'.
'
Non-Corrigé
Uncorrected
CR 96/3
Cour internationale International Court
de Justice of Justice
~.'.
LA HAYE THE HAGUE
~.·
ANNEE 1996
Audience publique
tenue le mercredi 6 mars 1996, à lO heures, au Palais de la Paix,
•
sous la présidence de M. Bedjaoui, Président
en l'affaire de la Frontière terrestre et maritime
(Cameroun c. Nigeria)
Demande en ind.ication de mesures conservatoires
COMPTE RENDU
YEAR 1996
Public sitting
beld on Wednesday 6 Marcb 1996, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in tbe case concerning tbe Land and Maritime Boundary
(Cameroon v. Nigeria)
Request for the Indication of Provisional Measures
VERBATIM RECORD - -
2
Présents M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva -.
Herczegh
Shi ~.
Fleischhauer
··,~
Karoma
Vereshchetin
Ferrari Bravo
Mme Higgins
M. Parra-Aranguren, juges
MM. Mbaye
Ajibola, juges ad hoc
M. Valencia-Ospina, Greffier
• - 3 -
Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Higgins
Parra-Aranguren
Judges ad hoc Mbaye
Ajibola
Registrar Valencia-Ospina
• - 4 -
Le Gouvernement du Cameroun est resprésenté par :
S. Exc. M. Douala Moutome, garde des .sceaux, ministre de la justice,
comme agent;
M. Joseph Owona, professeur, ministre de la santé,
M. Joseph Marie Bipoun woum, ministre de la jeunesse et des sports,
comme conseillers spéciaux;
M. Maurice Kamto, professeur à l'Université de Yaoundé,
M. Peter Ntarmack, doyen, professeur de droit à la faculté de droit
et de science politique de l'Université de Yaoundé II, avocat,
membre de l'Inner Temple,
comme coagents;
M. Alain Pellet, professeur à l'Université de Paris X-Nanterre et à
l'Institut d'études politiques de Paris, membre de la Commission·du
droit international,
comme conseil et avocat, et coordinateur de l'équipe des
conseils;
M. Jean-Pierre Cet, professeur à l'Université de Paris 1
{Panthéon-Sorbonne), député européen, ancien ministre,
S. Exc. M. Paul Bamela Engo, avocat, représentant permanent du
Cameroun auprès des Nations Unies, ancien Vice-Président de
l'Assemblée générale des Nations Unies, ancien président de la
sixième commission de l'Assemblée générale des Nations Unies,
ancien président de la Première Commission de la troisième
conférence des Nations Unies sur le droit de la mer,
comme conseils et avocats; •
S. Exc. Mme Isabelle Bassong, ambassadeur du Cameroun auprès des
Etats membres du Benelux;
M. Ernest Bodo Abanda, directeur du cadastre, membre de la commission
nationale des frontières,
M. Marc Sassen, avocat et conseiller juridique, La Haye,
M. Joseph Tjop, consultant à la société civile professionnelle
d'avocats Mignard, Teitgen, Grisoni (Paris), chargé d'enseignement
et de recherches à l'Université de Paris X-Nanterre,
comme conseillers; ,,,_.
