
Island A
na
nkaC r
r
Okat a C
pa
Creek
Dayspring
Pt.
r Yambeke
Dayspring Peninsula v Island
Ri re CAMEROON
King Pt. be NIGERIA
Yam
Austin Pt. af Ine EEkppo Atina
Y Pt.
r
a Inikoi iv
Cr. Cr. R
Akp Island Atno Ri
o
Bakassi Pt. Bakasi
4°40'N ian 4°40'N
Ndian Pt. N d
Ak Perkins
a r Pt.
n u C
a ut
W
Ch .r
g nn C
an l A
t yose Hecuba
C Three Way Pt.
C Akwabana r. Junction
oc
odl Island D
e l
Cr.
el Erong
Hanley Pt. ann
C h Island
na Sak .
ba e Cr
Parry Pt. kwa s Cr.
A eni
4°35'N D Myrtle Pt. 4°35'N
Bakassi Peninsula R
ac Cr. e
Receptive ocle y
Pt. Abana Bay Trojan
Pt.
D
Abana en
Cr. Cr.
s
r
A E
st
ua
ry
hn.l Ine Akpak
hC
ot
N . Ine Atayo
d t hl .
un o C n Cr West Pt.
West Atabong S S Aro
ss
4°30'N k East Atabong 4°30'N
Ba
Ine Odiong
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.14
4°50'N 8°35'E 8°40'E
Census Archibong 4°50'N
Creek
r
Riv
Yae
Akpa
n
UrufianIkanka
Ine Nk kanee Ok kure II
Tait
4°45'N 4°45'N
a Cree
Island Campton O bob
Island A
ya
ka Cr.
C
O katpa
Creek
Ine AAkppa Ikaangg
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
i CAMEROON
R ere NIGERIA
King Pt. Yam b
Austin Pt. e Atina
Yaf Pt.
r
a ve
Inikoi C. Cr. Ri
Akp Island tno R
A io
Bakassi Pt. Bakai
4°40'N an 4°40'N
Inee Ekooii Ndian Pt. Nd i
k Perkins
wa r Pt.
an u C
a ut
W
Ch C.r
Inee Uttan Vg an
in l Ay
t Three Way osee Hecuba
C Pt.
C Akwabana . Junction
rco Island D
ie e
l
C.
Hanley Pt. nel Erong
han
C Island
a Ine Uttann Assuquuoo Sn
a ke Cr
Parry Pt. ab
Akw nns C r
4°35'N De Myrtle Pt. 4°35'N
Bakassi Peninsala C e
Receptive cocle r. y
Pt. Abana Bay Trojan
Pt.
Abbanna Nttueen
Abbanna Dn
C C r
r. s
ru
A E
st
ua
ry
hn.l
hC
ot
N l
nd t Ch r
o ou in C West Pt.
S S Ar
i
s
4°30'N aka 4°30'N
B
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.15
Delimitation of Electoral Wards 8°35'E 8°40'E 4°50'N
Archibong
Creek
ivr
af R Archibong
kpa Y
A Town
Ikang
Ine Ikaang Ine Nk kanee Okkuure IIIIufianIkankan
Inee Nkkanne Ok kure II
Tait
4°45'N ek 4°45'N
Island biba Cre
Campton O
Island An
Ine Ukkpponng ynk
r a Cr
Okr C
tpa
Creek
Ine Akpa Ikang
Dayspring
Pt.
Yambeke
Dayspring Peninsula r
ive Island CAMEROON
R ere NIGERIA
King Pt. am b
Y
Austin Pt. e Atina
Yaf Pt.
r
a nee Uttangg Edimm ie
Inikoi C. C.r R
Akp Island Ato Ri
o
4°40'N Bakassi Pt. Bakasi
dian 4°40'N
Ine Ekoi A Ndian Pt. N
w PerPt.s
a Cr
na nu
Wu
C
i hn C.r
Ine Utan ga nl A
t osee Hecuba
C Three Way Pt.
C Akwabana . Junction
rco Island D
le e
l
C. Ine Effiom
Hanley Pt. nel Erong
han
C Island
a Ine Utan Asuquo na
ban e Cr
Parry Pt. wa r.
Ak enns C
4°35'N D Myrtle Pt. 4°35'N
Bakassi Peninstla R
Receptive aco C. y
Pt. Abana Bay cle
Trojan
Abana Ntuen Pt.
Abbaana De
Akpa n
Nkanya
Cr. s Cr.
r
A Ine Mba E
stu
ar
y
hl
tC
Nor
n.
nd u Ch Cr
o So Arn West Pt.
WeesstAttaboongg S
si
kas EasttAttaboongg
4°30'N Ba 4°30'N
Edem Abasi
nee Oddiiongg
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.16
4°50'N 8°30'E 8°35'E 8°40'E
Participation in Parliamentary Elections Archibong 4°50'N
Creek
Point A
Akwa
ier
afe R Archibong
kpa Y
A Town
Point B
Point C
kan
UrufianIkan
Point D
Tait
4°45'N 4°45'N
Cree
Island Campton Obioba
Island
Any
anka .
r Cr
O ar C
tpa
Creek
Ine Akpa Ikang
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
iv e CAMEROON
R b er NIGERIA
King Pt. Ya m
Austin Pt. e Atina
Yaf Pt.
r
a ve
Inikoi Cr .r Ri
Akp Island . io C R
At io
si
4°40'N Bakassi Pt. Baka 4°40'N
N dian
A Ndian Pt. Perkins
w . Pt.
a Cr
a nt
Wu
V Cha C.r
il ne
at l Ayo
Three Way ee HePt.a
C. Junction
r Akwabana
co Island D
ie e
l
Cr.
nel Erong
Hanley Pt. han
C Island
S
ana nake r.
ab C
Parry Pt. kw is Cr
A Den Myrtle Pt.
4°35'N 4°35'N
Bakassi Peninsula R
Receptive acp C. e
ocle y
Pt. Abana Bay Trojan
Abana Ntuen Pt.
D
Abana Akpa en
Nkanya
C . Cr.
s
r
A E
stu
ar
Inua Mba y
nl Ine Akpak
hCh
or
N
d h hnl Ine Atayo
un u C nCr. West Pt.
Onosi So So Ari
West Atabong ss East Atabong
4°30'N ka
Ba 4°30'N
Ine Odiong
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.17
8°30'E 8°35'E 8°40'E
Public Education 4°50'N
Archibong
Creek
Point A
r
Rive
Yaf Archibong
Akpa Town
Mbenmong
Nwanyo
Ikang Point B
Point C
UrufianIkankan
Ine Nkane Okure Point D
Tait
4°45'N k 4°45'N
Island iba Cre
Campton Ob
Island A
nyn
ka Cr.
r
Okaa p C
Creek a
Dayspring
Pt.
r Yambeke
Dayspring Peninsula ve Island CAMEROON
Ri re
King Pt. m be NIGERIA
Ya
e
Austin Pt. af Atina
Y Pt.
e
a Inikoi i
C. Cr. R
Akp Island Aito Ri
o
Bakassi Pt. B aksi
4°40'N in 4°40'N
Ine Ekoi Ndian Pt. N d
k Perkins
a r Pt.
n C
a unu
W
C r.
g an C
a nl A
t yosee Hecuba
Three Way Pt.
