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CR 200217(traduction)

CR 200217(translation)

Mardi 26 février200à 10heures

Tuesday26 February2002 at10a.m. The PRESIDENT:Please be seated. TheSittingis open and 1shall now give the floor to

Dean MauriceKamto, speakingonbehalf of theRepublicofCameroon.

Mr.KAMTO:

II.THE MARITIMEBOUNDARY

10.Thesecondmaritimesector(beyond pointG)

(d) Confirmationof theequitablenessof thedelimitafionputforward by Cameroon

Conclusionconcerningthe maritimeportion

1.Mr.President,Members of the Court, 1said yesterdaythat this morning 1 would address

two points of Nigeria's case, concerning Cameroon's incorrect use of proportionality andits

disregard ofthe oil practice beyondpoint. It seemed to me that, first,the other Pam discusses

proportionality in connection with confirming the equitableness of the proposed delimitation,

which cannot be done until the line of delimitation hasbeen constructed. Second,as far it is

concerned,the oil concession practice mustbe discussed in relation to the line producedby the

Treaty of 23 September2000, advocated by Nigeria, which results in the total exclusion of

Cameroon'srights southof point G.

2. 1would first liketo establish that this oil concepractice is disputed andto rebut the

legal conclusions thatNigeria woulddraw fiom it. 1shallthen show that expost considerationof

the line putfonvard by Cameroon confirms thatit is indeed the most equitable one possible, a

qualitycertainlylackingin the line advocatedbyNigeria,tothe extentthat we knowwhat that line

is.

1. Theoilconcessionpracticeandthe maritimeboundaryclaimedbyNigeria

(a) Disregardofthepracticeingrantingoilconcessions a

3. Mr.President,Nigeria opposesthe oilconcession practice to the delimitation proposed by

Oi9 Cameroon. Accordingto the otherParty, "[tlhe oil practiceis long established and substantial"',

'~ejoinderof Nigeri513. and "[tlhe Court has never asserted or exercised the power to transfer existing installations to

anotherstaten2

4. In this respectNigeriareliesprimarily ontheCourt'sJudgmentof 24February 1982inthe

Tunisia/Libyacase, from which it quoteslong excerptsin its ~ounter-~emorial~and to which it

returnsin its~ejoinder~,in order to counter Cameroon's arguments on this subject. It claims that

"it was precisely bytheir practice in granting oil concessions thatTunisia and Libya adopted the

pre-independence defacto line".

5. In reality, in that case the Court consideredthe de facto line inheritedby Tunisia and

Libyafrom the administeringPowers to be an "indici~m"~which it usedonly, and 1 quote the

Court, "in defining the angulation of the initial line fiom the outer limit of territorial waters",

without accepting "as equitable its effects fùrther out to sean6. Moreover, in its Judgment of

10December 1985, Application for Revision and Interpretation of the Judgment of

24February1982,the Courtconfirmed the limited significance of the fact that this defacto line

was taken intoaccountby consideringitto be "the startingpoint"for the delimitation7

6. Furthemore, Nigeria endeavours in vain to counterthe support Cameroon draws fiom

variousjudgments and arbitral awards concerningthe weight to be given to oil concessions in

maritime delimitation. Thus,it accuses Cameroonofhaving citedthe Judgmentof the Chamberof

the Court in the Gulf of Maine case out of context8andclaims that the case was really about

fisheries9.However,it quotesthe passage from the Judgment cited by Cameroon, stating:

"the respectivescaleof activitiesconnectedwithfishing - or navigation, defence or,
for that matter,petroleum explorationand exploitation- cannot betaken into account

as a relevant circumstanceor, if the term is preferred,as an equitable criterion tobe
020 appliedindetermining the delimitation linenIo.

'~bid p.,15.
3~ounter-~emorial of Nigeria,Vol. II,pp. 582-583,paras.21.25-21.26.

4~p.515-516, paras. 13-23.
'1C.J.Reports1982,p. 84,para. 118.

61bid p.,7,para. 125.

'1C.J. Reports1985p.213,para. 38.
'~ejoinder ofNigeria, p. 516,para. 13.25.

9~bid p.,17.
''1C.J .eports1984,p. 342,para.7.3 7. Mr. President, there is noneed to interpret orexplainsomething whichis clear. Notonly

is theabove-quotedpassage not taken out of context,but it speaks foritself. The Court expressly

referred to "petroleum explorationand exploitation"and then, every bitas explicitly,ruled it out as

a relevant circumstance, whether or not that isto Nigeria's liking,andCameroondoesnot seewhy

Nigeria wouldhavethat Judgment Saysomething thatit does not. When Nigeria asserts thatthe

arguments pertainingto oilpractice "were treatedas relevantin principle""- aphrase of which it

is particularly fond- it is attempting to rewrite the Court's Judgment- and it oes a lot of

"rewriting"! And that is unacceptable.

8.As fortheAward rendered inthe Yernen/Erict asee,Nigeriaquotesal1of paragraph 132

and lays emphasis, in the commentary followingthe quotation, on the fact that the Tribunal

expresslytook account of the oil practice as a relevant factor in deterrniningthe course of the

medianline. However,it is clearfiom a carefulreading ofthe Awardthat the Tribunal saysthat it

examinedthe oil practice in the sovereigntyphase of the case12and found that the offshore oil

contracts concludedboth by Yemenand by Eritrea and Ethiopia "lend a measure of support"to a

medianlinebetweenthe oppositecoasts of Yemen and Eritrea,drawnwithoutregardto the islands

and determiningthe areas underthe respectivejurisdictionof the twoparties. .TheTribunal didnot

base itsjudgrnent in that caseon the oiI practice; the practice servedsolely to support the course

chosenby the Tribunalin the lightof the geographical situation ofthe coasts of the parties to the

dispute. Furthermore,the medianline determined was merely an approximationt,he first step in a

two-stepprocess of delimitation,the secondbeing the adjustment orcorrection of the equidistance

line (in that case,it was a matter of a median line between themaritime areas of two opposite

States). Indeed, the Tribunal then proceeded in accordancewith the settled case law practice,

requiring that special or relevant geographical circumstances,notably islands, be taken into

account. The Tribunal immediately addedinthat sameparagraph 132of its Award:

"In the present stagethe Tribunalhas to determine a boundary not merely for

the purposes of petroleum concessionsand agreements, but asingle boundq for al1

"~ejoinder of~i~eria,Vol.II517,para. 13.25.
I2~wardof 19December 1999,para. 438. purposes. For such a boundary, the presenceof islands requires careful consideration

oftheir possible effect uponthe boundaryline."I3

9. Once again, Mr. President, it appears perfectly clear tous: in drawing the maritime

boundary between YemenandEritrea,the Tribunal didnot in any wayrely onthe oil concessions.

10.As in thecase of the first sectorofthe maritime boundary,up to point G, Nigeria repeats

ad nauseam, "Cameroon has never made the slightest~laim"'~in respect of licences issuedby

Nigeria. Thus, the other Partywould seek totake advantageof the oilfield confusionwhich it has

contributed to creatingto the south of pointG. It seeks to infer from Cameroon's silence

acquiescence toNigeria's presenceon Cameroon's continental shela fnd thereforeto lendcredence

to thenotion that Cameroonhasrenounced its legitimaterights inthe area.

1 1.1wish to point out, Mr. President, thatl1of the Nigerianoil concessionsin thisarea are

of recentdate, eventhoughNigeria implies the opposite in speaking of "long established" practice.

Nigeria would have great difficulty in showing youany pre-1990 concessions in that area. The

three major blocks OPL224, OML 102 and OPL223 covering the area through which the

equitable line passes were defined on 21September1990, 1July 1991 and 23 April 1993,

respectively, evenif Nigeria contends that they were definedbefore then15. In any case, it

absolutely cannot be presumedthat Cameroon, evenby remaining silent, waived its rights as a

result of its refusal to contributeto the oilfield confusion in theGulf of Guinea. Nor can it be

criticizedfor havingplaced its faith injudicial settlement y choosingto refrain from al1operations

which could eitherplace the Court before a fait accomplior impede the implementation of the

judgment to be handed down on the merits in the case, especially since Nigeria acted by stealth

and, forthe most part,afterthecase had alreadybeenreferred to you,Membersof the Court,or, at

the veryleast, at a time whenitwas inthe midst of negotiations with Cameroon.

12. Cameroon could never have imagined it possible that, while it was engaged in

discussions with Nigeriaon questions concerning the delimitationof the boundary, including the

maritime boundary, between thetwo countries, Nigeriawas granting oil concessions in the main

area to be delimited. 1shall pointout that, even beforethe Court was seised, bilateral discussions

"lbid.
I4~ejoinderofNigerip.519,para. 13.28.

"~ejoinder ofNigeria, table,p. 512. on boundary questionshad intensifiedin the early 1990s,notably withthe meetings in Abuja in

December199 1andYaoundéin August 1993.

13.What is more, Nigeria breached its undertakingto inform Cameroon ofits oil operations

beyond point G. That undertakingis clearlyseenwhen thetwo meetings 1 havejust mentionedare

examinedin conjunction. The minutesof the "JointMeetingof Nigerianand Carneroonian Experts

on Boundary Problems" adoptedat the Abuja session heldfiom 15to 19December 1991 include

the following passage: "Both sides agreedto continueto exploit theirtrans-border resowces, but

takingcareto informthe othersideof anyaction thatrnaylikely causen~isance."'~

14.This is a general position, applicableto al1cross-border resources,bar none, whether in

areas landward or seaward of pointG. To determine the precise geographical scope of this

undertaking,the passage from the minutes ofthe 1991meeting must be read in conjunction with

anotherpassage, found in boththe minutes" andthejoint communiqué'8 of the Nigeria-Cameroon

Joint Meeting heldinAugust 1993in Yaoundé:

"Conceming exploitationof hydro-carbonresources south of Point G, the two
delegations confirmed the spirit and tletter of the provisionsof the minutes signed
in Abuja between the two delegations on 19 December 1991, in particular, the
fieedomof eachcountrytodevelop itsresowcesalong theborder."19

15.1wish to drawthe Court's attentionto the factthat, while theAbuja meetingin 1991was

a meetingof experts,the two countries'delegations to thejoint meeting inYaoundéin 1993were

higher in Ievel because they were led on the Nigerianside by the Secretary of Foreign Affairs,
O2 3
Chairmanof the TechnicalCommitteeof the InternationalBoundq Commission, accompaniedby

Nigeria's Ambassadorto Cameroon, andon the Cameroonianside by the Vice-Prime Ministerin

charge of Town Planning and Housing, assistedby the Minister Delegate tothe Ministry of

ExternalRelations.

16.1 shall not embark on a lengthy discussion ofthe legal natureof the minutes and joint

communiqués fiom which 1have just quoted excerpts,in which language such as "the Parties

agreed ..." is to be found. The Courtwill be able to assess thatin the light of its Judgrnentof

I6~nn.MC 313. [English text in prelirninary objections ofNigeria, Ann. NP0 54.1
I7lbid.

I8lbid.

191bid. 1July1994 in the Qatarv. Bahrain casez0, referred to yesterday moming by

Professor ~omuschat".

17.Mr. President,if 1lay stresson the undertaking toinformwhich was givenin Abuja and

confirmed in Yaoundé, itis because that is a vital element explaining Cameroon's silence

concemingNigeria'soil operations southof pointG; Cameroon honoured it inletterand in spirit,

unlike Nigeria. Indeed,when Cameroon decidedto begin work on the Betika West well, situated

on the maritime boundarywith Nigeria, slightlyabove pointG, the CameroonianHead of State,

President Paul Biya, sent a special envoyto his Nigerian counterpart,General Ibrahim Badamissi

Babangida,in May 1993to informNigeria of that decision. But Nigeria did not react to that

information. The Cameroonian delegation drewthe Nigeriandelegation'sattentionto thismatterat

the Yaoundé meetingz2N . ot once did Nigeria takeany similar actionto inform Cameroonof its

substantial oil operationsbeyondpointG.

18. Nigeria's breachof its obligationto inform Camerooncreates a peculiar situation.

Assuming that Cameroonwas underan obligationto protest- which in itself is doubtful,if only

because one cannot be required to exercise round-the-clock surveillance, particularly since the

present case hasbeen before the Court - but, once again, even assumingthat there was such an

obligationin the abstract, itmust be interpretedtaking into account thecontext which 1havejust

described: Nigeria had undertaken to inform Camerooan nd it did notcomplywith that obligation.

In these circumstances, silence can no longer be tantamountto acquiescence. As JudgeAgo

pointed out in his separate opinion appended to the Judgrnent in the Continental Shelf

(Tunisia/LibyanArab Jamahiriya) case, acquiescence is "consentevinced by inactionmz3.It

manifests itself, asMacGibbon so well expresses it,by "silence or absence of protest in

circumstances which generally cal1forthe positive reactionsignifiing an objectionnz4.But silence

can have this legal consequenceonly in the usual situation where theparty entitled to protest

should have kept itself informed otfheposition. That is not the case here: Cameroonand Nigeria

''1.C.J.Repor1994,p. 112and pp. 1-122,paras.26and 27.
"CR 200216,p.25.

22~bid.
2SeeI.C.J. Repor1982,p. 97,para.4.

24~n"The Scopeof AcquiescenceinInternationalLaw",BYBIL, XXXI,1954,p. 143. had undertaken, on the basis of reciprocity, to keep each other mutually informed of their

cross-border oil operations.Nigeria did not honourthis undertakingto Cameroon. Thisbreachby

the other Party of its undertaking destroys theargument based on Cameroon's failureto protest

against Nigeria's oil operations in the area in question. By the same token, those operations

becarne clandestineones. To seekto derivelegalbenefit fiomthis situation,as Nigeria does, is to

seekto takeadvantageofone'sownwrongdoing: "nemoauditurturpitudinemallegans ".