- 5 -
Tbe Goveromene of cameroon is represented by :
H.E. Mr. Douala Moutoume, Keeper of the Seals, Minister of Justice,
as Agent;
Professer Joseph Owona, Minister of Health,
Mr. Joseph-Marie Bipoun Woum, Minister of Youth and Sport,
as Special Advisers;
Professer Maurice Kamto, Professer at the University of Yaoundé,
Dean Peter Ntarmack, Faculty of Laws and Political Science,
University of Yaoundé II, Barrister at Law, Member of the Inner
Temple,
as Co-Agents;
•
Professer Alain Pellet, Professer at the University of
Paris X-Nanterre and the Institute of Political Studies, Paris,_
Member of the International Law Commission,
as Counsel and Advocate, Co-ordinator of the Team of Counsel;
Professer Jean-Pierre Cot, Professer at. the University of Paris 1
(Panthéon-Sorbonne), Member of the European Parliament, former
Minister,
H. E. Mr. Paul Bamela Engo, Barrister at Law, Permanent
Representative of Cameroon to the United Nations, Former
Vice-President of the United Nations General Assembly, Former
Chairman of the Sixth Committee of the United Nations General
Assembly, Former Chairman of the First Committee of the Third
United Nations Conference on the Law of the Sea,
as Counsel and Advocates;
H. E. Mrs. Isabelle Bassong, Ambassador of Cameroon to the Benelux
countries;
Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, Member of
the National Boundary commission,
Mr. Marc Sassen, Barrister and Legal Adviser, The Hague,
Mr. Joseph Tjop, Consultant at the Civil Law Firm of Mignard Teitgen
Grisoni (Paris) , Senior Teaching and Research Assistant at the
University of Paris X-Nanterre,
as Advisers; - 6 -
M. Pierre Bedeau, allocataire d'enseignement et de recherches à
l'Université de Paris X-Nanterre, et moniteur,
M. Olivier corten, assistant à la faculté de droit de l'Université
libre de Bruxelles,
comme assistants de recherches;
Mme Mireille Jung,
Mme Renée Bakker,
comme secrétaires;
M. Thimotée Tabapsi Famndie, chargé d'affaires â l'ambassade du
Cameroun, La Haye.
Le Gouvernement du Nigéria est représenté par :
•
S. Exc. le chef M. A. Agbamuche, SAN, honorable Attorney-General de
la Fédération du Nigéria et ministre de la justice,
comme agent;
Le chef Richard Akinjide, SAN, ancien Attorney-General du Nigéria,
ancien membre de la Commission du droit international,
comme coagen t;
M. Ian Brownlie, CEE, QC, FBA, professeur de droit international
public à l'Université d'Oxford, titulaire de la chaire Chichele,
membre du barreau d'Angleterre,
Sir Arthur Watts, KCMG, QC, membre du barreau d'Angleterre,
M. James Crawford, professeur de droit international, titulaire de la
chaire Whewell à l'Université de Cambridge, membre du barreau
d'Australie,
comme conseils et avocats;
.?
M. Timothy Daniel, membre du cabinet D. J. Freeman de la City de
Londres,
M. Alan Perry, membre du cabinet D. J. Freeman de la City de Londres,
Mme Caroline Smith, membre du cabinet D. J. Freeman de la City de
Londres,
comme solicitors;
M. Oye Cukwurah, professeur de droit international et membre de la
commission nationale des frontières, - 7 -
Mr. Pierre Bedeau, Teaching and Research Assistant at the University
of Paris X-Nanterre, and Monitor,
Mr. Olivier Corten, Assistant at the Law Faculty of the Free
University of Brussels,
as Research Assistants;
Mrs. Mireille Jung,
Mrs. Renée Bakker,
as Secretaries;
Mr. Thimotée Tabapsi Famndie, Chargé d'Affaires at the Embassy of
Cameroon, The Hague.