Cr. Junction
Crc Akwabana
oi Island D
le e
C l
r .
l
Hanley Pt. n ne Erong
ha
C Island
a Sna
ba ke Cr
Parry Pt. w a
Ak nni Cr.
4°35'N De Myrtle Pt. 4°35'N
Bakassi Peninstaa e
Receptive cpocle C. y
Pt. Abana Bay
Trojan
Pt.
Akpa De
Abana n
Nkanya
Cr. Cr
u
Ag
E s
tua
ry
l
hn
rhC
No
l.
nd t Ch r
Onosi ou o rin C West Pt.
S S A
i
West Atabong ss East Atabong
4°30'N ak 4°30'N
B
Ibekwe
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.18
4°50'N 8°30'E 8°35'E 8°40'E
Public Works Archibong 4°50'N
Creek
Point A
r
Rive
Yaf Archibong
A kpa Town
Ikang Point B
Point C
Ine Ikang Ine Nkane Okure II UrufianIkankan
Point D
Ine Nkane Okure I
Tait
4°45'N
C rek 4°45'N
Island Campton Obiba
Island
ny
Ine UUkkpoongg nka r
r C
Okar t C
aap
Creek
Ine Akpa Ikang
Dayspring
Pt.
r Yambeke
Dayspring Peninsula ve Island CAMEROON
Ri r
King Pt. mb e NIGERIA
Y a
e
Austin Pt. af AtPt.
Y
er
a Inikoi . i
Island C. o Cr R R
Akp A it o
i
4°40'N Bakassi Pt. Bakas 4°40'N
dian
Ine Ekoi A Ndian Pt. N
kw PerPt.s
b Cr
a ntu
W
V Cha Cr
Ine Utan gl ne
nt l Ao
Three Way see HePt.a
Cr. Junction
ro Akwabana
od Island D
ie e
C l
r . Ine Effiom
l
Hanley Pt. nne Erong
ha
C Island
na Ine Utan Asuquo na
ba e Cr
Parry Pt. w a .
A k enni Cr
4°35'N D Myrtle Pt. 4°35'N
Bakassi Peninsula R
tc C. e
Receptive pocle y
Pt. Abana Bay Trojan
Pt.
Abana NtueD
Abaanaa Akpa n
Nkanya
Cr. Cr.
u
r
A Es
u
ary
Ine Akpak
hl
tC
Nor Ine Atayo
l
nd t Chn r.
Onosi ou So ronC West Pt.
S A
West Atabong i
as East Atabong
4°30'N a 4°30'N
B
Edem Abasi
Ine Odiong
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.19
8°30'E 8°35'E 8°40'E
Public Health Archibong 4°50'N
Creek
Point A
ier
fe R Archibong
pa Ya
A k Town
Mbenmong
Ikang Point B
Point C
Ine Ikang UrufianIkankan
Point D
Tait
4°45'N ree 4°45'N
Island Obioa C
Campton
Island An
an
. ka Cr
O C
artpa
Cre ek
Ine Akpa Ikang
Dayspring
Pt.
Yambeke
Dayspring Peninsula r
ive Island CAMEROON
R re
King Pt. m be NIGERIA
Ya
Austin Pt. e Atina
af Inee Ekppo Pt.
Y
er
a Inikoi iv
C. C.r R
Akp Island Atio Ri
o
Bakassi Pt. B aksi
4°40'N in 4°40'N
A Ndian Pt. N d
w Perkins
ab r Pt.
n u C
a ut
W
C .r
Vg han C
Ine Utan ia nl A
nt osee Hecuba
Three Way Pt.
Akwabana Cr. Junction
Coc
odi Island D
e e
C l
.
l
Hanley Pt. nne Erong
ha
C Island
a Sna
ban e Cr
Parry Pt. wa
Ak nni Cr.
4°35'N De Myrtle Pt. 4°35'N
Bakassi Peninsuaa R
Receptive poc C . ey
Pt. Abana Bay le
Trojan
Pt.
Abana D
n
Cr. Cr.
u
Ar
Es
u
ay
hl
tC
or
N l
nd t hn r
u o C on C West Pt.
West Atabong So S Ari
siEast Atabong
4°30'N ka 4°30'N
Ba
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.20
8°20'E 8°25'E 8°30'E 8°35'E 8°40'E
Exercise of Ecclesiastical Jurisdiction
Ika
n
.R
r
ie
R Calabar
r
ba
l
Ca
4°55'N 4°55'N
Gr
ea
t
Kw
a
James
Island Ri
ve
r
4°50'N Archibong 4°50'N
Creek
Archibong CAMEROON
Parrot C Town
Oron Island R ver
A OS f Ri
KW S a Ya
A A k Ak kwwa a
R
IV
B E
OM R
kan NIGERIA
gPa
s. Urufiankankan
R.
C Kwa a
o Island K
ss
Green Patch Pt. il Tait
L
4°45'N k 4°45'N
Island oi Cer
Campton Ob
R Island n
v yn
er ka C.r
r
O kr p a C
C reek
Dayspring Ine Akpa Ikang
Pt.
r Yambeke
Richardson Pt. Dayspring Peninsula ve Island
R i re
King Pt. be
Yam
Austin Pt. afe Atina
Y Pt.
r
M bu a v
p Inikoi C. Cr. Ri
Rv Ak Island Atio Ri
r o
Bakassi Pt. Bakas
4°40'N an 4°40'N
Ndian Pt. N di
k Perkins
wa r Pt.
a C
a ut
W
Vi Ca rC
ia ne
nt l yo e Hecuba
Three Way se Pt.
C. Junction
ro Akwabana
cod Island D
ie e
C l
Camp Pt. .
Hanley Pt. nel
W idennam C han
. Tom Shot Pt. C
a Sn
an ke Cr.
ab
Parry Pt. kw ns C.r Myrtle Pt.
A Den
4°35'N 4°35'N
r
C Bakassi Peninsula R
Receptive acp Cr. e
bu oj Bay ocel y
O Pt. Abana Trojan
Pt.
D
n
Abana
Cr. C r
s
ru
A
n.l
Ch
oh
N
d h hl
u ut C C. W
West Atabong So S Aroi
si
ka East Atabong
4°30'N B 4°30'N
BIGHT OF BONNY
8°20'E 8°25'E 8°30'E 8°35'E 8°40'E
For illustrative purposes only.