19.Asthe Court declaredin its 1969Judgmentin the NorthSea ContinentalShelfcases, the

coastal State has"an original, natural, and exclusive(in short, a vested) right to the continental

shelf off its shores"25. According to the Court,this was "the chief doctrine" ofthe Truman

Proclamationandthe Courtfoundthat the Proclamation"must beconsideredas havingpropounded

the rules of lawin this field"26.Membersof the Court, as you know, this notion that the coastal

State has a natural right tothe continental shelf adjacent to its Coastwas subsequently given

expressioninArticle 2 of the 1958Geneva Convention on the Continental Shelf. The Court firmly

stated in thesameJudgrnentthat a Statehas an "inherentright"to its continental shelf,specieing:

"[flurthermore,the right doesnot dependon its beingexercisep2'. This concept wastakenup and

codified in the United Nations Convention onthe Law of the Sea. Paragraphs2 and 3 of

Article77, whichis devotedto the rights of the coastal State overits continental shelf,are worded

in definitive terms in this respect. Paragraphprovides:

"The rights referred to in paragraph 1[Le., 'the continentalshelf sovereign
rights for the purpose of exploring it and exploiting its natural resources'] are

exclusive inthe sensethat if the coastal Statedoes not explorethe continentalshelfor
exploit itsnaturalresources,no onemayundertaketheseactivitieswithoutthe express
consentofthe coastal State."

20. Paragraph3, whichrepeats verbatim the provisions of paragraph 3 of the 1958Geneva

Convention, goes even furtherin "locking in" the coastal State'srights over its continental shelf.

That paragraph makes the continental shelf totally inaccessiblto any otherState and, without the

slightest ambiguity,rules out the possibility that atitle can be based on effective occupation. It

2%~.J.Reports 1969,p.33,para.47.
26~bid.p,.4para.86.

"1.C.J.Reports 1969,p.22,par19. provides: "The rights of the coastal Stateover the continentalshelf do not depend on occupation,

effectiveor notional,or onany expressproclamation."

21. In otherwords, these rights donot needto be proved; they do not need to be claimed.

Thecoastal Stateholds them merely by virtue of being a coastalState; they are its and its alone.

Andif someone other than that State wishes tooperate on its continentalshelf, that person must

obtainits consent, and not just in any form- not tacit or implicit consent; it must be express

consent. A coastalState's abandonmentof its rightsover its continentalshelf thereforecannot be

presumed, and another State cannot seize those rights on the basis of some notion of acquisitive

prescription,whichclearly doesnot existin the lawof the sea. Nigeria willthereforehaveto offer

youproof that Cameroon has expressly consented to its conduc otf operations for theexploration

andexploitationofnaturalresourcesonits continentalshelf. Obviously,it is unableto do so!

22. Neither randomly defined blocksn,or improperly grantedoil concessions, nor theamount

of investment allegedly madeby Nigeria or third States can defeat Cameroon's rights over its

continental shelf. Nigeria cannot seekto determine unilaterallyanoil concession linein defiance

of conventionallaw. In his opinionappended to the Judgmentrendered in the case conceming

ContinentalShelf(Tunisia/LibyanArabJamahiriya), Judge Grosconsidered that, inasmuchas the

Libyan concession line was not opposableto Tunisia, "the Court rightly declares that a line of

concessionsis anon-opposable unilateralact". Andhe added:

026 "no unilateral act for the delimitationof the continental shelf on the part of an
interested State is opposable to another interested State- that is an axiom of
international relations,and to assert the opposite would destroythe very basis of the
theory of the continental shelfaccordingto which it isto be delimitedby agreement
betweentheparties orby wayofadjudi~ation"~~.

Inthe same vein,Judge Evensen asked"to what extenteconomicconsiderationsshould lead to the

acceptanceoffaits accomplis". And,wondering whetherthe dividingline should be drawnin such

a way as to preserve concessions unilaterallygrantedby oneof the parties to the detrimentof the

other,he responded: "Such an approachwould possiblybe contraryto internationallawas well as

to equity."29

28~.~.~eport1s982p,.155p,ara.22.

191bidp.318. 23. From the factual perspective, Nigeria maintains that Cameroon,in declaring its

willingnessto "review" the oil rights and concessionswhich the twoParties have grantedin the

maritime zonein dispute3',failsto faceupto the implications of itsown case andStatesthat, if the

Court wereto uphold Cameroon's claims, "there woulb de no question of negotiating. . Nigeria

wouldbe e~cluded"~'.

24.Membersof the Court,that is indeed acuriousreaction toCameroon'sopenness,andthis

moreover from acountry whichunceasinglyproclaims its willingnessto delimitthe boundaryby

way of negotiation. It is clear to see: there is nothing to be negotiated as far as Nigeria is

concemed, unlessthe outcomeof the negotiationsis fixedin advanceby it and is boundto favour

its interestsalone.

(b) Criticismofthe boundaryclaimed byNigeria

25. Members of the Court, in respectof the boundary claimedby Nigeria, a glance at

sketch-maps 13.2, 13.4, 13.8 and 13.9of Nigeria's Rejoinder,whose document numbers1 shall

give in a moment when 1 comment onthose sketch-maps, clearlyshows how the mechanical

applicationof the pure equidistance principlen leadto a result whichis not onlyinequitablebut

also quitesimply absurd.

027 26. Sketch-map 13.2,appearingin thejudges7 folder as documentNo. 106,shows that the

line from 1to X, shown by a dark line on the sketch-map, resulting from the Treaîy of

23 September2000 between Nigeria andtheinterveningState, is anegotiatedline whichabandons

the equidistanceprincipleto thebenefit ofNigeria. This sketch-mapcreates a false impressionof

mystery concerning Cameroon's rights north of Bioko because it shows nothing of the maritime

boundary between Cameroon and Nigeria between the endpointof the "Oil practice line", and of

the line drawnintheRio delRey,and point 1,Le.,the startingpoint ofthe lineinquestion, whichis

shown in a very dark colour- the starting point of the line adopted by agreement with the

intervening State. NigeriawilI no doubt explain that the missingsegment has not been drawn

pending the determinationof a tripoint, which it claims withoutindicating where it shouldbe.

30~eplyof Cameroo, . 425,para.9.105.

"~ejoinderofNigeria,p.519,para.13.28. ProfessorPellet explained yesterday why the Court could noti,n any event,fix a tripoint in the

present proceedings, assumingthatsuchapoint existed,whichit doesnot.

27. Sketch-map 13.4,appearing in the judges' folder as documentNo. 107,confirms this

course andendsthe falsemystery. Byplacing thestartingpointof the maritime boundary between

CameroonandNigeria in the Rio del Rey, it reducesCameroon'smaritimeareas to the north-east

of the island of Bioko to almost nothing, regardlessof the delimitationmethod adopted and the

course followed. It is unnecessary to return hereto the unreasonableness ofthe courseof this line

orto insistonthe unlikelihoodof the existence ofa"sand island",which impartssuchnoveltyto it.

Letus leave this"substantialisland", visible even at lowtide only to undersea divers,where it is:

inthe landofmake-believe.

28. Sketch-map13.8,appearing inthejudges' folderas documentNo. 108 and showingthe

returnto an "Oil practiceline" beginning at theouth of the Akwayafe and ending at the median

line (shown asa broken line) drawn on the basis of EquatorialGuinea's claims,showsthat at al1

events Cameroon's maritime areas in this zone are limitedto a tiny triangle to the north-east of

Bioko.

29. Sketch-map 13.9,appearing in thejudges' folder as documentNo. 109 and placing the

boundary between Cameroonand Nigeria once again in theRio del Rey, merely accentuates this

radical amputation effect, depriving Cameroon of any projection whatsoeverof its coast to the

north-east of Bioko, and hence of any EEZ or any continental shelf in this area. This,

Mr.President, is not a matterof delimitation; it is concertedexclusion. Cameroon'slegitimate

rightto the projection ofitscoastal frontisitesimplydenied.

30.Thisaggressivedelimitation,which seemsto amountto a delimitation by elimination,is

ofpractical interest in onlyone way: it showsby vivid contrastthat the delimitationproposed by

Cameroon isequitable becausereasonable.

II. Confirmation of the equitableness of the delimitation proposed by Cameroon

31. 1shallnow turnto confirmingthat the delimitationproposed by Cameroonis equitable.

Atthe outset,it is necessaryto disposeof Nigeria's argumenthat Cameroonis using the criterion

of proportionality both"as the method of delimitationand as the method of confirming the delimitation so produced"32. Nigeria finds Cameroon's argumentson this point to be "a

remarkably circularformof 'checking' or'~onfirmation"'~~.

32. The observationis correctbutno consequence resultsfrom it fiom the legal or technical

standpoint for the constructionof the line. The use ofcoastal segmentsin maritime delimitationis

a well-knownphenomenon. Whileit istrue that thismethod is sometimesusedsolely forpurposes

of checking the result of the delimitation,as occurred in thecases conceming the North Sea

ContinentalS'hep4and in the Yemen/Eritreaarbitrationcase3',it would be decidedly incorrectto

claimthat it hasnever beenused foranypurpose other than this. In the Gulfof Mainecase36for

example, a certain coastline lengthwas used in constructing theline. An equidistance linewas

drawnfor the second sectorof the line andthen correctedto take into accountthe disparity in the

lengthof the coasts. In thatcase, proportionalitydidnot serveto checkthe resultof the coursebut

was used in constructing theline itself. The samewas true in the LibyanArab Jamahiriya/Malta

case37.In otherwords, proportionalityisnot a tool used exclusivelyafterthe fact; it doesnot serve

solelyto check the equitablenessof theline. It canbeused fiomthe startin constructing the line.

33. It must be said, Mr. President, that evenwhen proportionality is used to test the

equitablenessofthe result achieved, itisimplicitly presentin constructing the line, becausethe line

can only pass the test of proportionalityif the initial method incorporatesproportionality in one

way or another. And thetest of proportionality generally applied in the cases citedaboveis aimed

at checking the proportionalityof the maritime areas awarded toeach of the parties to the case,

ratherthan relating,as in the presentcase,to the lengthof the coastal segmentstaken into account

inconstructing theline.

34. Mr. President, regardlessof the methodused, a delimitationmust lead to an equitable

solution. It wasclearly notatrandom that inthe Qatarv. Bahraincase, which produced yourmost

recent decision on maritime delimitation matters,your Court examined "whetherthere are

32~ejoinderofNigeria, pp.494-495, para. 12.27.
33~bid.,.494, para.12.27.

34~.C.J. eports 196p.3.
35~eethe Awardof 17December1999,para. 165.

'% C.J.Reports 1984, p.246.
"1.c.J. Reports 1985,p. 13. circumstances whichmightmake it necessary to adjust the equidistance linnrder to achieve an

equitableresult [emphasis added]" andthat it concluded that "[iln the circumstancesof the case

considerafionsofequiry [emphasis added] require thatFasht al Jarim should have no effect in

determining the boundary linein the northern sector". It is in the light of this fundamental

principlerequiring an equitableresultthat Cameroon wishes todiscussthe result it has reachedin

constructingitsproposedline.

35. Discussions conceming whether or not the result of the proposed delimitationis

equitable can in this connection relate onlyto the second sector, beginning at pt , since the

first sector, fromthemouth of the Akwayafe topoint G, has been delimitedby agreement. As

Cameroon has pointedout on severaloccasions,the delimitationof the first sector of the maritime

boundarydeviatesinmanyrespects,andto the detriment of Cameroon,fiom the positivelaw ofthe

sea, in that, in a delimitation relating forthe mostpart to the territorial sea,the equidistance line

wasnot respected even though there iin the sector in questionno specialcircumstanceof thetype

which your Court takes into consideratioin adjusting equidistance. But Cameroon accepted and

O 3 O stillaccepts todaythe disadvantage resultingto it from this course,sincethis was a delimitation by

agreement. Ithonours its commitments, whatevetrhey maybe.

36. [Projection.] Sketch-map No. 10.9, produceby Nigeria in its Rejoinder and showing

the various courses, provides a particularly striking overview. [This sketch-map, to which

Cameroonhas added colours- and nothing els- in orderto make theconfigurationseasierto

see, appears as document No.105 in the judges' folders.] It is clear that the projection of

Cameroon's coastalfiont along some 351km of coastline, as compared with the projection of

Nigeria's relevant coast,., 256km, is virtuallynil. And 1shall refrain fiom companng these

figures with the projectionof the coast of Equatorial Guinea, which,as has been said and said

again, is not a party to the proceedings. The result here of the pure equidistance method is

blindingly apparent inequity.

37. In the maritime boundarysector seawards from pointG, Cameroon'sproposed lineis

divided into four segments [projection],as shownby mapR23 in Cameroon'sReply, which was

shown yesterdayand appears as document No.95 in the judges' folder. A simple review ofthe

proportionalityratios between the respective portions of the Cameroonicoast and the Nigerian coast taken into account in constructing eachof the segments confirms the equity of the method

usedand,in consequence, of the result obtained.

38. The first segment, G-H- avery short one because these two points are nearly

coincident- does not cal1 for any specific test because it simply corresponds, as

Professor Mendelson pointedout yesterday,to a retum to equidistance, whichhad beenabandoned

in the successive agreed delimitations,in a sector in which, as 1 said, there are no special

circumstances.

39. In segment H-1,the proportionality ratiobetween the relevantportions of the respective

coastsof CameroonandNigeriais approximately 1to 2.3. Thisratio wouldhave beenmuchmore

disproportionateif Cameroonhad taken account ofthe segment of the line crossingBioko and,

afortiori,the entire lengthof that island'scoast. For example,taking into accountjust the width

alone of Bioko would have resulted,to Cameroon'sadvantage, inmoving point 1to point12,not

shown, some 16.3 kmto the north-west along the Bonny-Campo line.