The Governme.nt of Nigeria is represe.nted by :
Chief M. A. Agbamuche, SAN, Hon. Attorney-General of the Federation
of Nigeria and Minister of Justice,
as Agent;
Chief Richard Akinjide, SAN, Former Attorney-General of Nigeria,
Former Member of the International Law Commission,
as Co-Agent;
Professer Ian Brownlie, CBE, QC, FBA, Chichele Professer of Public
International Law, Oxford; Member of the English Bar,
Sir Arthur Watts, KCMG, QC, Member of the English Bar,
Professer James Crawford, Whewell Professer of International Law,
University of Cambridge; Member of the Australian Bar,
as Counsel and Advocates;
Mr. Timothy Daniel, D. J. Freeman of the City of London,
Mr. Alan Perry, D. J. Freeman of the City of London,
Ms Caroline Smith, D. J. Freeman of the City of London,
as solicitors;
Professer Oye Cukwurah, Professer of International Law and Member of
the National Boundary Commission, - 8 -
M. I. A. Ayua, professeur de droit et directeur général de l'Institut
de hautes études juridiques du Nigéria,
M. A. H. Yadudu, conseiller spécial du chef de l'Etat pour les
questions juridiques, commandant en chef des forces armées du
Nigéria,
M. M. Nwachukwu, chargé d'affaires, ambassade du Nigéria aux
Pays-Bas,
Mme Stella Omiyi, directeur au département de droit international et
comparé du ministère fédéral de la justice,
M. Epiphany Azinge, professeur de droit associé et assistant spécial
de l'Attorney-General,
M. M. M.Kida, avocat, ministère des affaires étrangères,
Général de brigade D. Zakari, directeur des opérations du Quartier
général de la défense au ministère de la défense,
comme conseillers.
1. - 9 -
Professer I. A. Ayua, Professer of Law and Director General, Nigerian
Institute of Advanced Legal Studies,
Dr. A. H. Yadudu, Special Adviser (Legal Matters) ta Head of State,
Commander in Chief of Armed Forces of Nigeria,
Mrs. Stella Omiyi, Director, International and Comparative Law
Department of the Federal Ministry of Justice,
Dr. Epiphany Azinge, Associate Professer of Law and Special Assistant
to the Attorney-General,
Mr. M. M. Kida, Barrister at Law, Ministry of Foreign Affairs,
Brigadier-General D. Zakari, Director of Operations, Defence
Headquarters, Ministry of Defence,
Mr. M. Nwachukwu, Chargé d'Affaires, Embassy of Nigeria, The Hague,
• as Advisers. - 10 -
The PRESIDENT: Please be seated. The Court this morning will
resume its public hearings on the Request for the Indication of
Provisional Measures in the case concerning the Land and Maritime
Boundary between Cameroon and Nigeria. I will new call upon the
distinguished Agent of Nigeria, H.E. Chief Agbamuche {SAN), ta make his
opening statement.
Chief M.A. AGBAMUCHE:
A. :rntroductory
A.l. Mr.President, Distinguished Members of the Court, I am greatly
honoured by this opportunity ta address the Court for the first time. I
am also very pleased ta have the opportunity ta emphasize to the Court
the great attachment of the Government and people of Nigeria bath ta the
Bakassi Peninsula itself and ta the population of the area which is
overwhelmingly of Nigerian nationality. Nigeria is convinced that as
matter of international law the whole of the Bakassi Peninsula is
Nigerian territory. That conviction is founded on substantial legal
grounds, upon which counsel will briefly address the Court later this
morning.
A.2. Before I go on any further, Mr. President, I should like ta
make a procedural point. In December 1995 Nigeria lodged its Preliminary
Objections in these proceedings. The first Preliminary Objection is
quite simply to the jurisdiction of the Court in relation ta all the
substantive issues in the case. I should therefore like to state that
anything said or done either in the course of the present hearings or
indeed in any ether forum after the lodging of the Preliminary Objections
is of course without prejudice ta Nigeria's Preliminary Objections.
CN/CR96/3 - 11 -
A.3. Mr. President, the Preliminary Objections are not just a matter
of Nigeria standing on its rights. You should be aware that my Government
was surprised when Cameroon lodged its first Application in these
proceedings, not only because Nigeria had not been informed that Cameroon
was a party to the Optional Clause, but also because in our view its was
inappropriate for Cameroon to seek to resolve the boundary issues in this
forum. It is not that we lack respect for the Court and its Justice.
Far from it. We accepted the compulsory jurisdiction many years aga and
have never withdrawn that acceptance. The point is that bilateral and
e.
regional forums exist for solving these disputes in a less adversarial
way that Cameroon has suddenly chosen.