1:284,000 Figure 3.21
Use of Nigerian Passports 8°35'E 8°40'E 4°50'N
Archibong
Creek
r
Rie
Yafe
kpa
A
n
UrufianIkanka
nee Nk kanne OOkkurre
Tait
4°45'N
Cree 4°45'N
Island Campton Obiob
Island Any
ank
r a Cr.
O k C
a tpa
Creek
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
iv CAMEROON
R ere NIGERIA
King Pt. am b
Y
Austin Pt. e Atina
af Pt.
Y
er
a Inikoi . iv
Island C. Cr R R
Akp Atio i
i o
Bakassi Pt. B aka
4°40'N in 4°40'N
A Ndian Pt. N d
w Perkins
ab r Pt.
n u C
a ut
W
C .r
Vg an C
ia nl A
nt osee Hecuba
Three Way Pt.
Cr. Junction
Co Akwabana
odi Island D
e e
C l
.
l
Hanley Pt. nne Erong
ha
C Island
a Sn
an ae Cr
ab
Parry Pt. kw ni Cr.
A De Myrtle Pt.
4°35'N 4°35'N
Bakassi Peninsuta R
Receptive apo C . ey
Bay cle
Pt. Abana Trojan
Pt.
D
Akpa n
Nkanya Cr. Cr.
s
r
A Ine Mba E
su
ar
y
n.l
Ch
or
N
d h hnl
un u C Cr West Pt.
So So Arin
si
as
4°30'N a 4°30'N
B
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.22
Block ORIIL10
Licensing status1960
For illustrative purposes only Figure3.23
Extentof OPL 230
8"15'
Bightof Bonny
84 5'
For illustrativepurposesonly Figure 3.24
Gazetteer 8°35'E 8°40'E 4°50'N
Archibong
Creek
r
Rive
Yafe
kpa
A
n
UrufianIkanka
Tait
4°45'N
C rek 4°45'N
Island Campton O boba
Island Ay
ank
r a C r
Ok C
at a
Creek
Dayspring
Pt.
Yambeke
Dayspring Peninsula er Island
i
R er
King Pt. am b
Y
Austin Pt. e Atina
af Pt.
Y
e
a Inikoi . i
Island Cr. Cr R R
Akp Atno i
i o
Bakassi Pt. Bakas
4°40'N ian 4°40'N
A Ndian Pt. N d
w Perkins
b r Pt.
an u C
a un
W
C .r
Vg an C
a el A
t yosee Hecuba
Three Way Pt.
Cr. Junction
Co Akwabana
cdi Island D
e e
C l
.
l
HaanleyyPooninttt n ne Erong
ha
C Island
a Sn
an ake Cr.
ab
Parry Pt. kw ni C r
A Den Myrtle Pt.
4°35'N 4°35'N
Bakassi Peninstla R
Receptive acpo C. ey
Bay cle
Pt. Abana Trojan
Sandy Pointntt Pt.
D
Abbaanna en
Cr. Cr.
s
r
A E
stu
ar
y
n.l
C
oh
N
d h hn.
un ut C C. West Pt.
S S Arin
s
as
4°30'N ak 4°30'N
B
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 Figure 3.25
gt
9°E
Area MAMFE
OTU-EKANG of Map
8°50'E
O
NIGERIA
A
C 5°N
CALABAR
IKANG
BAKASSI
Cameroon
BIGHT OF BONNY Mountain
BUEA
VICTORIA DOUALA
4°N (LIMBE)
NIGERIA 9°E
CAMEROON
5°40'N
5°40'N
Enlarged x2 from Anglo German Boundary
Commission 1:100,000 map of 1905–6.
1 1/2 0 1 2 km
Scale: 1:50,000
8°50'E
For illustrative purposes only. Figure 3.26
8°30'E 8°35'E 8°40'E
Administrative Centres of the Clans on Bakassi 4°50'N
Archibong
Creek
Akwa
r
R ie
Yaf Archibong
kpa Town
A
Ikang
UrufianIkankan
Tait
4°45'N ek 4°45'N
Island biba Cre
Campton O
Island A
nyn
ka Cr.
r
O artpa C
a
Creek
Dayspring Ine Akpa Ikang
Pt.
Yambeke
Dayspring Peninsula er Island
i e CAMEROON
R ber NIGERIA
King Pt. Yam
Austin Pt. e Atina
Yaf Pt.
r
e
a Inikoi C .r i
Island . o C R R
Akp Ati io
i
4°40'N Bakassi Pt. Bakas
di n 4°40'N
A Ndian Pt. N
kw Perkins
b r. Pt.
n u C
a ut
W
C .r
g hn C
a nl A
t yosee Hecuba
Three Way Pt.
C. Junction
Co Akwabana
cd Island D
le e
l
Cr.
Hanley Pt. nel Erong
han
C Island
S
na nke r
a a C
Parry Pt. kw is Cr.
A enn
4°35'N D Myrtle Pt. 4°35'N
N R
Bakassi Peninstca C e
Receptive pocle r. y
Pt. Abana Bay Trojan
Pt.
De
Abana n
C. C r
u
A
Es
tu
ar
y
hl
hC
or
N
d h hnl
u u C nCr. West Pt.
So So Aro
West Atabong siEast Atabong
a
4°30'N ak 4°30'N
B
8°30'E 8°35'E 8°40'E 8
For illustrative purposes only.
1:174,000 CONVENTION BETWEEN GREAT BRITAIN AND FRANCE, 14 JUNE 1898
13 14
N N
NIGER
Km
NIGERIA a
u
13 u 13
° Y E
E ob
e
Kukawa
Kukawa Meridian
35' of longitude
14 14
E E
bE
i
CAMEROON
R
ei
hr
ia
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
E E
0 FOR ILLUSTRATIVE PURPOSES ONLYm
produced by the United States Defense Mapping Agency.
(aScale: 1:1,427,000
00' N)
CHAD
13 14
° N
N
Figure 4.1 ANGLO-FRENCH CONVENTION, 8 APRIL 1904
13 14
N N
NIGER
K
m
NIGERIA ad
ug
13 u 13
E Y E
ob
e
KomoadtuhofYobe
Kukawa
Kukawa Meridian
35' of longitude
14 14
° °
E E
E
eb
i
CAMEROON
vi
Cre
ah
i
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
° °
E 0 1FOR ILLUSTRATIVE PURPOSES ONLY E
produced by the United States Defense Mapping Agency.
(aScale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.2 AGREEMENT BETWEEN GERMANY AND GREAT BRITAIN, 19 MARCH 1906
13 14
° °
N N
NIGER
Ko
NIGERIA ma
u
13 u 13
° °
E o E
e
Kukawa
Kukawa Meridian
35' of longitude
14 14
E E
bE
i No endpoint defined
CAMEROON
R
ei
Cr
iah
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
° °
E 0 10 20 30 40 50 km E
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency.