40. For segment 1-J, the proportionality ratiois 1 to 1.25 and it is also 1 to 1.25 for

segment J-K.

41. The segment from J to K merely indicates a direction withoutidentifiing a defined

endpoint. The point Lor L' added by Nigeria hasnever been indicatedby Cameroon, as1pointed

out yesterday.

42. Itcan be seenfromthese proportionalityratios thattherehas beenlittle adjustrnentof the

equidistance line along certain segments, at least untillast partof segmentH-1. Fromthere, the

course veers westwardsto take better accountof the general configurationof the coasts and the

existenceof Equatorial Guinea's islandof Bioko. Mr.President,it would notbe possibleto draw a

more reasonable maritime boundary between Statew sith adjacentcoasts in an area characterized

by an important circumstance,the islandof Bioko in this case. One look atthe map showing the
i
equitable line proposedby Cameroon is enoughto make us bow to the facts [projection:

sketch-mapNo. 90 in thejudges' folder]: on the basis of this line, Mr. President, Nigeria obtains

the most it can hope for on the eastem flank of its maritime boundarywith Cameroon, while

Cameroon remains completely in the dark concernintg he maritimearea it will be able to obtainin

thesamezone,as thatdependson the outcome of negotiationswithEquatorialGuinea. III. Conclusions on themaritime part

43. Mr. President, Membersof the Court, as it prepares to close its presentation on the

maritime boundary in this first round of oral argument, Cameroon would liketo draw your

attentionto four crucialpoints.

44. First, Cameroon has explainedwhy your Court can and should delimit as fully as

possible itsmaritime boundary withNigeria; to refrain from delimiting beyond pointG would not

only leave burning the flame of a major source of conflict betweenthe two Parties, and more

generallyin the Gulf of Guinea,but above al1would be implicitly touphold, at the same time, the

maritime division made in utter disregard of Cameroon's rights. Cameroon fears that, should the

Court fail to decide the definitive delimitation, or in any case as complete a delimitation as

possible, ofthe maritimeboundarybeyond pointG, further litigationwould become probable. But

if Cameroonwere to take the initiativein that litigation,it would be virtually impossibleto submit

it to you. Nigeria amended its declarationof acceptance of the optional clause conceming the

Court's compulsory jurisdiction immediately after your Judgment of 11June 1998 on the

preliminary objections, attaching toit numerous reservations which make it virtually impossible

from now on to bring proceedings againstit before this Court. That is why Cameroon cannot

overstate itshope that,al1things considered,the Court will definitively settle the dispute of which

it is seised.

45. Second, the fact that oneof the Parties has conductedoil operations in the disputed area,

while theother has refrainedfromdoing sopending yourjudgment, cannot precludethe Courtfrom

proceedingto delimit the maritime boundary,as Cameroon is respectfully requesting it to do. In

truth, in respect of an undelimited area, theell-me11granting of oil concessionsby one of the

States concemed cannotbe a relevant fact forpurposes of the delimitation; it isafaitccompli,not

afaitjuridi [leuelfact]. Uncertain of thesituation, Cameroon refrained from acting, hopingthat

the situation would be clarified through negotiation, while Nigeria embarkedon significant oil

operations in a zone where the respective rights of theStates obviously overlapped: hence,the

recently createdoil concession overlaps tobe found in the zone, a situation which Nigeriaattempts

to remedy in its fashionby entering into bilateral treaties with other concerned Statesin the area,

without any concern whatsoeverforCameroon7slegitimate rights andinterests. 46. This situation cannot butshow even more clearlythe wisdom of the reference ofthis

disputeto the Court, and theneedforthe Courtto clarify matters by settling the dispute.

47. Third, Nigeria does not put fonvard any specific boundary line up to pointG: not

because it doesnot seek one,but rather becauseit is not exactlysure which foot to danceon. But,

in putting both feet fonvard at once, it entangles its legs: to convince the Court that the

delimitation based onthe YaoundéII and MarouaAgreementsis invalid, it maintains thethesisof

an unrealisticdefacto maritime boundary beginning at the mouth of the Akwayafeand following

an allegedoilconcession line: this isthe "OilPracticeLine"(see fig. 13.8appearing afterp. 522of

its Rejoinder); andat the same time, to convince you that Bakassi is Nigerian, it situates the

maritimeboundaryinthe Rio de1Rey (see fig.13.09following p.524of its Rejoinder).

48. Fourth,EquatorialGuinea7sintervention, which wasin a sensedesiredby your Court,as

can be seenfrom paragraph116 of its Judgmentof 11June 1998on the preliminary objections3*,

cannot preclude the Court from delimiting the boundary between Cameroonand Nigeria. Quiteto

the contrary, that intervention hasthe major advantage ofenabling the Court, thus being fully

informed, torulewith full knowledgeon al1ofthe Republicof Cameroon's submissions to it andto

cany out a complete, definitive delimitationof the maritime boundarywith Nigeria taking due

accountofthe Iegalinterestofthe intervening State.

49. Mernbersof the Court, Cameroon,1shall repeat, does not know of any mathematically

precise technique in matters of maritime delimitation and it would not have you believe that,if

there were sucha method, it wouldhave appliedit in the present casein order to achievea perfect

result aboveal1reproach. A scientificallyperfectmethod applicablene varietur to al1cases would

even contravene the equitable result principle whichgoverns the entire law of maritime

delimitation. Cameroon endeavoured, modestly but rigorouslty o, constructa line whichitbelieves

the most equitable possibleunder the rules and techniques of the law of the sea. It has noother

pretension.

38~.~.Reports1998,p.324. 50. Mr. President, Members ofthe Court, while Nigeria, atleast as to part ofthe boundary,

does not know which lineto choose, Cameroondoes propose a clear line, which hasnot changed

sincethe initiationofthis case, evenif its CO-orsadto be adjusted.

51.This line followsa coursefiom:

- the intersectionof the straight line joining Bakassi Pointto King Point and the centre of the

navigable channelof the Akwayafe to "point 12", correspondingto the "compromise line"

entered on British Admiraltyhart No. 3433by the Heads of State of the two countries on

4 April 1971 in connection with the YaoundéII Agreement, and, fiom that "point 12" to

"pointG, followingthe courseestablishedbythe Maroua Agreementon 1June 1975;

Q 3 4 - fiom point G, that line then swings awayfromG to H with CO-ordinates92"21' 16" E and

4' 17'00" N, and extends throughpoints1(7" 55'40" E and 3"46' 00" N), J (7" 12'08" E

and 3" 12'35" N) and K (6"45' 22" E and 3"01'05" N), represented onthe sketch-map

R 21 on page 407 of Cameroon'sReply (document No.90 in the judges' folder) and which

meets the requirement for an equitable solution, up tothe outer limit of themaritime zones

which international law placeserthe respectivejurisdictionsofthe twoParties.

52. 1 thank you for your kind attention and askthat you please give the floor to

ProfessorOlivierCorten so that he can introduce Cameroon's oral argumensn the question of

Nigeria'sresponsibility. Thankyou.

The PRESIDENT: Thank you, Dean Kamto. 1 now give the floor to

ProfessorOlivierCorten.

Mr.CORTEN:
III. RESPONSIBILITY

11. Nigeria's responsibility

(a) The scope of Cameroon's Application

(b)The circumstancesprecluding wrongfulness relied on by Nigeria

1.Mr. President,Membersofthe Court, allowme first ofl1to Saywhat a great honourit is

formeto appearoncemorebeforethehighest world court.

2. It falls to me today to address the final aspect of this first round of pleadings by

Cameroon,which concernsthe international responsibility incurby Nigeria for its invasion and subsequentoccupationofseveralareasof Cameroonian territory.Even if itmay seem incidental to

the territorialdisputent0which it is grafted,this is an extremelyseriousissue. Theinvasion of

several areas of Cameroonian territory, whetherof Bakassi in particular or the Darak zone,

occurred several years ago now, and the military occupationhas continuedsince. This invasion

and subsequent occupationhave caused considerabledamageand continueto do so today. 1ara

speaking here, of course, of material loss, both actual damage and loss of earnings. Above all,

however, as theAgent ofthe Republic of Cameroon pointed oultast ond da^ ^'e,military action
0 3 5
has caused human losses: as you know,there have been many casualties,including a number of

deadandmanymore injured.

3. Mr.President, none of this would have occurred ifNigeria had respected the temtorial

sovereigntyof Cameroon andhad genuinely optedfor negotiationor any other peacefulmeans of

its choice. In accordancewith the well-established principlesof internationalState responsibility,

Nigeria owes reparation for al1 of the injury that it has caused by its unlawful invasionand

subsequentoccupation.

4. At first sight this aspect of the case is thus particularly simple. Cameroon has

demonstrated,both in its written andin its oral pleadings overthe last fewdays, that the disputed

temtories occupied by Nigeria clearly fellunder Cameroonian sovereignty. Now, and this is an

important point,Nigeriadoesnot denythat it is presentintheterritories inquestion,neitherdoesit

deny - atthevery least"inprinciple"here again-the ruleprohibitingtheinvasionoroccupation

of territories under the sovereigntyof a neighbouring state40. An irrefutable conclusion follows

from these premises: thereis no reason,legalor othenvise,preventing Cameroonfromobtaining

reparationforal1of the injurythat Nigeria has caused.

5. How,then, in thesecircumstancesis Nigeria attemptingto evadeits responsibility? First

ofall, as weknow, it claimsthat it hasoccupied onlyareasof its own territory. This firstargument

refers directlyto the temtorial dispute, and mightd one tothink that, a contrario, Nigeria admits

its responsibility if the Court recognizesthe rights of Cameroon over the disputed territories.

3 9 2002/1,p. 26,par4.
40
Counter-MernorialofNigeria, Vol.III,p. 632, para.24.19; Rejoinderof Nigeria,pp.552-553,paras. 15.10and
15.11infine. However,and somewhat surprisingly,this isnot the case. This is not the casebecause, according

to Nigeria, there are special circumstancess ,pecific to the present case, which preclude any

responsibility on its part, even admitted, ex hypothesi, that it has invaded and subsequently

occupiedcertainterritoriesthatarenot underits sovereignty.

6. There is no circumstance specificto the present case which precludes the raising and

engagement of Nigeria's responsibility. That is what, if 1 may, 1 wish to demonstrate to you

initially, before Professor Thouvenin describes to you the course of the invasion on the ground.

Lastly, Professor Tomuschatwill show thatNigeria hasnot compliedwith the Order made by the

Courton 15March 1996andonthat accountalonehas incurred international responsibility;and he

will sumup this sectionof Carneroon'sargument.

Theincurringofinternational responsibility by Nigeria

7. First, therefore, as regardsmy part of the presentation,there can be no doubt that in

principle Nigeriahas incurred international responsibility,ecause,by the invasionand subsequent

militaryoccupationof territoriesto whichithasno title,it is clearlyviolatingthemost fundamental

principlesof internationallaw: non-use of force,the peaceful settlementof disputes,the principle

of non-intervention, respectfor sovereignty4'. This invasion andthe wrongful occupationthat

followed it are the direct responsibilityof the Nigerian army. The two separate elements that

constitute international responsibility,the wrongful act and the attribution of that act, are thus

present4'.

8. Here again the facts, like the law, speak for themselves. That is a source of deep

embarrassrnent forour opponents,who havetherefore developeda strategy in their pleadingsthat

seeksto complicatethis aspectof the disputeas much as possible. In this respect three elements

are worth selecting from the Nigerian ~ejoinder~~a ,nd these are the three elements that 1 will

addressintum inmy argumentthis moming:

4'~emorial of Cameroon,pp.596et seq.
42~ntemationalLaw Commission,Art.2 of the Draft Articles on State Responsibility, Aug. 2001;l
Assembly,Off.doc.,Fijiy-SixfhSession,SupplementNo. 10 (A/56/10).

43~ejoinderofNigeria, Vol.III,Ch15. - first, onemight thinkon reading the Nigerian pleadings that Cameroon's Application sought to

hold Nigeria responsible foreach of the many incidents thathave occurred al1 along the

6337 fr~ntier~~between thetwo countries; this, however,is not the case, Mr.President, as 1will

shortlyshow;

- secondly,and in anyevent, Nigeriaclaims tohave acted in self-defencewhen it invaded and

subsequentlyoccupied severalpartsof Cameroonian territory; this argumenits totally without

foundation,as wewillsee ina fewminutes;

- lastly,Ouropponentsare puttingfonvard an argument thatis to Ourknowledge unprecedented

intheannals of legalhistory, thatof an invasion and "reasonable" occupation resultingfrom an

"honest" mistakethatpurely andsimply relieves it of responsibility;this singular notionwill

be rebutted in thethirdand lastpartof mypresentation.

A. The scope of Cameroon'sApplication: the unlawful invasionand subsequent occupation
of partsof its territory

9. Cameroonwillnot take thepath that Nigeriaseekstomake it follow, namelyto attempt to

treat in isolation eachof the many incidents thathave occurredal1alongthe f?ontier4'. Sinceits

first submissions,the Republic of Cameroon has expressly treated the Nigerian invasion and

subsequentmilitary occupationas a single entit~~~.Last Monday DeanKamto recalled this,with

citationsin support, so1 am not retumingto it4'.

10.This overallapproach,whichdeeply embarrassesthe other side, is governed in thefirst

placebythefacts, so obviousis it that al1the specific eventsof invasion and subsequent occupation

form part of a single strategy conductedby the Nigerian State over a period of many years48. 1

venture hereto referyouto the Memorialof Cameroon for further details.

11.However, andthat is whatmatters to us here, theneed to view Nigeria's conduct as a
4
O 3 8 whole follows directly fromthe specific legalniles that govem Stateresponsibility. In the-partof

44~ejoinderofNigeria,p. 538,para. 1;.p. 543,paras. 14.23and 14;p. 551,C.;p. 602etseq.C.