A.4. Mr. President, what happened on 3 February 1996 was that
Cameroon launched a surprise attack on Nigerian positions in Bakassi, and
I shall deal with this in detail in a few minutes. Before I do sa,
however, it is important that I set the scene. Relations between Nigeria
and Cameroon have always been good. The two countries have maintained
diplomatie relations since independence without interruption, in spite of
recent events. There is a long history of close co-operation between
Nigerian and Cameroon, in many specifie areas of activity. This co
operation is evident from the bila.teral agreements reached between the
two countries covering such matters as telecommunications, visa
abolition, aerial services, police and judicial matters. There are
agreements and proposed agreements on economie, scientific ·and technical
co-oJ;)eration, and the Nigeria-Cameroon Joint Commission. There is a
substantial Nigerian population in Cameroon, and a significant
Cameroonian population in Nigeria. There is also the bilateral machinery
CN/CR96/3 - 12 -
for settling boundary questions, referred ta in extenso in Chapter 2 of
Nigeria's Preliminary Objections.
A.S. In the context of this present hearing, it is significant to
note that in the immediate afte.rmath of the violent clash of
3 February 1996, Nigerian troops took part in a joint military exercise
called "Mount Cameroon Run", a physical training exercise. These events
occurred well within the Cameroonian borders, and ether countries also
participated. The arrangements bad already been made. After the events
of 3 February 1996, my Government wondered whether its troops should pull
out. The Cameroonians pressed us to participate. We did sa as a
confidence-building measure.
A.6. The incidents of 3 and 17 February were certainly not the first
that Cameroon bas staged in recent months. For example, on 25 July 1995
Cameroonian soldiers infiltrated into Nigerian West Atabong, beating up
Nigerian civilians and confiscating motor-boats and fishing nets, and
this without any legal justification. The infiltrating Cameroonian
troops were also reported to have opened fire on a civilian vesse! at
West Atabong, killing a number of persans. The following manth, in
August 1995, there was a Cameroonian attack on Nigerian positions in
Archibong town. Nigerian casualties included one killed and one wounded,
and one Cameroonian was also killed.
A.7. TUrning ta the events of 3 February itself, numerous reports
coincide in presenting the following picture. rn presenting these facts
to yoo, Mr. President, I would invite the Court tc look at the map on the
screen behind me. I will ask Mr. Timothy Daniel ta point tc the places I
refer to. Yeu have copies of this map in the front pocket of Nigeria's
documents file.
CN/CR96/3 - 13 -
- First, that attack took the form of an entire1y unprovoked surprise
Cameroonian artillery barrage which started at 12 neon and lasted
6 hours and 47 minutes. The attack was directed at Atabong West
(which is referred ta by Cameroon as Idabato One) and ether locations.
The attack was launched from beats, by water-borne raiders who had
stealthily infiltrated through the navigable creeks across the centre
of the Peninsula. Probably they came from Cameroonian bases east and
north of the Rio del Rey. I should stress, Mr. President, that unlike
Nigeria which bas a number of military installations in Bakassi,
e.
Cameroon bas no fixed military positions there. It launched its
attack from outside the Peninsula. It is obvious that the attack was
designed to take the Nigerian farces by surprise. It could not have
occurred without beth considerable planning and logistical support.
- second, Nigeria's response, which took place only after it was
properly authorized by the military High Command, was limited in scope
and proportionate to the need to defend itself and its population.
Nigeria bas gained no ground. Its military positions remains where
they were prier tc 3 February this year.
- Third, acccrding tc Cameroon there were cnly two casualties and one
missing in consequence of an allegedly wide-ranging attack by Nigeria.
This is untrue. Ten Nigerian civilians were killed and 20 more were
waunded. Nigerian military lasses amcunted to two soldiers killed and
three wounded. This imbalance in casualties tells the whole story.