(Scale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.3 CONVENTION BETWEEN THE UNITED KINGDOM AND FRANCE, 29 MAY 1906
13 14
N N
NIGER
K
om
NIGERIA d
g
13 u 13
E Y E
b
e
Bosso
KoMmoadtuofYobe
Kukawa 35 kms.
Kukawa Meridian
35' of longitude
14 14
E E
E
jb
i
CAMEROON
R
ei
Cr
rah
i
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
° °
E 0 10 20 30 40 50 km E
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency.
(Scale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.4 FRANCO-GERMAN CONVENTION, 18 APRIL 1908
13 14
N N
NIGER
K
om
NIGERIA d
g
13 u 13
E Y E
b
e
29AMnaLo1endnicceonbvyention
14 14
° °
E E
E
e
i
CAMEROON
vR
Cr
ah
i
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
° °
E E
0 FOR ILLUSTRATIVE PURPOSES ONLYkm
produced by the United States Defense Mapping Agency.
(aScale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.5 PROTOCOL DATED 19 FEBRUARY 1910 BETWEEN THE UNITED KINGDOM AND FRANCE
13 14
N N
NIGER
K
m
NIGERIA ad
ug
13 u
E Y
ob
e
Bosso
KomoadtuhofYobe
Kukawa
35 kms.
Kukawa Meridian
35' of longitude
14
E
bE
i
CAMEROON
i
re
h
ia
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
E E
0 10 20 30 40 50 km
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency.
(Scale: 1:1,427,000
00' N)
CHAD
13 14
°
N N
Figure 4.6 MILNER/SIMON DECLARATION, 10 JULY 1919
13 14
° °
is*sNeitgoeuritai'ns pCohphosu7th.8otfoth7e.2E5b.ejiM N
NIGER
K
om
NIGERIA d
g
13 u 13
E Y E
b
e
14 14
° °
E E
E
e
i
the"Eoeujtih"*of
CAMEROON
vR
Cr
ah
i
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
° °
E E
0 1FOR ILLUSTRATIVE PURPOSES ONLYm
produced by the United States Defense Mapping Agency.
(aScale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.7 LAKE CHAD TREATY LINES 1898–1919
13 14
is*sNeitgoeuritai'ns pCphosu7th.8otfothNe.2E5b.ejiraM N
NIGER
K
NIGERIA om
du
13 u 13
° Y E
E b
e
Bosso
KomoadtuofYobe
Kukawa 35 kms.
Kukawa Meridian
35' of longitude
14 14
E E
ebE
ij No endpoint defined
the"Eoeujtih"*of
CAMEROON
R
rei
h
ia
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
15 15
E E
0 10 20 30 40 50 km
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency. F/GA/GA/Fra=ncol-g-le-rrannch Legend:
(aScale: 1:1,427,000
191919081 F/06,1190160A9//F4A8/98 A/F
00' N)
CHAD
13 14
° °
N N
Figure 4.8 ANGLO-FRENCH EXCHANGE OF NOTES, 9 JANUARY 1931
13 14
is*sNeitgoeuritai'ns pCohphosu7th.8otfoth7eN2E5b.ejiM N
NIGER
K
om
NIGERIA ad
ug
13 u 13
E Y E
b
e
14 14
° °
E E
E
je
i
the"Eoeujtih"*of
CAMEROON
R
v
Ce
rah
i
15 Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000, 15
° °
E E
0 10 20 30 40 50 km
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency.
(Scale: 1:1,427,000
00' N)
CHAD
13 14
° °
N N
Figure 4.9 Figure 5.1
LAKE CHAD/BORNO (Administrative Centres)
Bosso e
Yo
g Town Coordinates:
d (from Official Standard Names Gazetteer ,
ma United States Board on Geographic Names, May, 1971)
Ko
Maiduguri 11°51'N, 13°09'E
Ngala 12°20'N, 14°11'E
Dikwa 12°02'N, 13°55'E
Baga 12°32'N, 13°51'E
Wulgo 12°29'N, 14°11'E
Gambaru 12°22'N, 14°31'E
Kukawa (previously plotted on base)
Bosso (previously plotted on base)
13°N 13°N
Kukawa Darak
NIGERIA
Wulgo CAMEROON
E Gamboru
ei
Ngala
BORNO STATE
Dikwa
12°N 12°N
MAIDUGURI
0 10 20 30 40 km
Scale: 1:899,000
14°E (Scale accurate at 13°00'N)
For illustrative purposes only. NIGERIA'S CLAIM IN LAKE CHAD
13
*This line is without prejudice to other international N
boundaries in Lake Chad yet to be delimited
NIGERIA
MARTE L.G.A.
Marte
Koloram
14 JribrillKirta Wulgo 14
E E
NGALA
L.G.A.
KamunnarKafMaDllonrm
Wulgo
MurdaGarin Wanzamnna
Ngala Mukdala Njia Buniba Karakayao Labi
Kanumburi
Gamboru Fagge Loko Naira
Gorea Gutin
Chika'a
Dororoya
Darak Kasuram Mareya
Naga'Doron LimanNairaashakkaNimeri
E Gorea Katti Kime Gana
b
j Sokotoram
i
Base map source: Digital Chart of the World (DCW), Input scale 1:1,000,000,
clEastern limit of Nigeria's
FOR ILLUSTRATIVE PURPOSES ONLY
produced by the United States Defense Mapping Agency.
0 5 NigeNriiaga'clGuonvdeareittoaunearisen
CAMEROON (Scale: 1:713,000
00' N)
iR
ev
Cr
a h
ir
13
N
Figure 5.2NIGERIA’S CLAIM IN LAKE CHAD
13°50’ 13°55’ 14°00’ 14°05’ 14°10’ 14°15’ 14°20’ 14°25’
13° 02' 00" N
14° 20' 00" E
13° 02' 00" N
14° 05' 00" E
Logon Labi Nimeri
Kanumburi
13°00’ 13°00’
Karakaya Kasuram Mareya
Eastern limit of Nigeria's
Aisa Kura claim against Cameroon*
Bashakka
12°55’ 12°55’
Loko Naira
Naira
Njia Buniba
Darak Darak Gana
12° 49' 00" N
Doron Mallam Sokotoram 14° 23' 00" E
12°50’ 12°50’
Ramin Dorinna Katti Kime
Dororoya
Kafuram Fagge Garin Changi
Kirta Wulgo Wanzam
Liman
Murdas Chika'a
Mukdala
Naga'a
Sagir
12°45’ 12°45’
Sabon Tumbu Kamunna Gorea Gutun
Jribrillaram
Koloram
12°40’ 12° 40' 00" N 12°40’
14° 11' 00" E
12°35’ 12°35’
12° 34' 20" N
13° 46' 00" E
12° 31' 45" N
14° 13' 00" E
12°30’ 12°30’
Wulgo
MARTE L.G.A.