45~ejoinderofNigeria, Chap. 16,pp.597-712.
46~emorialof Cameroon,p. 670(e)anda; Replyof Cameroon,p. 592, (e) a.d

47CR 200211, pp. 39-41,paras. 31-39; Reply of Cameroon,p. 537, para. 11.169; p.493, para. 11.25; p.495,
para.11.30.
J8~emorialof Carneroon,p. 5et seq. its drafi dealing with a breach of an international obligation extending in time, the International

Law Commission statesthat "thebreach ofaninternational obligation byan act of a Statehavinga

continuing character extends overthe entireperiodduringwhich the actcontinuesand remains not

in conformitywiththeinternational ~bligation"~~A . rticle 14,paragraph2, of the InternationalLaw

Commissiondrafi was annexedtoresolution 56/83 of the General Assembly otfhe United Nations

of 12Decemberlast. In its commentarythe Commission citedin this connection: "theunlawful

occupationby one partyof the territoryof anotherStateor the stationingof forcesin another State

without itsc~nsent"'~.Legally,therefore,the occupation ofa territoryis to be regardedas a single

act.

12. This is precisely the situation in which we find ourselves in the present case.

Mr. President, Membersof the Court,as 1speakthe Nigerian militaryoccupation continuesonthe

ground and Nigerianmilitary forcesare stationed on Cameroonianterritory withoutthe consent of

Cameroon. This indisputable fact can be established independently of the international

responsibility that Nigeria may haveincurredinanyparticular specificincident.

13.The fact thatthe variouselementsof one and the same military operationshould not be

considered in legal isolationhasbeenrecognizedby the Court itselfin circumstancesother thanthe

particularly obvioussituation of the occupationof a territory. In the Military and Paramilita~

Activitiescase the Court consideredthen condemned the policy ofsupport by the United States for

the contrasin its entirety; itdidnotseekto isolateeach ofthe circumstancesin whichthis support

showed itself51. More recently, in the Legaliiy of Use of Force case, the Court, as you will

doubtless recall, dismissed claimbsy Yugoslaviaseekingtoisolatethevarious aspectsof the armed

attackby the respondent States. Hereagain,the Court preferredto stress the needto considerthe

military actionas a whole, statingthat the acts in question- and here 1cite the Court- "have

been conducted continuously ..."".

49~rt.14, para2,draft annexed to resolution56/83 of the General Assembly of the United Nations of
12Dec.2001.

"para. 3 of thecommentaryon Art.14; see also Yearbook, 1978,Vol.1,pp. 39-40,para.29.
S'~.~.~Reports 1986,p. 146,para.3of the operative part.

S2~egalityof UseofForce (Yugoslaviav. Belgium),Order of2June 1999,I.C.J. Reports 1999,p. 134,para.28. 14. In Ourspecific case, becausehere there is an occupation,afortioo rnie cannotisolate

each of the events that illustrate the invasion and subsequent occupation by Nigeria of

Cameroonianterritory. Theconductof Nigeria is in lawone single and continuingwrongfulact,

which doesnot prevent its taking the formon the groundofa large number of acts (or omissions)

which arelinked intesre by the samerationale, legalaswellas factual.

15. What place is there then, in this context, for the arguments concentrating on certain

particularlyserious events which ProfessorThouveninwill bepresenting to you in a few minutes'

time?

16. Those events illustrate the reality ofthe invasion and subsequent occupation onthe

ground, andshow that thisis in no sensea "peaceful" occupation,as Nigeria claims in seekingto

rely on a rightof conquestin orderto create its territorialtitleartificially. Moreover, the emphasis

that will be given to certain particularlyrious attacks is directly relevantto the assessmentof

damage, to be made in a subsequent phaseof the proceedings53and which, in accordance with

international caselaw, may result in the award of a globalamount deemed to cover al1of the

damagecausedS4.

B. Nigeria cannot preclude the wrongfulnessof its conduct by invoking a situation of

self-defence

17. 1 now corne to the second part of my argument, which involves rebutting the

"self-defence"argumentraisedby ~i~eria". Nigeria'sarguments areuntenablehere also, andhere

again it is essentialto notethat thefailure ofits case ontheboundarydisputewould inevitablylead

O 4 (b to its responsibility being put in issue.Thus,Mr. President, weare facedwith two alternatives:

- either Nigerian forcesdid in factenter Cameroonian territory, andthe self-defence argument

cannotbe raised, becausethen it is Cameroon,as the occupied State,that could avail itselfof

that argument;

53~isherisurisdiction (FederalRepublicof Gerv.Iceland),I.C.J. Reports 1974, p. 204, para. 76; case
conceming Militaryand Pararnilitary Activitiesin and against Nicaragua(Nicaraguav. UnitedStates of Arnerica),
I.C.J.Reports 1986,pp. 142-143,para. 284; UnitedStatesDiplornaticandConsularSta1C.J.Reports 1980,
p.45, para. 6,ofthe operative partof theJudgment.
S4~ainbowWarrior,RSA,Vol. XX, pp.202 and 213 and Reportby the ILC on the work of its 45th Session,
Yearbook1993,11,Part 2, p. 84,para.20.

55~ounter-~emorialofNigeria, p.646,para.24.49and RejoinderofNigeria, pp. 581-582,paras. 15.59-15.60. - or, and this is the other alternative,the Nigerian forcesas it were "invaded" and subsequently

"occupied" theirown territory, and it is then, but then alone, that the "self-defence" argument

mightpossibly be raised.

Thus Nigeria must first establish the validity of its case on the territorial dispute before it can

considerraising anydefence interms of responsibility.

18. Since, in any event in Cameroon's view,it cannot get over the first hurdle, it will by

definitionbe unable to cross thesecond. Moreover, even if the Court were to find in its favour on

the territorialdispute, it ismorethan doubtfulwhether the conditions essentialto true self-defence

are met in the present case. In particular Nigeria has certainly not establishedat this point that it

had previously beenthe victimof a veritable "armed attack"by Cameroon.

19.Moreover, Mr. President, it appearsthat Nigeria does not even dare to daim that it has

beenthe victim ofan armed attack within the meaning of Article 51of the United NationsCharter.

Neitherin its Counter-Memorialnor in itsRejoinder doesNigeria use that expression inrelation to

the conduct which it believes itself entitledto attribute to Cameroon. Significantly, it prefers

toned-down expressions such as, and here 1cite the Nigerian pleadings, "inc~rsion"~~o , r "armed

in~ursion"~'",incident" or morerarely "serious incident"58.On the other hand, there is no mention

at any pointof an armed attack -or "agression armée" -to cite the expressions used in Article 51

of the United NationsCharterinthe two languages.

043. 20. Mr. President, Members of the Court, to my knowledge we are in an unprecedented

situationin contemporary internationallaw, inwhich a State adduces the argument of self-defence

beforeaninternational court without even claiming to have been the victim of a prior armed attack.

21. In any case the self-defence argument is unsustainable,whatever the language used by

Nigeria. Cameroonhas never attacked anyone. It is Nigeria, andNigeria alone, that has sent its

troopstothe other side of the boundary.

56~ounter-~emorialof Nigeria, p. 646, para.24.49, p. 804, paraRejoinderof Nigeria, p. 559, n. 29,
p. 561,para. 15.34.
57~ounter-~emorialofNigeria, p.824, para.25.75.

"~ejoinder ofNigeria, p. 561, para.15.35. C. Nigeria incurs responsibility notwithstanding any "reasonable mistake" or "honest belief"

22. 1now cometo the third and last part ofmy argument, which willinvolverebutting the

argument,as extraordinaryas it is fallacious,of "reasonable mistake"and "honest belief', which,

accordingto Nigeria, amountto a circumstance excludingthe wrongfulnessof its conduct. If we

follow the reasoningof Ouropponents, Nigeria has always honestly believed that the Cameroonian

territories thatit occupies belongedto it, which would enableit, on the assumptionthat this belief

provedto be erroneous,to avoidits international responsibility being engageidn any way.

23.However, Nigeriadoesnot cite anyprecedent or authority in its support. And in factno

Statehas ever claimedto justiQ an invasionor an occupation of territoryby relying on its honest

belief. To my knowledge Nigeria's argument is without precedent. It cannot find support in any

legaltext,or in thepractice ofStates, still lessinrecognitionby internationaljurisprudence.

24. Nigeria answers that no judicial decision on a territorial delimitation has ever been

coupled withan award of reparation. 1will not retum to the Temple ofPreah Vihearprecedent,

already citedby DeanKamtolastMonday,which plainly contradictsNigeria'sargument5'. In any

event it is not clearwhat can be deduced from this debatein the present case. In mostof the

precedents citedbyNigeria, thejurisdictionof the Court wasbased on a special agreement,and it

is certainly quite true that such agreements have concerned territorial disputes, containing no

mentionof any dispute concerning international re~~onsibility~~I.t could perfectly wellhave been

othenvise. In any case it seemsexcessiveat the very least to allege a practice,and a fortioa ni

opini joris, capableof constitutinga general custom - one, moreover, opposableto Cameroon,

which would preventit today fiom submitting a claim for reparation againsta State that has

invaded and thenoccupiedseveralparts of its territory.

25. Nigeria insists curiously ona need to take accountof the particular characteristicsof the

legal rulesapplicable inthe present case, which itclaimsallow honestbelief orreasonable mistake

as a defence. However,it shouldbe recalled here that the prohibitionof the useof force, which is

clearly the rule principally involved here, isfundamentaIlyopposed to any violation of the

"existinginternational boundariesof another State" (resolution 2625 (XXV)of the United Nations

5 9 ~2002/1, pp.37-38, paras.23-;5 I.C.J. Reports 1962, pp. 11 and 3Reply of Cameroon, p. 474,
para.10.35.
60~eplyof Cameroonp.474,para. 10.36. General Assembly), withno exception for the hypotheticalcase of the "honest belief" of an

interveningpower regarding thepositionofthat boundary. Whatmatters, therefore,is to determine

whether the conventional line claimedby Cameroon is valid in termsof international law.Ifthat is

the case,we then have an "existing internationalboundary" that has been crossedby force. The

responsibility of Nigeriaishenclearlyengaged.

26. Nigeria then suggeststhat, should the Court find against it on account of an unlawful

occupationthat hadcontinued formany years, it wouldbe penalized"by surprise", sincethe rules

engagingits responsibility werebeing applied,as it were,retroactively. However,there canbe no

questionof any suchretroactivitybecause,whatever theoutcome of the territorial dispute,we al1

knowthatthe Courtwill not determinea boundaryde novo. It will determinewhere theboundary

betweenthe two Statesparties lies wit- to cite a landmarkdecision- a "declaratoryeffectfiom

the date ofthe legaltitle upheldby the courtv6'. If Nigeriahad beenin doubtas to the positionof

this boundary, it should have refrainefromusing armedforce. By choosingforce rather thanlaw

it has actedto the detriment of Cameroonin the firstplace,but alsoandaboveall, ithas actedat its

ownrisk.

27. Mr. President, my presentation might endthere but, strange as it may seem, this

purporteddefence of "reasonable mistakeand honestbelief' is Nigeria's only real argumenta ,nd

therefore1 would liketo completemy speech by expanding brieflyonthe followingtwopoints:

- first,Nigeria cannot show inthe presentcasethatithas madea "reasonable mistake";

- secondly, "reasonable mistake"does not amountto a circumstance precludingwrongfùlness,

anymorethan"honestbelief'does.

1. Nigeriacannot showinthepresent casethatit hasmadea "reasonablemistake"

28. First of all, Nigeria cannot show in the present case that it hasmade a "reasonable

mistake". It shouldbe recalled atthis pointthat the boundary between Cameroon and Nigeriahas

been establishedfor decades,and is recordedin clearly identified conventional instruments.The

disputedzones of Bakassi andLake Chadhave even been the subject of a demarcationprocess,

which for the mostpart has beenbrought to its conclusion. Here, then, we are a very longway

61~rontier ispute(BurkinaFaso/Mali),I.C.J.Reports1986,pp.563-5617para. from a situationlikethat in a maritimezone,in which determininga boundary linewith certainty

may sometimesbe tricky, just as it may be dificult to make a delimitation when conventional

instruments arerare or even non-existent. As my colleagueshave already shown, Nigeria itself

recognizedthis conventional linefor many years,and evenparticipated directlyin the demarcation

workup to relatively recent times. Inthesecircumstances,it seemsparticularlyinappropriate forit

suddenly to claim that it has made a mistake atso the positionof the boundaryIine separatingthe

two States.

29. Moreover, itis equally obvious that the conduct of the Nigerian authorities cannot be

described as "reasonable". Scholarly opinionis in agreement in contrasting reasonable conduct

with that which is"excessive",and in equatingthe formerwith that whichis "normal",reasonable

and meas~red~~.Mr.President,Members of the Court,do we have reasonableconduct beforeus

here? Evenif we were to read several hundred precedentsin which the conceptof reasonableness

has been invoked, we would find that no court, or even State, has ever claimed that it was

"reasonable7'tohavebeen so seriouslymistakenabouttheextentof one'srighd3.

2. "Reasonablemistake" orgoodfaitharenotcircurnstances precluding wrongfulness

30. In any case, and thisbrings me to the second point that 1 wished todari@, a mistake,

even assuming it to be reasonable and made in good faith, cannot amount to a circumstance

precluding wrongfulness. At most, perhaps, under certain conditions itmight have limited legal

consequences in relation to the calculation ofcompensation64. On the other hand, there is no

precedentin which aState haspurely and simply avoided its responsibility by showingthat it had

acted "reasonably"or "by mistake"in invadingits neighbour.