In addition, the material damage was to Nigerian property, not
Cameroonian property. The places referred to by Cameroon did not fall
into Nigerian bands. They are villages inhabited by Nigerian
nationals. Each village bas its distinctive Nigerian name, and these
CN/CR96/3 14 -
appear in tab No. 1 of Nigeria's documents file. In the absence of
appropriate local hospital facilities, sorne of the casualties were
treated in Nigerian state hospital at Calabar, the relevant
administrative centre.
A.a. Three things particularly shocked us about the events of
3 February 1996, and I will not·conceal from yeu that we were seriously
angered.
In the first place, this was one of the worst incidents for which
Cameroon bas been responsible, involving the shelling of Nigerian
villages, substantial loss of civilian life and considerable injury to
people and property.
- The second reason why we were so shocked was that Cameroon's action
again seems to have been not a matter of trigger-happy border guards
behaving badly but a cold-blooded political decision taken at a high
leve! in the cameroonian capital. The attack was preceded by an
artillery barrage lasting over six hours, and that is not something
that happens by accident.
The third reason was that this time around Cameroon was particularly
unrepentant and impatient. I should stress that, notwithstanding that 4lt
Nigeria did eventually respond to the attack, the Nigerian military
positions remain where they were prier to 3 February 1996.
A.9. Nevertheless these events were followed by Nigeria's
unhesitating acceptance of the mediation of H.E. President Eyadema of
Togo. Nigeria takes this opportunity to express its thanks and
appreciation to the President of Togo for his efforts in this respect.
Sir Arthur Watts will refer in more detail to the subject of mediation
later this morning.
CN/CR96/3 - 1-5 -
A.10. It has always been and still is the profound conviction of my
Government that Cameroon must accept, not merely verbally but by its
acts, that the dispute over Bakassi, and all ether disputes, must be
resolved by peacefu1 means in accordance with international law and the
fraternal relationship between neighbouring African States. Nigeria
itself bas shawn bath by its words and its actions, which have always
been restrained, that it is 100 per cent committed ta the peaceful
resolution of_ the Bakassi issue. Nigeria therefore notes with real
concern that Cameroon seems less and less interested in dialogue, but
instead seeks ta manipulate the opinion of the international community
and confront Nigeria with this precipitate request to the court.
B. The Cameroonian attitude and their request that
the Court indicate interim measures
B.l. cameroon has gene ta extraordinary lengths, in its request that
the Court indicate interim measures, to paint Nigeria as a powerful and
aggressive State. Quite apart from the legal difficulties, however, the
way they paint that picture is inherently implausible and wholly
inaccurate, and the measures they propose are inappropriate.
B.2. Nigeria rejects the assertions made by Cameroon in its request
for the indication of interim measures, at paragraphs 3 tc 7. These
assertions seek ta belittle Nigeria's Preliminary Objections. In due
course this Court will pronounce on the Preliminary Objections after
reasoned argument, not on the basis of emotive statements by Cameroon.
8.3. Nigeria wholly rejects Cameroon's assertion, in paragraph 4 of
its request, that the fighting was started by Nigeria. Intelligence
reports indicate that Cameroonian forces started the fighting with a
heavy artillery barrage directed against Nigerian military positions.
CN/CR96/3 - 16 -
Newspaper and radio reports tell the same story. Cameroon falsely states
that "Nigerian forces . attacked . along the entire ceasefire
line". Not only did Nigerian forces not attack, but there is no question
of fighting across the whole of the Bakassi peninsula, which is what
cameroon's statement clearly implies.
B.4. The Court will note that Cameroon's story of, and I quete from
the Request, an "attack along the ent.ire ceasefire line", is inconsistent
with the fact that 80 per cent of the casualties were Nigerian citizens.
B.S. Nigeria's response, by contrast, bas ben limited tc necessary
and proportionate force, utilized in self-defence only. Nigeria bas no
intention of using military force to and I quete from the Cameroonian
request "continue the conguest of the Bakassi Peninsula". Nigeria's
position is, as it has always been, ta resolve the Bakassi issue by
peaceful means. .It is Cameroon which continues ta use force tc further
its own ends.