12° 26' 30" N
14° 05' 00" E
12°25’ 12°25’
Gamboru
FOR ILLUSTRATIVE PURPOSES ONLY
Nigeria's boundary with Cameroon
Marte
Nigerian Local Government boundaries
Scale: 1:322,000
12°20’ (accurate at 13°00' N) 12°20’
0 5 10 15 20 km
Ngala
NGALA L.G.A.
Base map source: 1:50,000 Photo maps produced by the Directorate of
*This line is without prejudice to other international Overseas Surveys for the Lake Chad Basin Commission in 1978
boundaries in Lake Chad yet to be delimited
13°50’ 13°55’ 14°00’ 14°05’ 14°10’ 14°15’ 14°20’ 14°25’
Figure 5.3 Figure 7.1
MOUTH OFTHE EBEJI
1:50,000
Pt. V Pond
NIGERIA
Mouth of NE Channel
Ebeji of Ebeji
CAMEROON
Bifurcation
12°30'N
Map extracted from:
DOS 1:50,000 map sheet ND-33-III-3a 1978
1 1/2 0 1 2 km Nigeria's interpretation of Article 3
++++ Boundary line on Cameroon
(Scale accurate at 12°30'N) RC II Map 2
For illustrative purposes only MOUTH OFTHE EBEJI
NW Channel NIGERIA
of Ebeji
Bifurcation
Pt. V
ARREAA ENLLAARGGEED OONN RRIGHHTT
Mouth of
Ebeji
Pond
NE Channel
of Ebeji 1 0
131-3CLsic108s-23tufym19r3)p
1/2
Scale: 1:40,000
CAMEROON
1/4 0
1/8
Scale: 1:11,000
Mouth of
Ebeji
Pond
For illustrative purposes only
NE Channel
of Ebeji
Figure 7.2 For illustrative purposes only +
+
++ 1:4NARKI
++
+
+
+
+
N ++
CAMEROONa +
s + Banki
o +
a ++
+
Bifurcation
+
+
++
+
+
+ NIGERIA
+
+
+
+
++
+
+
+
Limani Narki
++
+
+
+ Tarmoa
+
+
+
+
+
+
++
++
+
++
++ +
1 042,s3i540tu55 ocai91+p3h)otogr2 km
+
+ ++
+
1/2 +
+ + +
Nigeria's interpretation of Article 14
+
Scale: 1:40,000 ++
++
+
+
+
Agzabame
Marsh
Figure 7.3 +++++++++++ +++
+
O +
U+
DN+
A +
BouniarylseitnCrettiooofRCrtle145 (whereYd+fferent)
+
gN +
CAMEROOsa +
s +Banki
o ++
u +
a ++
Bifurcation
+
++ +
++
++ +
+ +
+ ++ NIGERIA
+ +
+
+ +
++ ++
+ +
+ +
+
++ ++
Lima+i Narki +
+ + Narki
+ +
+ +
+ Tarmoa +
Traced from Aerial Photographs 69/NG/5 042 & 054, 29 Oct 63
+ +
+ +
+ ++
+ +
++ +
++ +
+ +
+ +
Scaled to DOS 1:50,000 map 115 NW (1969)
++ + ++
+ +
+ +++
+
0 1 2 +m
+ ++
++
+
+ +
For illustrative purposes only +
+
+
+
+
Agzabame
Maash
Figure 7.4 Figure 7.5
14°00'E
KIRAWA RIVER
1:50,000
Nigeria's interpretation of Article 18
Boundary line on Cameroon
RC II Map 6 (where different)
NIGERIA
Kirawa River
western channel
Kirawa River
eastern channel
River depicted
by broken line
11°15'N 11°15'N
CAMEROON
Map extracted from:
DOS 1:50,000 map sheets 114NE, 114SE, 1969
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 11°30'N)
For illustrative purposes only KIRAWA RIVER
Ngabrawa Kura NIGERIA
ARREA ENLLARRGEED ONN RIIGHTT
w
a K
ur
a
Bakolchic
hi
Ndabakora
a
CAMEROON
Gange
69NGsa657ntucd,ro0mral rpographs
Cousorfoftseraeanhalnnel
viNo defined
er course
Blakootchi
hi
For illustrative purposes only
Ndaabakora
a
Figure 7.6 Figure 7.7
KIRAWA
1:300,000
Map extracted from:
Moisel map B3,1913
5 4 3 2 1 0 5 10 km
Scale: 1:300,000
(Scale accurate at 11°00'N)
NIGERIA
Schriwe
Ndeba
Kirawa River
CAMEROON
For illustrative purposes onlyFor illustrative purposes only
11 THE KOHOM RIVER
00'N
Cameroon Road
1:50,000
Heights in metres
Heights in feet
NIGERIA
Mt. Ngossi
B o g a za
MM154 Matakam
Kohom River
Source of
13
° 13
45'E 45'E
CAMEROON
Kohom
(soathOSf1:5Gus00:s0,etscohset Ntnd31-fIS-4ecract:
1 0 1 2 km
1/2 RCBIIMNaaeyrli'nrerpifeteotonof Articles 19 & 20
N)
(Scale accurate at 11
Scale: 1:50,000 Kohom and Kirawa
Confluence of
GPSUledda
00'N)
Ki r a w a
11
00'N
Figure 7.8 Figure 7.9
THE KOHOM RIVER
March 1926
1:167,000
75% reduction from the original document For illustrative purposes only Figure 7.10
MOUNT KULI Start of
incorrect
TO BOURHA watershed
(North Extract)
1:50,000
Nigeria's interpretation of Article 25
Boundary line on Cameroon
RC II Map 7 (where different)
Map extracted from:
DOS 1:50,000 map sheet 156 NE, 1969
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 10°30'N)
NIGERIA
10°25'N
Hill NNW of Moudi
Moisel's line of
incorrect watershed CAMEROON
13°33'E
For illustrative purposes only MOUNT KULI Hill NNW of Moudi
TO BOURHA
(South Extract)
1:50,000
Nigeria's interpretation of Article 25
Boundary line on Cameroon
RC II Maps 7 and 8 (where different)
Map extracted from:
DOS 1:50,000 map sheet 156 NE, 1969
Cameroon 1:50,000 map sheet NC-33-XIV-2c, 1965
1 1/2 0 1 2 km
Scale: 1:50,000 Line of
(Scale accurate at 10°30'N) main
watershed
NIGERIA
Heights in feet
Heights in metres
CAMEROON
Moisel's line of
incorrect watershed
Diwu
10°20'N
Moisel's depiction of the
course of the M. Gela
(the cause of the watershed error)
Hill A
Limit of Diwu
catchment
(end of incorrect
watershed)
13°30'E
10°15'N
For illustrative purposes only
Figure 7.11 Figure 7.12
13°30'E
BURHA 10°30'N