31.It shouldmoreoverbe made clearthat in Ourcasethe very invocationof the notionof a

circumstance precluding wrongfulnesiss initselfproblematic. The ruleprohibitingthe useof force

is sofundamentalthat the possibilitiesof derogationhavebeen drastically limited,as is shown by

Article26 of the ILC draft which 1just cited,which provides: "Nothingin this Chapter [which

pp. 923-924.reasonable",Dictionnairede droit internationalpublic, J. Salmon (dir.), Brussels,Bruylant,/AUF,2001,

6;O. Corten,L'utilisationdu "raisonnab1e"parlejuge international,Brussels,Bruylant, 1997,696 p.
64~ep~yof Carneroon,p. 473,para. 10.34. concems circumstances precluding wrongfulnessp ]recludesthe wrongfulnessof any act of a State

which is not in conformity with an obligation arising under a peremptory nom of general

international la^."^* There isno doubt that cases of invasionor occupationare covered by this

typeof provision. But, apartfrom the specificcaseof self-defence,they thusin principle admitof

nocircumstanceprecluding wrongfulness.

32. In anyevent, andthis isperhaps the decisive factor,it is pointlessto look forany hint of

"reasonable mistake" or "honest belief" in thesection of the Commissiondraft dealing with

circumstances precluding wrongfulness. Nigeria claims that th Iiestrawnup by the Commission

isnot exha~stive~~A . llowme,Mr. President, at thisstage to cite a recently published dictionary of

internationallaw,which inthis connection merely Statesa truthacceptedby scholarly opinion:

"ChapterV of the first part of the ILC draft articles on State responsibility

containsan exhaustivelist of these circumstances: the consentof the (victim) State
(Art. 20), countermeasures in respect of an intemationally wrongful act (Art.23),
force majeure (Art.24), distress (Art.25), necessity (Art.26) and self-defence
(Art. 22)(seeILCdraftarticlesonStateresponsibility,2001version)." 67

33. Thereare six circumstances that preclude wrongfulnessn ,o moreand no less,and this is

the result of a discussionthat has lastedfor many years,as those on the other side of the bar are

perfectly well aware. Thus there is nohint of reasonable mistakeor honest'belief, eitherin the

0 4 5 draft or, despite what Nigeria implies6',in its preparatory ~ork~~. There has never been any

questionof introducingan article on "reasonablemistake" or good faithintothis part of the draft.

Nor is there any sign of theseallegedgroundsfor relief inthe case law, or indeed inlegalwritings

thathave dealtwiththe topic70.

34. Evenassumingthatthey wereproven - quod non, aswe have seen -, in no case could

Nigeria's "reasonablemistake" or "good faith" be regarded as circumstances precluding the

wrongfulnessof its conduct. If we think about it,good faith implies rather, in the words of an

6 5 ~Report, 2001,ascitedabove.
66~ejoinderof Nigeria, pp.578-580, para. 15.57.

67~Salmon(dir.), Dictionnairede droilinternationalpublic, op. ci;emphasisadded.
68~ejoinderof Nigeria, p. 580, para. 15.57.

69~econdreporton State responsibility, James Crawford,30 Apr. 1999,AICN.41498iAdd.2, para. 215.

"5. Salmon,"Les circonstances excluantl'illicéité"in K.Zemanek andJ. Salmon,Responsabilitéinternationale,
Paris,Pedone, 1987. adagerecognized in international law, that "no one can rely on his own wrongdoingn7'. Today,

therefore, Nigeriacannot rely on its past negligence, or, more specifically, on its own incorrect

interpretationof the conventional instrumentsapplicable, for this indeed - assuming that itdid

occur- would represent a me error of law, Mr.President, an error in the interpretationof the

conventional instrumentsand legal rules applicableto delimitationof the boundary. To decidein

Nigeria'sfavour onthis particular pointwouldcreatea precedent, dangerousto say the least,in the

historyof law and international relations. Any Statecould then invade and subsequently occupy

the territones that it claims with no risk of engaging its responsibility, even though- and you

knowbetter than anyone thatthis is nota frequentoccurrence - its internationalresponsibility had

beenengagedandrecognizedas suchbyaninternationalcourt.

35. In short,Mr. President,Membersof the Court, we mustnot lose sight of the essenceof

the situation: factsacknowledgedby bothParties - the deploymentand continuousstationingof

Nigerian troops in Cameroonian temtory; legal principles accepted by all, in particular, the

prohibition ontheuse of force; a conclusion: the responsibilityofNigeria.

36. Mr. President, Membersof the Court, 1 thank you most warmly for your attention.

Mr.President, afîer the break 1 will ask youto give the floor to ProfessorJean-Marc Thouvenin,

whowill describein detail in his presentationthis morning the course,on the ground thistime, of

the invasion and subsequent occupation bytheNigerianarmy.

The PRESIDENT: Thank you, Professor. We will now adjourn for approximately ten

minutes.

TheCourtadjourned from 11.25 to 11.45a.m.

The PRESIDENT: Pleasebe-seated. The Sittingis resumed, and 1now give the floor to

Professor Jean-Marc Thouvenin onbehalfofthe Republicof Carneroon.

- -- - - -

"R. Kolb,Labonnefoi endroitinternationalpublic,Paris,P.U.F.,2000487-499. Mr. THOUVENIN:Thankyou,Mr.President.

III.RESPONSIBILITY

11.Nigeria's responsibility

(c)SeriousviolationsbyNigeria ofbasicprinciplesofinternationallaw

1. Mr. President, Members of theCourt, my task now is to show you how Nigeria has

violatedand continues toviolate the most basic principles of international law byinvading then

forciblyoccupyingparts of Bakassi and LakeChadunder Cameroonian sovereignty.1shall begin

withthe events whichtook placeinBakassi, before consideringthecase of Lake Chad.

(i)Bakassi

2. In regardto Bakassi,1shall concentratein my statementonthe mostserious acts, first the

invasionand occupation of south-west Bakassiin 1993 and 1994,then, second, the fighting in

February1996.

1.The military invasion of south-west Bakassi

3. The Parties bothagree that Nigeria deployed troopsin the westernpart of the Bakassi

Peninsulafiom 1993 onwards,and has maintainedits military occupationsincethen. Nigeria has

expressly acknowledged this (Counter-Memoriao lf Nigeria, p. 668, para.24.94; Rejoinder of

Nigeria, p. 656, para. 92; Rejoinder of Nigeria, p. 552, para. 15.10); it has even produced

O4 7 photographs illustrating its military occupation (Counter-MemoriaflNigeria, Vol.XXII,Ann. of

photographs, plate 13).

4. Threepoints stillivideus, which1shall addressin tum.

(a) Therewas no military occupation of any part of Bakassi by Nigeria prior to late
December 1993

5. Mr. President, not contentwithadmittingthat ithas occupiedpart ofBakassisincethe end

of 1993, Nigeriahas added (Counter-Memorial of Nigeria, p. 250, para. 10.90; Rejoinder of

Nigeria,p. 118,para.3.131)or implied(CR 1996/4,p. 82 (SirArthur Watts)) that ithasmaintained

a rnilitarypresencethereover a far longerperiod. Obviously,Ouropponentsadvancethis argument

to enable them to claim that the Nigeriantroops did not invade anything in 1993- it is not possible toinvade a temtory whichone already occupies - and that any fightingin Bakassiwas

purely theresult of Cameroonian attacks.

6. This is the first point of total disagreement. Camerooncontends exactly the opposite,

namely, primo, that Nigeria had not estabIished any military presence at Bakassiprior to

December1993, and, secundo, that, on the contrary, the Cameroonian forces were established

there.

7. The Court will first observethat Nigeria has been unable to produce any evidence

whatever in support of its arguments, which it merely repeats(Rejoinder of Nigeria, p. 118,

para. 3.131; Counter-Memorial of Nigeria, p2.50, para. 10.90). Not without contradictingtself,

however, particularlywith regardto the IsaacBoro military camp. Althoughit statesin its written

pleadings that "The IsaacBoro military camp has been situatednear West Atabong since the

Nigerian civil war" (Counter-Memorial of Nigeria,p. 250, para. 10.90), we also read in the

pleadings thatthe Nigerianarmedforcesinfact left the IsaacBoro base back in1968,afterthe end

of thecivilwar inNigeria (Counter-Memoriao l fNigeria,p. 267, para. 10.157).

8.The reality is that, aftera shortperiodwhich, if Nigeriais to be believed, cameto an end

in 1968,Nigeria had no military installations leftin Bakassi, at least before the invasion of

1993-1994. It is not 1 who Say this, but the Nigerian Ministerfor Foreign Affairs himself,

Mr. Babagana Kingibe,in aninterview givento the BBC, extracts fiom which were publishedin

The Guardian newspaper on 12February1994. According to Mr. Kingibe at thetime: "the

disputedareahad for long beenneglectedby successive govemments". Andhe added, confirming

0 4 8 a contrariothe absenceof Nigeriafiom thearea before 1993-1994: "We are going to establishour

effectivepresence there" (Memoriaolf Cameroon, Ann. 338).

9. Itis admittedlytrue that, since the early 1980s,and especiallyduring the 1990it was

possible to observea certain Nigerian military"presence" inBakassi, as a result of a number of

infiltrations (see Reply of Cameroon, pp. 510-527, paras.11.77-11.121). Moreover, such

"expeditions" mighthave been launched fiom the Nigerian naval base of Jamestowna ,s the

Respondent appearsto acknowledgein its Rejoinder(Rejoinderof Nigeria,p. 118, para.3.131,and

p. 250, para. 10.90). However, until December 1993, the actuaflacts amounted neitherto an invasionnorto an occupation. They represented temporary infiltrations, which were prejudictial

Cameroon buthad nolasting effects.

10.The incidentsat Jabane in 1990 and 1991offer a clear illustrationof this. On the map

projected behind me,youcan seetheBakassi Peninsula depictedin a somewhat faded colour - for

which 1apologize. Mr.Bodo will indicatewiththe pointer the location of Jabane.Thismap isalso

found inthejudges' folders,1believeas document No.110.

11.From December1990,alarminginformationbeganto reach the Cameroonian authorities

that theNigerian Navyhadmoved into positionat Jabane, raised the Nigerian flag over the village,

and statedthat it intendedto remain there permanently (Memorialf Cameroon, Ann. MC 307).In

reaction to this, Cameroon carried out patrolsand site visits over the following year, both to

ascertainwhatthe situationwas and, if need be,to respond to it. It didsowithchefficiency that

by April1991 the Nigerian Navyhad left the place (Ann.MC 308), subsequently making only

sporadicappearances there (Ann.MC3 11).

12. Conversely, there can be no doubt that Cameroon maintaineda well-established

sub-prefectureat Idabato,with al1the administrative, militaryand policeservicesattachingto that.

Moreover, it was from Idabato- pointed out nowon the projected map- that many ofthe

Nigerian infiltrationswereobserved and reported (OCDRA , nn.3).

13. The existence of this administrativeunit is corroboratedby al1the relevant itemsof

evidenceinthe dossier.

14.Among the annexes producedby Cameroon- annexes to the written pleadings - the
049
Court willfind the minutesof a workshop held at Idabatoon 18March 1989,for seniorofficialsin

the Cameroonian public services. One subject covereidnparticularwasthe need to strengthenthe

building housing the border police post. Thus there was indeed a border police post at Idabato.

And it wasCameroonian(ReplyofCameroon, Ann. RC180).

15.TheCourt willalso find, this timein the annexes producedby Ouropponents,a report by

the Nigerian Chief of Naval Staff, dated5 March 1990. This senior officer notedin his report:

"[tlhe presenceof Cameroonian military installations aroudtabongWest"(RejoinderofNigeria,

Ann. NR 24). "Atabong West"is thenameusedby theNigerians forIdabato. 16. Everything thereforeconfims that Cameroondid maintainpermanent military structures

at Idabato. And indeed maintainedthem well before 1989, well beforethe end of the 1980s.

Nigeriaitself acknowledges this, quotingin its Counter-Memorial a Nigerian police report whicht

doesnot hesitateto describeas "detailedand objective". This report noted, backin 1976,that "the

Cameroonian Navy maintains aunit based at Atabong" (Counter-Memorialof Nigeria, p.273,

para.10.171).

17. On this point, indeed, the Nigerianreportmakes no mistake. It mayeven be addedthat

the Cameroonian armed forces,who had long been present in Idabato, generally carried out

missionsof surveillance and intelligence. You will find annexedto the writtenpleadings areport

of27April 1991,addressed bythe Idabato unit to thecentralauthorities, whichis, 1believe, agood

illustration of this (OCDR,Ann.3).

18. Mr. President, the military situatiin the Bakassi Peninsula is now totally different,

owing to the sudden, massive landingof heavily armed Nigerian forces fromDecember1993

onwards. Thereportsproducedby Cameroonestablishthat:

- On 28 December 1993,three Nigerian warships, with over1,000troops on board, constantly

patrolled the waters around Jabane, whilst military engineerwsere busy on land constmcting

barracksinhardmaterials (Memorialof Cameroon,Ann. MC329);

- Twodayslater,500troopslandedat Jabane,underair cover (Ann. MC 328);

- On 4 January 1994, the NigerianNavy proceeded from Jabane to Diarnond, establishing a

secondbridgeheadthere. Itrapidlytook up position close tothe Cameroonian militarypost at

Idabato, andtumed heavyartilleryfireuponit (Ann. MC331).

19. Cameroon irnmediately reinforced its positions in Bakassi, progressivelysetting up a

defence system inthe peninsula,with two operational headquarters,one at Isangele(now pointed

out onthe map and called COM GON),and the otherat Idabato,COMGOS. The samemap is to

befoundin the judges' folderas documentNo. 111.

20. The Idabato headquarters post wasfully operational from 4 January1994onwards. It

thencomprised a totalof 90men, whose missionwasto defendthe south of the peninsula (OCDR,

Ann. 5). And 1domean"defend". Indeed, a messagewas immediately sentto the post,instructing the unit to hold its positions and no more (Memorial of Cameroon, Ann. MC 331 and OCDR,

Ann. 4).