B.6. There is no desire on Nigeria's part tc - and again I quete
from the Request - "create a fait accompli on the ground". There would
be no point. Bakassi is Nigerian territory, inhabited by Nigerians who,
in normal times, go about their ordinary business of fishing, farming and
trading.
B.7. Cameroon claims tc fear the destruction of evidence. But there
is absolutely no reason tc believe that any evidence is at risk. If
there is any danger of destruction, it cornes from Cameroon•s own acts of
violence and systematic attempts tc create facts stamping the peninsula
with its national character. It is Nigeria•s wish that the existing
evidence be preserved: in Nigeria•s view, all of it is favourable ta
Nigeria's case on Bakassi.
CN/CR96/3 - 17 -
8.8. Nigeria will be taking steps at any appropriate time and in any
appropriate forum tc make its own request for an apology by Cameroon for
its recent actions. Nigeria will also request, in an appropriate forum,
that reparation be made for loss of the lives of its citizens and damage
tc Nigerian property.
8.9. Nigeria does not know why the Cameroonian forces attacked in
Bakassi on 3 February. What we do know is that·they did so. Certain
facts, however, speak for themselves and can easily be demonstrated. In
particular
- Cameroon bas been systematically building up its military capabilities
around Bakassi for many months - I will deal with this more fully in a
few moments.
- In January of this year cameroon illegally held local elections in
sorne areas of Bakassi, in the fact of strong protesta by my Government
and in circumstances which could only constitute a provocation.
Nigerian civilians in those areas were harassed and forced to
participate in the election.
- Nigerians reacted with proper proportionality: it bas consistently
met the provocations of Cameroon with restraint.
B.lO. My Government has serious reservations about the good faith
with which Cameroon is pursuing its claims. But the resort to military
confrontation is on any view inexcusable under international law. It bas
caused numerous dead and wounded amongst the Nigerian civilian population
of Bakassi, who were entirely unprepared and were caught in a bombardment
lasting over six hours on 3 February 1996. There is no suggestion of
civilian casualties on the Cameroonian side. The claim that Nigeria was
an aggressor was not merely false but in the highest degree improbable.
CN/CR96/3 - 18 -
If Nigeria planned tc attack the Cameroonian lines it would hardly do sc
in an area heavily populated with Nigerian civilians.
B.ll. In December 1995 Cameroon•s Memorial of March 1995 was met by
Nigeria's Preliminary Objections. Although the Court is not deciding the
Preliminary Objections at these hearings, it is important that the Court
appreciates how serious those Objections are, ·ana counsel will address
the Court on this subject.
B.l2. In all the years that Cameroon claimed to have bad an active
presence it never held local elections. Then, having completed its
military build-up, it did so in January 1996, in the face of Nigerian
opposition - Nigeria filed a strong protect in October 1995. Attempts
were made to force the Nigerian population to register to vote. In the
aftermath of the Nigerian Preliminary Objections, the whole exercise
bears a strong flaveur of forensic theatre. The Court will observe that
there was no question of our resorted tc arms. On the contrary, on 3
February it was Cameroon that did so. Nigeria bad no way of knowing that
it was tc be attacked, and indeed was taken by surprise.
C. Nigeria•s attitude tc Cameroon•s_ request that
the Court indicate Interim Measures
C.l. Essentially, Cameroon put its case on Interim Measures in two
ways. First, it says the confrontation was caused by Nigerian
aggression. Second, it says that irrespective of who started the
conflict, this is a proper case for Interim Measures ta be indicated.
C.2. The essence of our response consists of three short points:
CN/CR96/3 - 19 -
First, we say the Court bas not even got prima facie jurisdiction
over the substantive issues, nor are they presented in an admissible
forum.