1:300,000
Hu˘seki
Mt.Kuli
Waldocho
Mukta
Muti
Schua˘
Gili Wuda
Wamengo-Burha
M. Gela
Mahau
Dihi
NIGERIA
CAMEROON
Mulikia˘
10°00'N
Map extracted from:
Moisel map C3, 1913
5 4 3 2 1 0 5 10 km
Scale: 1:300,000
(Scale accurate at 10°00'N)
13°30'E
For illustrative purposes only Figure 7.13
13°20'E
KOJA (KOTCHA)
1:50,000
GPS 15 Mt. Mulikia
GPS 16
10°05'N
GPS 17
cairn
CAMEROON Nigeria's interpretation of Article 27
Boundary line on Cameroon
RC II Map 8 (where different)
Map extracted from:
DOS 1:50,000 map sheet 156 SE, 1969
1 1/2 0 1 2 km
Scale: 1:50,000
13°20'E (Scale accurate at 10°30'N)
For illustrative purposes only Figure 7.14
SOURCE OF THE TSIKAKIRI RIVER
1:50,000
13°15'E
GPS 15
GPS 16
10°05'N GPS 17 10°05'N
cairn
NIGERIA
CAMEROON
Source of Tsikakiri River
Nigeria's interpretation of Article 27
Tsikakiri River
Boundary line on Cameroon
RC II Map 8 (where different)
Map extracted from:
DOS 1:50,000 map sheet 156 SE, 1969
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 10°30'N)
For illustrative purposes only 12°25'E 12°30'E
JIMBARE
South Peak
1:50,000
of Alantika
Mountains
Leinde
Confluence
Lugga
Kobodji [Kojoli] Mapeo track
CAMEROON
8°35'N Sassiri 8°35'N
NIGERIA
Site of
Nanaoua
GPS 18
Nyemsenga
Silba
Wuro Lawal Jetwunga
now called Nyagan GPS 19
Kombunga
GPS 20
GPS 21
Wusima
Kadam
Source of Sampee R.
Nigeria's interpretation of Articles 36 & 37
8°30'N 8°30'N
Boundary line on Cameroon RC II Map 12
(where different)
Map extracted from:
Source of Labidje R. DOS 1:50,000 map sheets 217 SE and 238 NE, 1967
1 1/2 0 1 2 km
Scale: 1:50,000 Figure 7.15
(Scale accurate at 8°30'N)
12°25'E
Continuation in Figure 7.16 For illustrative purposes only DOM S1:50,tactedfrohe:et 238 NE, 1967
1 0 1 2 km 8 1:50,000EO
30'N
1/2
(wBeoeddfrel'n)ierprataeoonofCrtIlesp12& 38
(Scale accurate at 8
Scale: 1:50,000
°
30'N)
NIGERIA
12
°
20'E
10 kms to theelyo lies
northwest
Namberu
cairnS 24
Sampee
Labidje
GPS 23
cairn
CAMEROON Kadam
cairnS 22
Bomdingba
12
25'E
Wumkola
For illustrative purposes only
Deo
8 8
25'N 30'N
Figure 7.16For illustrative purposes only
Main Summit 8 BANGLANG
25'N NAMBERU-
NIGERIA 1:50,000
Saddle
BAANNGGL LANNG G
MOUOUUNNS
12 °2
15'E T 15'E
AINS
DOS1:0tacedfhe:ets 238 NE and 238 NW, 1967
1 0 1 2 km
CAMEROON
1/2
RCIMNaylseerpfaoot)nof Article 38
(Scale accurate at 8
Scale: 1:50,000
30'N)
Namberu [Nangau]
12 12
20'E 20'E
25'N
Figure 7.17 Figure 7.18
MT. KOMBON
1:50,000
Nigeria's interpretation of Articles 60 & 61 of the
Thomson-Marchand Declaration and the 1946 Order in Council
Maps used in the construction of this extract:
DOS 1:50,000 map sheet 295 SW, 1965
IGN 1:50,000 map sheet NB-32-XVIII-3a, 1955
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 6°30'N)
NIGERIA
Heights in feet
Sanya
Tonn Hill
Mt. Kombon
(local name
Itang)
Hill1660
Heights in metres
CAMEROON
IGN 1955 map data
The place name of Tamnyar
has been positioned on the
Cameroon side of the border but
it refers to the settlement
on the Nigerian side.
For illustrative purposes onlyFor illustrative purposes only
02-rc-18,o200us0an(1opo)graphic map
Anglo-French
Boundary + + ++ +++ ++ + +
+ + ++ + ++ ++ + + + +
Old +
+
To Bamenda ++
+
+ ++
+
+
+
+
Nyorong +
+ MAMBILA PLATEAU
+ ++
Mi + NIGERIA
++
+
+ (Hill at 17
+ + The Position of Mount Kombon
+ Mt. Kombon
+
aD ++
H. NANGBANrn M ++Tamnyar Magnetic)
a +
m + +
K ++ To Donga River
mo +
ib ++
+
+
+
+
+
++
CAMEROON +
+ +
+
Songkorong +
+
+
M +
b + ++
e + + ++
+ +
+ ++++
+
+
+
+ Thoior-'srhraeailariotis 8eto
+
++
+ +
+ + +
++ + ++ + ++ ++
++ + +
++
K
0 2 4 6 8 km i ++
Ribao +
To Banyo +
+
+
+
+
+
+
++
+
++ +
+ + +
Figure 7.19For illustrative purposes only
CAMEROON
Manton Mburi (Manton)
HeighHeights in feet
Maven
CCN 1976 map data
Mogog
Site of old cairn
GPS 28
NIGERIA
To Kumbo
TONN HILL to MBURI RIVER
CCDNO1:a:s0usm0anapeecents95tSVnI-96,s1e9ract:
1 0 1 2 km
1/2 OldNAingge'srntehretuantidoanryof 1946 Order in Council
(Scale accurate at 6
1:50,000
Scale: 1:50,000
30'N)
Source of the Mfi River Tonn Hill
Sanya
Figure 7.20 To BanyoFor illustrative purposes only
6
55'N
73 DOS Ma:pe,x0tredafsme:et 293
1 0 1 2 km
1/2 (wBeoeddfrel'n)ierprataeoonofC9I4I6arder in Council
NIGERSAMA RIVER
(Scale accurate at 7 71
Scale: 1:50,000 1:50,000
NW, 1966
00'N)
BP70
CAMEROON
Southern Tributary
Northern Tributary
10
10'E
NIGERIA
6
55'N
Figure 7.21 Figure 7.22
BP 64
1:50,000
Nigeria's interpretation of 1946 Order in Council
and Article 13 of the 1913 Demarcation
Map extracted from:
DOS 1:50,000 map sheet 274 SW, 1966
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 7°00'N)
NIGERIA
BP 64
BP 65
BP 66
BP 67
BP 68
CAMEROON