(b) Nigeria hasnot demonstratedthatits military intervention wasfounded on considerations
of publicorder

21. 1reiterate, Nigeria acknowledges thatit sent massive numbers of troops to Bakassi in

December 1993. However,and this is the second point of disagreement,it endeavours to justifi

this by claimingthat it did so on the groundsof containing clashes betweentwo Nigerian federal

states which claimed competing rights over Bakassi. And Nigeria emphatically states that

Cameroonwastold of this.

22.It does not draw any particular legal conclusionfromthis. However, such affirmations

might be regarded in thesame light as Nigeria's astonishing"defence" of a "reasonable" military

invasion founded on "honest belief", a defence which has already been rebutted by my fiiend

Professor Olivier Corten.

23. Three observations,of a factualnature, complementinghis statementare calledfor here.

24. Thefirst is thatno document submittedby Nigeria mentions imminentinterna1clashes in

Nigeria in 1993.

25. The second observation isthat Cameroon knew of Nigeria's "grounds" only aftenvards,

not beforehand. It was not warned in advance about the military operation. Nor was such

intervention solicited.

051 26. On the other hand, and this,Mr.President, is my third observation, Nigeria cannotclaim

to have beenunaware thatthe interventionof itstroops in Bakassi would beseen by Cameroon asa

serious infiingement of its sovereignty. The Nigerian Govemment had available to it, inter alia,

two unambiguous officia1documents. They weretwo extremely clear Notesof protest, one dated

5 May 1993 (Memorial of Cameroon, Ann.MC 325), and the other 23June of the same year

(Ann. MC 326).

27. In the second Note, on which1 shall concentrate here, Cameroon vigorously denounced

the deploymentof Nigeriantroops ontheborder. The troopswerenot actually in the peninsula,but

were at the gates. At that time already, Cameroon expressedits concems at an officia1level,

describing theevents asserious,unfriendly acts. 28. Nigeria could therefore notbe unawarethat landing severalhundred armed men on the

peninsula, withoutwaming, wouldbe regardedas a hostileactby Cameroon. Cameroon's Noteof

protest of 4 January 1994 (Ann. MC328),which calledthe invasion an actof war, could not have

comeas a surpriseto Nigeria,whose argument of"honestbelief' thus lacks foundation, toSaythe

least.Al1the more so,in that, on the ground, itwasthe Nigeriantroops which, in February 1994,

opened fire.

(c)It was Nigerian, not Camerooniant,roopswhichinitiated hostilities

29. Mr.President, Members ofthe Court,Nigeriawouldhaveus believethat the hundredsof

men landed in Cameroonian territoryromthe end of 1993onwards obedientlystayedput, whilst

Cameroon,it is claimed, was endeavouringto dislodgethem by force, inparticular on 14, 18 and

19February 1994(Rejoinder of Nigeria,p. 657).

30. This is Ourthird point of disagreement,and, here again, Cameroon's contentions are

diametricallyopposedto thoseof the other Party.

31. The Court will first observethat Nigeria has advanced only one item of evidence

justifying its position, namely a compilatiof comments publishedin the Carneroonian media

conceming the events in Bakassi, a compilation undertaken bythe Agence France Presse in

March 1994 (OCDR,Ann. 12). In itsown words, Nigeria's arguments hereare "on that basis

O 5 2 aloney'(Counter-Memorial of Nigeria, p.64, para. 24.88). Yet there is absolutely nothinthe

documentto confirmits allegations.

32. Moreover, the allegationslackcredibility asmuch asthey lacktruth. Nigeria'sassertions

conceming theseeventshavevaried, dependingon circumstances. The spokesmanfor theNigerian

Ministry of Defence, avery senior figure, GeneralFredChijuka, issued nothinglessan a formal

denial,on 21February 1994,of the veryexistenceof hostilities (OCDR,Ann.6). They hadnever

takenplace. Todaythe positionis different. The Courtwill formits ownjudgment.

33. Cameroon, for its part, has provided consistent evidence thatit was Nigerian forces

which initiated hostilitiesthe reverse. 34. Without repeating Our previous statements (Memorial ofCameroon, pp. 570-571,

paras.6.30-6.34), we can refer to a messagesent to the Cameroonian troopsat Idabato on

4 January 1994,orderingthem to openfireonly ifattacked(OCDR,Ann.4).

35. There is also the series of reports from theofficers in charge of the Idabato and

Ekondo-Titi posts (Memorial of Cameroon A,nn.MC 339),reportingthe Nigerian attacks.Whatis

apparentfrom these reports, in particular,is that on 18Februarythe attack on Kombo a Janea was

repulsed, whereasAkwaand Mbenmong fellthenext day.

36. Theplaces 1have mentionedare nowbeing indicated on the map, which is found inthe

judges' folderas document No. 12.

II.TheeventsofFebruary 1996

37. 1now cometo the eventsof February1996,in other words,two years after the events1

have beenrefemng to.

38. Nigeria accepts that therewas fighting. But maintains that it was triggered by

Cameroonian naval forces from outside Bakassi, and claims that Nigeriawas merely defending

positions already held(CR9614,pp. 82-90, SirArthur Watts; Rejoinder of Nigeria,pp. 688-693,

paras. 158-168).

39. In supportof this claim, Nigeriaeswhat is essentiallyan assumption, which1shall

show tobe erroneous. 1shallthengo onto describethe eventsof February 1996ingreaterdetail.

05 3 (a)Nigeria'serroneousassumption

40. Nigeria's initial allegationstiil the same: Cameroon, in 1996 this time, held no

military position in the peninsula, whereas Nigeria occupiedal1 of it (CR9613, pp. 13, 66;

CR 9614, p. 87, etc.). This assumption is fiindamental for Our opponents, determining the

credibility of their argumentas ites. Moreover, this iswhy, during their oral argumenton

provisional measures,Nigeria's Agent and counsel statedit, repeated it, underlined it,rammedit

home.

41. But Nigeria did noteven bother to try and prop up itsstatements with any proof.

Nothing, Members of the Court, onthese famousNigerian militarypositions, eitherin 1996,or at

othertimes either. 42. Whatis acknowledged,onthe otherhand,is the factthat Cameroonhad a military postat

Idabato. 1 have already shown this, but would add that this post remained a stronghold of

Cameroon until 1996.It housed "COM GOS", the headquartersof operational group south. And

Cameroon was countingon it, amongother things,to containthe advanceof the Nigerian forces.

And it did so for two years. Moreover, the annexes to the writtenpleadings contain reports

indicating that, fiom 1994 to 1995, it was here that the troops were norrnally relieved

(Anns. OCDR 8 andOCDR9).

43. In fact, Cameroon thought thatthe situation wouldremain stable until theivery of

your judgrnent on the merits. But, from August1995, the Nigerians beganto test Cameroon's

reactionsbyvariousmanoeuvres (Anns.OCDR 13and OCDR 14).Andthere was indeedan attack

on Idabato,on 24 September 1995. The Cameroonian troopswere merely asked tohold their

ground (Ann.OCDR 15).

44.Thiswasthemilitary situation onthe ground prior to 3 February1996.

(b) Thedevelopmentofthefighting

45. 1 now come to the fighting. Nigeria's versionof how it developed is essentially as

follows: on3 February1996,Cameroonian troopsfrom Isangeleare claimedto haveinfiltratedthe

creeks andheavilyshelledNigerian positions at Atabong. Theeas anassault,but,il1prepared,it

O5 4
was repulsed. Having suffered a serious defeat, the Cameroonian troops, outof pique, then

allegedly attacked al1the villages throughwhich they passed as they pulled back to Isangele

(CR 9614,pp. 82-90,SirArthur Watts).

46.This accountis partly basedon three documents. Theyare themilitary communications,

which the Court has already considereduringNigeria's oral argument on provisional measures,

and which are claimed toshow howthe Cameroonians allegedly launchedthe atta~k(Rejoinderof

Nigeria, Anns.NR 196-198).

47. These documents,as the Court will no doubt reca,annot be readily understood. They

containnumerous abbreviations,andthe termsused are perhapseven coded. In any case,they are

not "seeminglyclear"(RejoinderofNigeria,p. 690,para. 161),and 1doubtwhether anyonecould

understandwhat they may mean without thorough explanations. Cameroon has presentedits own explanations, which confirmits own version of the facts, and wholly tally with the strategic and

military situationhen existing ontheground (Replyof Cameroon, p. 534,paras 11.158-11.161).

48. By contrast, the story which Nigeria claims that they tell isfrankly extraordinary. It is

the story of a Nigerian military post being heavily shelled, while a market full of civilians also

comes under mortar fire. The post is heavily armed andhas adequate manpower. But it does

nothing. Absolutely nothing for at least five-and-a-half hours. Civilians perish certainly.

Installations are hit,soldierswounded. But it waits for preciselytwo hours and thirty-five minutes

after the explosion of the first shells before asking its senior commanderswhat to do, making it

quite clear- curiouser and curiouser- that thisrequest should be treated "as most urgent". But

it continues to do nothing for three hours. Onlythen do the senior commanders apparently issue

their order: maintainyourpositions. Just telling this storyshows that it makes no sense.

49. Other documentsrelate the true sequenceof events.

50.1 shall revert only verybriefly to a testimony already referredto in the Reply, whichis

that of Lieutenant-Commander Jean-Pierre Meloupou, whowas commanding the Idabato unit at

the time of the Nigerian attack (Reply of Cameroon, pp. 529-530, para. 11.146). It requires

explanation on one point. Shortly before noon on 3 February, the day of the attack,

Lieutenant-Commander Jean-Pierre Meloupou had ordered some of his soldiers to relax on the

0 5 5 beach as a sign of reduced tension. Nigeriafindsthis idea manifestly unconvincing (Rejoinder of

Nigeria, p. 693, para. 168). On the contras., it is perfectly plausible when placed in context. The

Nigerian army had since 1994 been positioned within firing range of the post at Idabato,

headquartersof COM GOS, commanded by Lieutenant-Commander Meloupou.As time passed, a

certain routine developed. Yet,during the night of 2-3 Febniary, the atrnosphere was unusually

tense owing to the repeated infiltrations of Nigerian scouts in canoes and their capture by the

Cameroonians. The commander of the unit at Idabato therefore wanted the situation not to

deteriorate, and above al1wanted the Nigerians notto imagine that he was preparing an attackin

retaliation forthe infiltrations by scouts.orderswere categorical: maintain their positions and

do nothing else. He was well awarethat the Nigerian soldiers were observing the activity of his

men from a distance, so ordered someof them to behave asthough the tension had lessened andto

accompany himto relaxon the beach,in other words,simplysit on the sand andhavea beer. 51.Theattack beganjust after. The commanderof operational groupsouthat Idabato (COM

GOS) says this in a message to COM DELTA, the regional military headquarters, situatedat

Limbé. 1shallread this message, decoding as necessarymakeit comprehensible.

"Enemy attack today at 1200 hours. Counter-attack by us in progress.
Provisional toll on Our side: several wounded, some very seriously. Fighting
continues. Enemy toll: enemyvesse1Jonathan on fire. Requestreinforcements
seconddegree, airliftfor seriouslywounded." (Ann.OCDR 18.)

52. Theresistanceofthe post at Idabato did notlast long. What thenhappens emergesfrom

the account of a message sent by the Nigerian commandpost at Jabane to its superiors on

4 February, interceptedand decoded by Cameroon (Ann.OCDR21). Here it is stated that, on

4 February, at 00.25, the Cameroonian position at Idabato haallen and that prisoners had been

taken. Cameroon confirmsthat the post commandedby Lieutenant-CommanderMeloupouhad in

fact been overwhelmedby the force of the Nigerian attack,and was no longer able to offer the

slightest resistance. Lieutenant-CommanderMeloupouand the soldiers fiom the post who were

stillable-bodiedthen choseto jump into the creeks ratherthan fa11into enemy hands. They were

rescued by Cameroonian forces somedays later, in a very poor state of health (Ann.OCDR23).

Conversely, theNigeriantroops werein "goodhealth", accordingto the message1referredto a few

momentsago(Ann. OCDR21). It wasalso learned that theNigerian command postat Jabanewas

thenurgentlyawaitingreinforcements, forwhat itcalled"thefinal assault" (ibid.).

53. Somuch for Idabato. But otherplacesheld by Cameroonianforces fell, such as Uzama

andKomboaJanea (Anns. RC2 11and OCDR24), until on 8Febmary, a messageintercepted and

decodedby Carneroon orderedthe Nigerian forcesto "cease hostilities", and to "return fire only if

the enemy opens firefirst" (Ann. OCDR 25). A contrario, it is apparent that, until this date, the

Nigerian soldiershad beeninstructedto open fire first. Mr.Bodowill now showyou onthe screen

the line of theNigerian positions afterthe attacks; this is the second line,the one furthestto

theeast intheBakassi Peninsula.

54. The true facts thus bear no relation to the accountNigeria gave of them during the

preliminary rneasuresphase. This attack of 3 February, allegedly launched by Cameroon fiom

Isangele,afteran infiltration through the cre(CR 9614,p.84), is pure invention. This story of

Cameroonian soldiers who, after suffering an unexpected defeat, had allegedly pulled back, attacking al1 the Nigerian villages in their path, as though seekingto exact savage revenge

(CR 9614,p. 87), is pure invention. The truth,Mr. President,is that the Camerooniansoldierswho

managed to escapewere not able to attackanyone, because they jumped into the water, solely

intentonsurviving without fallinginto enemyhands.

(ii) LakeChad
55.1now come to LakeChad. The essentialfacton which Cameroon relies herein calling

upon the Court to recognizethat Nigeria incurred responsibilityis that Nigeria invaded and

militarily occupiedpart of Cameroon's territoryin LakeChad 15 years ago, as my eminent

colleague, Professor Jean-PierrCot, so capablydemonstrated lastTuesday (CR200212,p. 38).