Second, we say that this is not a case in which Interim Measures
should be indicated at the request of Cameroon, because cameroon is
really using its request in an effort tc obtain sorne premature
determination of its merits in relation ta the whole boundary.
The third point is this. What I have said does not mean for one
moment that Nigeria is opposed to measures to defuse the tensions in
Bakassi. Nigeria is highly interested in peaceful resolution of the
dispute and bas indeed welcomed and actively participated in
m2diation efforts initiated by the President of Togo. Nigeria is
concerned that following the ministerial meeting in Kara, Togo,
during which the Cameroonians agreed to the cessation of
hostilities, their troops attacked Nigerian positions on 16 and 17
February 1996. On the night of the 16th the attack was a
long-distance one, by helicopter. On 17 the attack was water borne.
On these two days, two Nigerian soldiers were killed and six
wounded.
The Court should know that President Eyadema is vigorously pursuing
the mediation efforts already started. A further ministerial
meeting is new being scheduled for 12 and 13 March. This is to pave
the way for a meeting of the Heads of State of Nigeria and Cameroon.
Despite the hesitations the Cameroonian Agent appeared ta be
expressing yesterday (CR 96/2 p. 26}, we trust that Cameroon does
not really intend ta do this.
CN/CR96/3 - 20 -
D. Recent events in relation tc Bakassi
0.1. Mr. President, 1 would like new to turn to a few recent events
in the Bakassi region. Information available to Nigeria reveals that in
the period since May 1995 Cameroon bas been steadily building up its
forces in the area around Bakassi. Time does not permit me to tell the
Court all the details, but let me give the Court seme flaveur of
cameroon's activities.
After May 1995, gun-boats and flying-boats were provocatively
stationed and helicopters overflew Nigerian positions
In the Summer of 1995 Cameroon•s armed forces were strengthened by
substantial arms supplies from abroad, and in August 1995, 25
foreign military officers were deployed to areas around Bakassi
Cameroon's troops around Bakassi were reinforced in the Summer of
1995 by 80 cross country military vehicles and assorted weapons,
including 500lb. cluster bombs, a container-load of 81MM mortars and
a container of communications equipment, a Velment BL-SOTR aircraft
(1984 madel) and 380 rocket launchers. In September 1995
Cameroonian forces at Douala (less than 150 km. from Bakassi)
received 3 Alfa jet fighters, 400 rocket launchers, 12 trucks, a
container of cluster bombs, and 120 type-86 machines guns. These
were not required for fishing!
The numbers of Cameroonian troops around Bakassi steadily increased
over the period from May ta August 1995, until they numbered ·about
1,900, comprising 1,300 ground troops, 400 marines equipped with
fast river patrollers, and 200 gendarmes (Cameroonian policemen)
equipped with coastal patrollers and four routine patrol beats. In
December 1995 Cameroonian forces there acquired an anti-aircraft gun.
CN/CR96/3 - 21 -
0.2. Within two weeks of conducting the illegal elections, Cameroon
started shelling Nigerian civilians in Bakassi. Nigeria is in no doubt
that the attacks of 3 and 17 February were planned at a high level in the
cameroonian Government. There is equally no doubt that responsibility
rests with the central Government in Cameroon.
Thank yeu, Mr. President, for listening to me. I new invite yeu to
call upon Professer Brownlie to develop the legal issues further on
Nigeria's behalf.
The PRESIDENT: I thank you very much, Chief Agbamuche (SAN), for
your statement and I now give the floor ta Professer lan Brownlie.
Professer BROWNLIE: Thank you, Mr. President. My first
presentation this morning will deal quite briefly with three tasks.
First, to outline.the Nigerian position generally in these proceedings.
Secondly, ta emphasize the special features of the competence of the
Court to indicate interim measures and thirdly, to examine the specifie
terms of Cameroon's request.