7°00'N
BP 69
(destroyed)
For illustrative purposes only Figure 7.23
THE WATERSHED FROM
NGOSSI TO ROUMSIKI
(NGOSSI toVISIK)
1:50,000
Devurua
Zimunkara
10°55'N 10°55'N
Area of Cameroon
Building Development
NIGERIA
CAMEROON
Nigeria's interpretation of Articles 20 and 21
Boundary line on Cameroon RC II Map 6
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 NW, 1969
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 11°00'N) 13°45'E
For illustrative purposes only Figure 7.24
13°40'E
THE WATERSHED FROM
NGOSSI TO ROUMSIKI
(VISIK to WULA HANKO)
1:50,000
10°50'N
NIGERIA
CAMEROON
Nigeria's interpretation of Article 22
Boundary line on Cameroon RC II Map 7
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 NW, 1969
10°45'N 1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 11°00'N)
For illustrative purposes only Figure 7.25
10°45'N
13°37'E
THE WATERSHED FROM
NGOSSI TO ROUMSIKI
(WULA HANKO to JEL)
1:50,000
NIGERIA
CAMEROON
10°40'N 10°40'N
Jel Mountain
Nigeria's interpretation of Article 23
Boundary line on Cameroon RC II Map 7
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 SW, 1969
1 1/2 0 1 2 km
(Scale accurate at 10°30'N)
For illustrative purposes only Figure 7.26
10°40'N
THE WATERSHED FROM
NGOSSI TO ROUMSIKI
Jel Mountain
(JEL to MOGODE)
1:50,000
Nigeria's interpretation of Article 23
Boundary line on Cameroon RC II Map 7
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 SW, 1969
1 1/2 0 1 2 km
(Scale accurate at 10°30'N)
CAMEROON
NIGERIA
13°32'E 13°36'E
10°35'N
For illustrative purposes only Figure 7.27
THE WATERSHED
FROM NGOSSI
TO ROUMSIKI
(MOGODE to
ROUMSIKI)
1:50,000
10°35'N 10°35'N
CAMEROON
NIGERIA
Nigeria's interpretation of Article 23
Boundary line on Cameroon RC II Map 7
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 SW, 1969
1 1/2 0 1 2 km
(Scale accurate at 10°30'N)
13°32'E
10°30'N
For illustrative purposes only Figure 7.28
TURU
1:50,000
10°55'N 10°55'N
Area of Cameroon
Building Development
CAMEROON
13°44'E
Nigeria's interpretation of Article 20
Boundary line on Cameroon RC II Map 6
(where different)
Map extracted from:
DOS 1:50,000 map sheet 136 NW, 1969
1 1/2 0 1 2 km
(Scale accurate at 11°00'N)
For illustrative purposes only 13°30'E
MADUGUVA
1:50,000
Southern end of
incorrect watershed
10°15'N 10°15'N
GPS 11
(abandoned)
Mitchya GPS 12
Hill
Guri (new)
CAMEROON
Kadam
GPS 13
NIGERIA Bidwa
Bana Hill IGN 1965
Hill
map data
Nigeria's interpretation of Article 25
Boundary line on Cameroon RC II Map 8
(where different)
Heights in feet
Heights in metres Map extracted from:
DOS 1:50,000 map sheet 156 NE,156SE, 1969
Cameroon IGN 1:50,000 map sheet NC-33-XIV-2a
Gandira 1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 10°00'N)
13°30'E
For illustrative purposes only
Figure 7.29 Figure 7.30
12°52'E
BP6 to WAMNI
(North Extract)
1:50,000
9°05'N 9°05'N
Approximate position
of BP 6 (destroyed)
NIGERIA
o
3 km
CAMEROON
Nigeria's interpretation of Articles 32 & 33
BP7
Boundary line on Cameroon RC II Map 10
(where different)
Map extracted from:
DOS 1:50,000 map sheet 197 SE, 1968
1 1/2 0 1 2 km
Scale: 1:50,000
12°52'E (Scale accurate at 9°00'N)
9°00'N
For illustrative purposes only Figure 7.31
12°50'E
BP6 to WAMNI
(South Extract)
1:50,000
BP7
9°00'N 9°00'N
CAMEROON
KARRIIN
Cameroon's
ui
position of BP 8
HIILLS Approximate position
NIGERIA of BP 8 (not found)
Nigeria's interpretation of Articles 33 & 34
Boundary line on Cameroon RC II Map
10 & 11 (where different)
Map extracted from:
DOS 1:50,000 map sheet 197 SE, 1968 and
DOS 1:50,000 map sheet 218 NE, 1967
1 1/2 0 1 2 km
Waammnii
Scale: 1:50,000
12°50'E (Scale accurate at 12°30'N)
For illustrative purposes only Figure 7.32
BP 6 to WAMNI
(Moisel Extract)
1:72,000
Map extracted and enlarged from:
Moisel map sheet D3,1913
1 1/2 0 1 2 km
Scale: 1:72,000
(Scale accurate at 9°00'N)
NIGERIA
Ndula
9°00'N 9°00'N
Tonbi
CAMEROON
For illustrative purposes only Figure 7.33
12°35'E
MAIO SENCHE
1:50,000
Maio Senche
Point where Cameroon's boundary
joins the Maio Senche
NIGERIA
oe
8°35'N 8°35'N
CAMEROON
Nigeria's interpretation of Article 35
Boundary line on Cameroon RC II Map 12
(where different)
Map extracted from:
DOS 1:50,000 map sheet 218 SW, 1967
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 8°30'N)
For illustrative purposes only To Toungo
For illustrative purposes only
8
DOM Sa1p:5er0c0tdarosh: ets 238 SW and 258 NW, 1965-67 00'N
1 0 1 2 km
1:50,000PSAN
1/2
Line(ofBtreNkdfayl'n)"oarpratrntJon.RC"rtIleap113 &214
(Scale accurate at 8
Scale: 1:50,000
00'N)
Bospan
12
°
10'E
NIGERIA
GPS 27Immigration
Tipsan
Post
2 kms.
CAMEROON 2 kms.