56. Cameroon7s Reply was extremely clear in this respect (Reply of Cameroon,

paras. 11.165-11.170) but, asin connection with the eventsin Bakassi moreover, Nigeriafocuses

the discussionin its Rejoinderoncertainincidents,whichit seeksto demonstrateare not proven,or

that theyare so trivialthat theycannot engageits responsibility (Rejoinderof Nigeria, pp.60-665

and 701-708).

57. There isno need to go over this discussion again at this stage in the proceedings. Not

only because at the end of two rounds of written pleadings the Court probably has enough

informationto make a determination, butalsobecausethe essentialsof the issuehave already been

addressed.

58.From Cameroon'spoint of view, the essential point hereis to ascertain whether Nigeria

militarily occupiedand isstill militarily occupyingpartofits territory inLakead.

59.Nigeria acknowledgesthat it is occupying thetemtory in question: "therelevantareasin

Lake Chad. ..vested . ..and still vests, in Nigeria, which occupies and administersthem as of

right" (Rejoinderof Nigeria, p. 658; see also Counter-Memorialof Nigeria, Vol. III, p.632,

para. 24.19).

60. Mr. President, Membersof the Court,the "relevant areas" to which Nigeria refers are

villages which we can see on themap nowbeing shown and which you will find in the folderunder

reference No. 13. It can clearly be seen that almost al1of them are in Cameroon's territory-

regardless, moreover,of the linefinally adopted. Nigeria acknowledges thai tt occupiesthem and administersthem. Theessential facton which Cameroon basesits claimwith respectto LakeChad

istherefore established.

61.Mr. President,Membersof the Court, thankyou for yourkindattention. May 1now ask

you to give the floor to Professor Christian Tomuschat,who is going to speakto you about

Nigeria'sfailure to complywith theCourt's Orderof 15March 1996.

The PRESIDENT: Thank you, Professor Thouvenin. 1 now give the floor to Professor

ChristianTomuschat.

Mr.TOMUSCHAT:

III.RESPONSIBILITY

11.Nigeria'sresponsibiliîy

(d) Nigeria'sfailure to compiy withthe Court'sOrderof 15March 1996indicatingprovisional
measures

Mr.President,distinguished Membersofthe Court.

1. The Order issued by the Court on 15March 1996'~for the indicationof provisional

measuresremains oneof the key elementsin the legal framework of this dispute. The first three

operativeparagraphsofthe Orderare particularly important,namely the instructionto both Parties

thatthey

"ensurethat no action of anykind, andparticularlyno action by their armedforces, is
taken which mightprejudice the rights of the otherin respect of whateverjudgment
the Court may render in the case, or which might aggravate or extend the dispute

before it" (para. 1);

that they cease al1hostilities in accordancewiththe agreement reachedbetweenthe Ministers for

ForeignAffairs in Karaon 17February 1996 (para. 2); that they ensurethat thepresence of their

"armed forces in the Bakassi Peninsula does not extend beyond the positionsin which they were

situatedprior to 3 February1996"(para.3). Cameroon accuses Nigeria of failure to complywith

thesekeyelementsoftheOrderof 15March 1996.

2. It should be recalled thatthe Order in question contained two additional paragraphi sn

whichthe Court orderedthe Partiesto "take al1necessary stepsto conserve evidence relevant to the

--

72~.~.Reports1996,p.13. present casewithin the disputed area" (para.4), and to lend "every assistanceto the fact-finding

mission which the Secretary-General of the United Nationh sas proposed to send to the Bakassi

Peninsula" (para.5). Onthese two points also,Nigeria has shownno willingnessto conductitself

in full accordancewiththe Court'sdecision.

3. Following theCourt's Judgrnentin the LaGrand case of 27June 2001, it is no longer

necessaryto seekto demonstrate that the Court'sOrdersindicating provisional measuresdo in fact

constitute decisions creating genuinelegal obligations on the partiesto which they are addressed

(see paras.92 to 116 of the Judgment). On the basis of a careful examination of the text of

Article41 of the Statute,of its objectandpurpose,and of the preparatory work,the Courtreached

the conclusion that "orders on provisional measures under Article41 have binding effect"

(para. 109). Thisis not, moreover,an "invention"of the Court, whichwould applyonlyprofitturo,

i,e., fiom 27June 2001. The Court didno morethan interpretthe law,as it is requiredto do in the

dischargeof its duties. Cameroon considers thad tebatenow closed. It will therefore refiain fiom

demonstratingonce again that the interpretation adoptedby the Courtwas the correct one. That

wouldbe tantamountto seeking toreinventthewheel.

4. Another consequenceof the LaGrandJudgrnent isthat the binding force of a decision

under Article41 of the Statute is not affected by somewhat"weak" language. Even if the Court

opted fortheword "should" in indicating provisional measuresi,t rendered a genuine decisionand

did not merely address a recommendationto the parties. Moreover,in the LaGrand case the

English text of the Order of 3 March 1999prohibiting the execution of WalterLaGrandused the

term "sho~ld"'~,but this did not prevent the Courftromattributingto the Order the full legalforce

of an actbinding onthe party to which it was addressed. In Ourcase,it will be noted in particular

that the Frenchtext of the Order of 15March 1996is draftedin much more categorical language

than the English text,stating in peremptory indicativemood that both parties should ensure

("veillentà'y that certain actions are nottaken(this languageis used in paragraphs 1and 3) or that

they should observe ("se conforment")certain instrumentsgoveming their mutual relations (this

languageisused in paragraph 2). It is thereforebeyond doubtthat the Orderproduced legal effects

""~he United Statesof America should takeal1measures at its disposal to ensure that Walter LaGrand is not
executed pendingthe finaldecisionin these pro..." (para.29). 7. Cameroondid not content itselfwith infonningthe mediaand the publicat large, butalso

considered it essential to bring these clashes to the attention of the competent United Nations

bodies. Thus, its Minister forForeign Affairs senta letter to the Security Council (ibid., Ann.12,

p. 49). This letterwas writtenon 30 April 1996,i.e.,only a few days afier the clashestook place.

It gives a detailed account of events, referring to the presence in the area of 10,000Nigerian

infantrymen, 2,300of them in Cameroonian territory,3,000 on theborder and 4,000 in a state of
Q 6 1

alertinCalabar,with the tragic result for Cameroon thatthese forceshad succeededin occupying

the village of Benkoro, inflictinglosses of some 120to 130men. It is obvious that Cameroon

would not have engagedin such a campaign of denunciationof the Nigerian operationsif it had

itself initiated thefighting. At theetime, it shouldbe emphasized that,at the actual time of

these hostilities, Nigeria maintaineda total silence. It is for the Court to consider this lack of

reaction on theRespondent'spart, andto draw thenecessary conclusions.

8. To supplement its informationcampaign,Cameroon ultimatelyturnedto the Court. Ina

letter of 2 August1996, its Agent formally informedthe Registrar of the clashes and their

unfortunate consequencesforCameroon.

9. Nigeria responds to Cameroon's allegationsin paragraphs 171 to 174 of its Rejoinder

(Vol. III, pp. 694-696). A carefulreading of that response showsthat it is basedon a strenuous

effort to draw together the most disparate arguments. Firstofall, Nigeria puts forward the

well-rehearsed argument that there isno "independent confirmation of any fact" (ibid.,

para. 172 fi)).That is quite true, but who could have provided independent testimony through

first-handobservationof the fighting? It has to be saidvery clearlythat in a situation likethis the

available evidenceis necessarily ofan indirect nature: one is obliged to rely on circumstantial

evidence, and thatevidencemilitatesin favourofthe view defendedby Cameroon.

10.Nigeria'ssecond lineof defencefor Nigeriaconsists in a claim thatthe Nigerianattacks

didindeed take place,but thatCameroonhas not succeededin establishingthatthey "were camed

out without provocation"(ibid., para. 172(c)). In the face of this claim, one might askwhat

advantage Camerooncouldhavegainedfrom "provoking"Nigeria,given the situationof inequality

between a country with a population of 120million inhabitantsand a substantial militaryforce which has effectively been able totake possession of a major partof the Bakassi Peninsula,and a

neighbourwith only 13million inhabitants.

11.Finally, it will be observedthat,accordingto Nigeria'sassertions, the Nigerian Minister

I Q 6 2 for Foreign Affairssent a letterof protestto his Camerooniancounterparton2 1June 199674!In

other words,two monthsafterthe attacks claimedby Nigeriato have been launchedby Carneroon

againstthe Nigerian positionsuringthe periodfiom 2 1Aprilto 1May 1996,andmore thanseven

weeks afier Cameroonhad complainedto the United Nations Security Council, Nigeria suddenly

discoveredthat it had been attackedby theCameroonianmed forces! A11this is barely credible.

It is a total distortionof the facts, which Cameroonsnot hesitate to characterizeas such. A

State falsely accused of havinglaunched a military attack would have protested at once,

denouncing its adversary's false position.igeria did no such thing. It reacted only when it

realizedthat its silencecouldin fact be interpretedto its disadvantage. It was atthat point in time

that it putforwardits allegationsthat thePartyreally guiltyof the armed incidentswas Cameroon.

The reality of the acts which Cameroon imputesto Nigeria cannotbe denied. The Cameroonian

positions were attackedby Nigerian forcesuring the second half ofthe month of April 1996,in

violation oftherderissuedbythe Courtonlya few weeks earlier.

12.Cameroondoesnotintend,in thisaddress,togo back overal1the other military incidents

which have been describedin its Memorandumof April 1997 @p.4-8) and in its observationsby

way of rejoinderto Nigeria'scounter-claims(see Ann.OCDR 38), where the attacks launchedby

Nigeria in Septemberand December1996are documented. It will confine itself to drawingthe

Court's attentionto a statement by GeneralAbacha, President of Nigeria, broadcastby Radio

Calabaron 28 May 1996,in whichhe saidthat the Nigeriantroops engagedat Bakassi wereto be

reinforced byelite forces (Replyof Cameroon (translation),Vol. III (Ann. RC1),Ann.32, p.78).

This statement strikes an annexationist tone regrettably at odds with the Court's Order.

Reinforcement ofthe troops stationedin Bakassi is an operation manifestly inconsistentwith the

Court's instructions. While Cameroon is obliged franklyto admit that it is not in a position to

provide positive proof, given its limitedmeans of reconnaissance,that the impressivenumber of

74~ounter-~ernorialof Nigeria,Ann. 361. troops already deployedin Bakassi (see letter to the Security Councilof 30April 1996,above,

para.7) was increased followingthat statement, the Court will notethat Nigeria has not denied
0-6 3

Cameroon's allegation. Since the President of Nigeria was at the same time the

Commander-in-Chiefof the armed forces,it may beassumed that his words were translatedinto

action.

13.All the issues of facttoday disputedby Nigeriacould easilyhave been settled if Nigeria

had agreed to the establishmentof a fact-findingmissionas proposedby the Secretary-Generalof

the UnitedNations. That fact-finding mission occupied an importaptlace in the Court'sder of

15March1996. Cameroon'sresponsetheretowas positive. Inseveralcommunicationsit stressed

the need to implement theCourt's proposal. In a letter of 12April 1996 (Reply of Cameroon,

Vol.III (Ann.RC1), Ann.4, p. 32), the President of Cameroon informed the Presidentof the

Security Council ofhis full agreementto a fact-finding mission, whoseterms of referencewould

include,inte alia,

"- the situation of thesuccessivemilitary positions ofeach of the Parties since the
seisinofthe Court; and

- the generalstateofaffairs resultingfiom thearmedincidents".

Unfortunately,owingto Nigeria'sreluctance,very littlecame of al1this. The PresidentofNigeria,

GeneralAbacha, accepted theidea of sucha mission "in princip1e"- a formula apparentlyrnuch

favouredby those in charge of that country's affairs,as Cameroonhas leamed in the courseof

these proceedings. In perfectharmony with this acceptance"in principle", Nigeria subsequently

sought to impose tight restrictions onthe terms of reference for the mission. In aetterto the

President of the Security Council dated 24 May 1996 (see Reply of Cameroon (Translation),

Vol.III (Ann.RC1),Ann.29, p.174), the Secretary-Generalof the United Nations referred to a

letter from the Nigerian Govemment which announcedthat it would "shortly" be addressingto

himselfand to the Security Councila "detailedreply"to the proposals putnvard. However, that

detailedreply eithereverarrivedor recommended lowering thelevelof interventionbytheUnited

Nations (for more details on the good offices mission,see Reply of Cameroon (Translation),

Vol.III, pp. 8-9). In any event,the missionwas eventuallygiven a clearly inadequate mandate,

againstthe original wishesof Cameroon. Havingbeenconceivedby Cameroonas an appropriate instrumentfor a seriousinvestigationof the facts, it was transformedinto a good offices mission

with thetask of

"gathering informationand formulating suggestionscapable of inducing the two
parties to adopt constructive measureswhich could promote the creation of an
atmosphereofmutual confidence; and

(3) examiningwith the parties concreteand specific measures designedto reduce
tension betweenthemandto prevent a deteriorationof the situationinthe area".

Thesetermsof referenceare certainlynot devoidof al1value,but the report that emergedtherefiom

had noreal impact whatever. In any event,it was impossiblefor the members ofthe good offices

missionto verify the situationonthe groundin accordancewith Cameroon'swish. In their report,

they expressed theirviews in somewhatvagueterms in a single paragraph, paragraph 19, onthe

militarysituationinthe Bakassi Peninsula.