Track crossing
00'N
Figure 7.34For illustrative purposes only
Mo MisaelexatpashtedetsnDd3eanladrgEe3d x2 from:
1:150TIPSAN
2 0 2 4 km
1
(Scale accurate at 8
Scale: 1:150,000
00'N)
theheerc(rbJa.rottfr:Btol'srMdpssolf"ceripim
NIGERIA
T i p s a n
CAMEROON
Figure 7.35 Figure 7.36
BARÉ-FORT LAMY
N'Djamena
(Fort Lamy)
NIGERIA
Toungo
Kontcha
CAMEROON
Baré
For illustrative purposes only CCN 1976 map data
CAMEROON
Manton Mburi (Manton)
Heights in metres
Heights in feet Maven
Mogog
Site of old cairn
GPS 28
To Kumbo
of the 1946 Order in Council
Cameroon's interpretation
NIGERIA
MBURI RIVER to OLD FRANCO BRITISH FRONTIER
Mfi Catchment Saddle
Tonn Hill
ofCameroon's interpretation
Sanya
Delimitations Declaration
Junction of
1:50,000
Itang Hill
CCIGND:1:,1,000s0daintptNtNet--2-iI-Ic,t,is6xtract:
1 0 1 2 km
IGN 1955 map data Old(wnBgletrfreeli)'oietrnreratnniCfIIrtaes180 & 61 and
1/2
(Scale accurate at 6
Scale: 1:50,000
Heights in metres
30'N)
For illustrative purposes only
To Banyo
Figure 7.37 Figure 7.38
BISSAULA-TOSSO
1:50,000
Kentu-Bamenda Road
NIGERIA
Sources of northern
tributary
6°55'N
Akong stream
(flows into Akbang River
GPS 29
cairn
Source of
CAMEROON southern
tributary
Nigeria's interpretation of 1946 Order in Council
Boundary line on Cameroon RC II Map 20
(where different)
Kentu-Bamenda Road
Map extracted from:
DOS 1:50,000 map sheet 293 NE, 1966
1 1/2 0 1 2 km
Scale: 1:50,000
(Scale accurate at 7°00'N) 10°30'E
For illustrative purposes only Figure 7.39
MBEROGO
1:50,000
Nigeria's interpretation of 1946 Order in Council
Boundary line on Cameroon RC II Map 21
(where different)
Map extracted from:
DOS 1:50,000 map sheet 293NW, 1966
1 1/2 0 1 2 km
CAMEROON Scale: 1:50,000
(Scale accurate at 7°00'N)
NIGERIA
Tosso North
Tosso South
Akwi
Furu-Awa
Mberogo
6°55'N 6°55'N
Cameroon's alleged
location of Mberogo
Cameroon's alleged
location ofTosso
CAMEROON
10°10'E
For illustrative purposes only Fig.
B 21
I. WGNE .EQlJl"lWm
I
i-
For illustrative purposesonly. CameroonClaim Line (fromtext)
4 Pointsfrom original Map R21
Pointsfrom text Cameroon's MapR21
Fig-24-1140 Fig.9.2
--y.
For illustrativepurposesonly
.- - CameroonClaim Line(fromtext) Camer00n's M AREAS OF DEFECTIVE DELIMITATION
4 5 00'N 00'N 00'N 00'N 10 11 12 13 14
00'N 00'N 00'N 00'N 00'N 00'N 00'N
3 3
00'E 00'E
LAGOSOGUN OYO
° °
00'E 00'E
OSUN
KEBBI
KWARA
5 5
00'E ONDO 00'E
SOKOTO
NIGER
DELTA
° RIVERS °
00'E EDO 00'E
7 KOGI 7
00'E IMO ANAMBRA ABUJA CAPITAL 00'E
TERRITORY
KATSINA
ENUGU
AKWA ABIA KADUNA
IBOM
° °
00'E 00'E
KANO
BENUE PLATEAUNIGERIA
RIVEROSS
9 9
00'E 00'E
JIGAWA
BP 64
10 10
° °
00'E 11 BAUCHI 00'E 11
Sama RiveTARABA
Lip
00'E 12 00'E 12
The Incorrect Watershed
YOBE
Mount Kombon Jimbare
ADAMAWA
° CAMEROON °
00'E 13 00'E 13
Kirawa River
Namberu/Banglang
Koja BORNO
Mouth of the Ebeji
00'E 14 Sapeo 00'E 14
Source of the Tsikakiri
The Kohom Riverrki
00'E 15 00'E 15
00'E 00'E
4 5 6 7 8 9 10 11 12 13 14
00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N CAMEROON’S INCORRECT APPLICATION OFTHE DELIMITATIONS
4 5 00'N 00'N 00'N 00'N 10 11 12 13 14
00'N 00'N 00'N 00'N 00'N 00'N 00'N
3 3
00'E 00'E
LAGOSOGUN OYO
° °
00'E 00'E
OSUN
KEBBI
KWARA
5 5
00'E ONDO 00'E
SOKOTO
NIGER
DELTA
° RIVERS °
00'E EDO 00'E
7 KOGI 7
00'E IMO ANAMBRA ABUJA CAPITAL 00'E
TERRITORY
KATSINA
ENUGU
AKWA ABIA KADUNA
IBOM
° °
00'E 00'E
KANO
BENUE PLATEAUNIGERIA
RIVEROSS
9 9
00'E 00'E
JIGAWA
10 10
° Bissaula-Tosso °
00'E 11 BAUCHI 00'E 11
Mberogo TARABA
00'E 12 00'E 12
Lip YOBE
Ngossi to Roumsiki
ADAMAWA
° CAMEROON °
00'E 13 00'E 13
Maduguva
Tipsan
BORNO
Maio Senche
00'E 14 00'E 14
BP 6 to Wamni
00'E 15 00'E 15
00'E 00'E
4 5 6 7 8 9 10 11 12 13 14
00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N 00'N Licence History : Legend
Nigeria-Cameroon- Nigeria Licences
Equatorial Guinea Cameroon Licences
Equatorial Guinea Licences
Licence History
Compiled using data from IHS Energy, AAPG and DPR • Licences are shown as at year end.
• Present day licences are shown as background.
• completeness of the licence data. ensure the accuracy and
Licence History : 1960 Licence History : 1961
Licence History : 1962 Licence History : 1963Licence History : Licence History :
1964 1965
Licence History : 1966 Licence History : 1967
Licence History : 1968 Licence History : 1969Licence History : Licence History :
1970 1971
Licence History : 1972 Licence History : 1973
Licence History : 1974 Licence History : 1975Licence History : Licence History :
1976 1977
Licence History : 1978 Licence History : 1979
Licence History : 1980 Licence History : 1981Licence History : Licence History :
1982 1983
Licence History : 1984 Licence History : 1985
Licence History : 1986 Licence History : 1987Licence History : Licence History :
1988 1989
Licence History : 1990 Licence History : 1991
Licence History : 1992 Licence History : 1993Licence History : Licence History :
1994 1995
Licence History : 1996 Licence History : 1997
Licence History : 1998 Licence History : 1999
Rejoinder of the Federal Republic of Nigeria