14.In this connection, Cameroonwouldalso draw attention to paragraph 4 of the operative

part of the CourtOrderof 15March 1996,in which the two Parties were called upon to take "al1

necessarysteps to conserve evidencerelevant tothe presentcase". On account of the occupationof

the Cameroonian administrative centres in Bakassi, Cameroon finds itselfunable,to the extentthat

it has no access to the documentson the premisesof the competent authorities there,to provethe

effective reality of its governmental presence. Cameroon has been further informed that a

boundarypillar fiomthe German erawas destroyedin the region of Typsan and thatthe Nigerians

dug up boundarypillarNo. 103inthe Akwayasector (Ann.MC, p. 56). Theseare clear violations

of the Court'sOrder.

15.Amongthe post-1996events, Cameroon notes theattack byNigerian troopson Sangre in

the Bakassi Peninsula, an attack which claimedseven Cameroonian lives (see CR9813,

5 March1998,p. 13,para. 20). Nigeria did notdispute that this incidenttook place (see CR 9815,

9 March1998,p. 13,para. 8),but confineditselfto arguingthat it was completelyirrelevant. That

is not the case. Sangreis clearlyto the east ofthe dividingline betweenthe armed forces of the

two countries,whichconstituted thebasis ofthe Court's Order of 15March 1996.This factalone i

shows once again that Nigeria has persisted in its annexationist intentions without regard fotrhe

measuresordered by the Court. 16. Another attack against the Cameroonian positioninthe localityof Sangretookplace on

19May 2001, onthe eveof Cameroon's national holiday. Apartfrom substantialmaterialdamage,

the Cameroonianforcessustainedthe lossof one soldier, withseveralseriously wounded. From15

to 30 June 2001,Nigerianforces carriedout other attacks, notably in thelocalities of Itabuna and

Okonte, and launched a nwnber of offensives againstthe entireCameroonianforce, using mortars,

machineguns,small arms andarmedpatrols on foot orin motorboats. Thoseattacksresultedinthe

loss of three Cameroonian soldiers and several seriously wounded (see communication of

5 September 2001to the Registrarof the Court). Aglance at the sketch which has already been

projectedissufficientto showthat their aim was to pushthe Cameroonian forces outofthe Bakassi

Peninsula. 1repeat,this is shownin sketchNo. 112.

17.Apartfrom the military clashes,the responsibility forwhich lies with Nigeria, arange of

additional facts demonstrates beyond al1 question that Nigeriaalso failed to comply with the

Court'sOrderin other areas. 1am refening to a numberof legalmeasurestaken by Nigeriawith a

view to strengthening itsde facto position by presenting the Court and Cameroonwith a fait

accompli. Nigeria cannotdeny that these steps were taken, and it did not in fact do so in its

Rejoinder. Byits actions,Nigeria has violated the first pointof the Court'sOrder, namelythat it

should refrain fromany actionwhichmightprejudicethe rightsof Cameroon.

18. The first of the measures in question was the establishmentof the municipality of

Bakassi, in October 1996. The Nigenan newspaper The Guardian reported inits 1October 1996

edition that the Govemmenthad created six new States and 183"councils", or municipalities

(Replyof Cameroon, Vol. III(Ann. RC1),Ann. 43,p. 241). In the edition of3 October,two days

later, it is confirmed that Bakassi is one of the new municipalities (ibid.,p. 245). In this

connection,thenewspapergives thefollowing commentary:

"The govemment's decision to create a separate council for Bakassi is
interpreted as a tactical step to move development nearer and create asense of
belongingforthe indigenes who are constantly harassedby Cameroonian gendarmes."

An official list of the newmunicipalitieswas published on5 December 1996by the Daily Sketch

newspaper (ibid.,Ann. 50,p. 285). Thislist confirmsthat Bakassihad become anewmunicipality

within Cross River State. 19.There canbe no doubt thatthismeasure,the creationof a new territorial entityunderthe

name"Bakassi", blatantlyviolatesthe Court'sOrderof 15March 1996. Nigeria was bound by the
Q 6 6
termsof operative paragraph1 of the Orderto refrain from any action which might prejudice the

rights of Cameroon. But by classifjing Bakassi asa municipality formingpart of Cross River

State,Nigeria used an act of govemment to give expression to its territorial claims to Bakassi.

Inevitably,as willbe shown subsequently, thisdecisionproduced consequences. UnderNigerian

law, once a municipality exists, an administratihas to be organized, elections fora municipal

councilhave tobeheld, and so on. Cameroon doesnot disputeNigeria's procedural right tdefend

itsargumentthat BakassiinfactfallsunderNigerian sovereignty.Beforethis Court, Nigeriais free

to presentany argumentsit deemsfit. However, takingconcrete measuresin Bakassi tostrengthen

its hold on that part of the peninsulawhich it has claimedby force is quite another matter. By

formallybindingthe resident populationto the political system ofCrossRiver State,Nigeria seeks

to establish a fait accompli which it would be difficult to undo even after its failure in these

proceedings. It isimposingon the population an obligationof loyalty towardsits authorities which

is totally irreconcilablewith the loyalty owed by those same inhabitants to the Cameroonian

authorities.

20. Clearly,Nigeria cannot, by means of unilateral acts, extinguish Cameroon's righttso

Bakassi under internationallaw deriving fromthe Treaty of 11March 1913.No Statecan release

itselffrom its international obligationssimplyby violatingthem. Nevertheless,and even thoughit

is incapableof changing thesituationwithregard to thesubstanceofthe dispute,the creation of the

municipality of Bakassi isa decision which seriously prejudicesCameroon7srights, since it will

substantiallyhamperthe defacto reintegration oftheBakassi Peninsula into the political system of

Cameroon afterthiscasehas been concludedby the finaljudgmentofthe Court.

21.At thesametime, the creationofthe municipalityof Bakassiin October 1996undeniably

establishes that Bakassi fellnder Nigerian domination onlyas a result of the invasion of the

i
peninsula, which beganin December 1993and reachedits climaxin February 1994. It would be

utterlyincomprehensibleif a portion ofterritory forming partofthe area of the peninsula currently

occupiedby Nigeriashould lack its own administrative organizationand be attached toa distant

O 6 7 entityonthe far bankof the Akwayafe. Itwas onlyafterthe invasion,onceNigeriahad established its defacto authority, thatit considered itself duty-boundto introduce an administrativestructure

enablingthe local population to liveinfictitiousnormalityunder the auspices of the Cross River

State authorities andthe federal authorities.t was precisely thewell-known nineteenth century

mode1of colonization thatwasfollowed. First, the armed forces amved, on the pretext that itwas

necessary to protectthe rights and interestsof Nigerians livingin Bakassi. The next stage was to

set up a civilian administrationin orderto show that the restorationof normalitywas an established

fact, and inorder to be able to argue that Bakassi had alwaysbeen inhabited by Nigerians, as

reflected in the existing administrative structures.In ater of protest sent to the Nigerian High

Commission in Yaoundé in 1997, Cameroon's Minister for Foreign Affairs expresseh dis

condemnationof theregistration ofthe inhabitants of BakassiinNigeria'selectoral registers.

22. Following this first unlawful measure and remaining committed to its annexationist

logic,Nigeriaorganizedmunicipal electionson 5 and 6 December1998in the part of the Bakassi

Peninsula whichit had occupied. Cameroon denounced this fiesh violation of its sovereignrights

in a letterfrom its Ministerof Statefor Foreign Affairs datedDecember 1998, addressedto the

United NationsSecurity Council(doc. SI199811 159, 11 December1998). It is obviousthat, here

again, the same considerations applyas those whereby it was shown that the establishmentof the

municipalityof Bakassi was contraryto the Court's Orderof 15March 1996. Once again,Nigeria

has soughtto create a fait accompli by strengthening thede facto incorporation of Bakassi in its

national territory. Thus,ina Noteof 15January 1999(No.C.28/99),Nigeriaassertedin Io@ tones

that the elections, "being a recognised sovereiact of the Nigerian stat... can thereforenot be

regarded as a violation of the interim measures issueb dy the InternationalCourt of Justice on

15March, 1996".

23. This assertion totally begsthe question. It in no senserepresents a reply to Cameroon's

charge that Nigeria failed to comply with the Court's Order not to exacerbate the situationin

dispute by taking actions liable to prejudice the rights of Cameroon. By organizing municipal

electionsin the part of Bakassi whichit hadoccupied, Nigeriaattempted toimpart the appearance

of normalityto the situationin Bakassi,as if that area fell as ofrighter Nigerian sovereignty.

Q 68 However, thevery purposeofthe Orderof 15March 1996wasto cal1upon thetwo Partiesto leave

mattersasthey stood. This, then,was a flagrant violation of theCourt'sdecision. 24. It is clear that the same charges maybe levied againstNigeria's decisionto organize

other electionsinJanuary 1999,including the election of governosn the westernpart of Bakassi.

This was a further step along thepath of irredentism pursuedin violation notonly of Cameroon's

sovereignrights,but alsoofthe Court'srder.

25. The Nigerian Govemment'sdecision in December 1996to prohibit low altitude flights

for al1types of aircraft over the Bakassi Peninsula (seeReply of Cameroon (translation), Vol. III

(Ann.RC1),Ann. 55,p. 123),fitsintothesameoverallpicture. Cameroonprotestsin the strongest

terms against yet another arrogation ofpower by Nigeria for the purpose of promulgating a

measureapplicable tothe whole of Bakassi,as if it wereacceptedthat it was Nigeria whichheld

the sovereign rightsover the peninsula. It isy clearthat the Court's Order forbids Nigeria in

any event to extend its territorial claims beyond the area it occdefore 3February 1996. In

terms oflaw, theOrderfrozethe situation. The two Parties are obliged,for the fulldurationof the

proceedings,to respect the existingfacto situation. However,in promulgating anorder which

purports to regulate air traffic over that partof Bakassi defendedand occupied by Cameroon's

armedforces, Nigeriahas onceagaindemonstrated its annexationisintentions.

26. To sum up, it must regrettably be concluded that, evenfier the Court had issued the

Order of 15March 1996, Nigeria continuedto take concrete measuresto strengthenthe defacto

links whichit had artificially createdbetweenthe western part of Bakassiand its own temtories to

theWestof CrossRiver andthe Akwayafe. The seriesof acts which1havejust citedare flagrantly

in breachof the Order. It is the Court's responsibilityto settle the dispute, andthe Court was

thereforeright in seeking to prevent its Judgmentfiom being thwartedby any unilateral measures

which,pendingpronouncement of its final Judgment, mighhtavebeen taken by one or the otherof

the interested Parties.

O 6 g No responsibility has been incurredbyCameroon - Summingup and conclusions regarding
responsibility

Mr. President, Membersof the Court,in the lastpart of my statement,1shallrefer brieflyto

the Nigerian counter-claims alleging that Cameroon has committed a series of internationally

wrongful acts. 1shall also recapitulateCameroon'sposition withrespect to the responsibilityof

Nigeria. 1.Nigeria assertsthat Cameroon,for its part,also violated its obligationsunder international

law. Nigeria has accordingly submitteda number of counter-claims. Cameroonresponded in

detail to those allegations in a document entitled"Observations of the Republic of Cameroon"

dated 4 July 2001. It is therefore now for Nigeria to express its views on the arguments put

fonvard by Cameroon. Before settingout its final submissions, the Republic of Cameroon must

ascertainwhether Nigeria accepts the explanationsit has given or whether it wishes to pursue the

claims ithas made. Cameroon has therefore askedthe Court to grant it a short period of time for

additional argument, in order to respond orally toNigeria's reply concerning the counter-claims.

The Court has acceded to this request. Cameroon thanks the Court for that decision, which was

notified to it by a letter of 10January 2002 fiom the Registrar. It will therefore reply to any

observations Nigeria might be prompted to make in respect of the counter-claims, in the first

instanceduring the next round of oral pleadings and, subsequently,in accordance with the Court's

decision,either before orafter the pleadings relatingto the interventionby Equatorial Guinea.

2. To complete the arguments conceming responsibility, thefollowing is a summary of

Cameroon's position:

The claims for reparation in respect of violations of Cameroonian sovereignty are

maintained,as these are particularlyseriousviolations. They include:

- the invasion of the Bakassi Peninsula and its occupation witha view to its annexation;

- the occupation of a substantial portion of Cameroonian territoryin the region of Lake Chad,

alsowith a view to annexation;

- and Nigeria's failure to comply with the Court's Order of 15March 1996 indicating

provisional measures.

3. In al1 these cases and more particularly,but not exclusively, as regards Bakassi, the

operations concerned were carefully planned and cannot be explained by mere errors committed

"in good faith". The military invasionof a neighbour's territoryis not perpetrated "in good faith".

Moreover, any party disputingan international boundary determinedby international agreement

knows that, prima facie, al1 the evidence militates against its position and that it is therefore

exposedto a major risk and will have to bear al1the consequences thereof if itschallenge to an

established legal situation fails. Cameroonwouldpoint out in this connection that ithas requestedthe Court to permit it to presentan assessrnent of the amount of compensation dueto it as

reparation for thedamage it has suffered as a result of those acts, at a subsequent stageof the

proceedings(Replyof Carneroon, Vol. 1,p. 592,para. 13.02).

4. Furthermore, Cameroon maintains its requestfor the rejection of the Nigerian

counter-claims(Reply of Carneroon, p. 593, para. 13.03). In this connection, however,as 1have

just mentioned,itreservesthe right to lodge itsfinalsubmissionsafter it hashad the opportunityto

reply to Nigeria's arguments concerningthose claims(seeabove,para. 1).

Mr. President, thatconcludesthefirstround of Cameroon'soral argument.

The PRESIDENT: Thank you, Professor. Your statement indeed brings to an endthe first

roundof oral argumentby the Republicof Cameroon. Oral argumentsin the case will resumenext

Thursday, 28 February at 10a.m. in order for the Federal Republicof Nigeria to be heard. The

Sittingis closed.

TheCourtrose at 1p.m.