Nigeria's position in relation to Cameroon's request
Nigeria's position in relation to the request has four main aspects:
1. First, it bas not been Nigeria's strategy to utilize the interim
measures procedure for tactical purposes.
2. Secondly, after the events of 3 February the situation bas, in
general terms, stabilized. A cease-fire bas been in place instituted
under the auspices of H.E. President Eyadema of Togo.
CN/CR96/3 - 22 -
3. And in our view, precisely because of that mediation, and the
resulting cease-fire, the Cameroonian request is in truth now without
abject. It bas, in English terms, become moot.
4. And lastly, I would like to say that we, for forma! purposes, but
it is important to Nigeria, to emphasize that the jurisdiction of the
Court to indicate interim measures cannot.prejudice the Respondent
State's position in any subsequent phases of the case.
The special features of tbe jurisdiction to indicate interim measures
5. I would like now to emphasize sorne of the special features of the
exercise of this form of incidental procedure by the Court.
6. The jurisdiction does not depend on any direct consent given by
the Parties, and thus the competence is "an inherent part of the standing
powers of the Court under its Statute" {Fitzmaurice, The Law and
Procedure of the International Court of Justice, 1986, II, p. 533).
7. In the result, the jurisdiction is functionally specialized and
governed by the relevant provisions of the Statute and Rules of Court.
It is not a provisional version either of the preliminary objections or
of the merita.
8. It is certainly true that a major purpose of the indication of
interim measures is tc prevent any prejudice tc the respective rights of
either party and tc avoid anticipating the outcome of the claim on the
merita.
9. Article 41, paragraph 1, after all, is drafted in very bread
terms. The requirements are left unspecified ta a considerable extent,
and the power ta arder measures "which ought ta be taken ta preserve the
respective rights of either party" necessarily leaves the Court with a
substantial discretion.
CN/CR96/3 - 23 -
9.1. Above all, the measures are "interim" or "provisional".
9.2. Articles 73 tc 76 refer constantly tc the indication of
"provisional measures".
9.3. And the existence of jurisdiction in respect of the merits is
not required, except on a prima facie basis.
10. And consonant with this, the measures indicated may be revoked
or rnodified in accordance with Article 76, of the Rules.
11. Mr. President, this sketch of the jurisdiction to indicate
interim measures can be rounded out by a reference tc the power of the
Court to indicate measures proprio motu. Article 75, paragraph 2, of the
Rules provides that
"When a request for provisional measures bas been made, the
Court may indicate measures that are in whole or in part ether
than those requested, or that ought to be taken or complied
with by the party which bas itself made the request."
12. The authoritative writers regard this power to arder proprio
motu as of particular significance (see Hudson, The Permanent Court of
International Justice, 1920-1942, 1943, p. 424, para. 433); Rosenne, The
Law and Practice of the International Court, 2nd rev. ed., 1985,
pp. 426-427; Lauterpacht, The Development of International Law by the
International Court, 1958, p. 256; Fitzmaurice, The Law and Procedure of
the International Court of Justice, II, ~986, pp. 544-545).
13. And it may be recalled that the Court made constructive use of
the power in its Order in the Anglo-Iranian case {I.C.J. Reports 1951,
pp. 93-94).
There are no stibstantial reasons for an indication of interim measures
14. In the view of Nigeria there are quite simply no substantia1
reasons for an indication of interim measures and certainly not for an
CN/CR96/3 - 24 -
indication of measures directed exclusively to the Respondent State as
requested by cameroon.
15. In view of the mediation and cease-fire, the request bas become
essentially moot, as my colleague Sir Arthur Watts will explain further
in due course.
16. But, Mr. President, even if the request were not moot, the
primary condition for the indication of.interim measures, which is the.
need to preserve the respective rights of the Parties, ha.s not been
satisfied.
17. This particular abject was affirmed by the Court in its Judgment ..".--
in the Anglo-Iranian case. In the words of the Court there:
18. "Whereas the abject of interim measures of
protection provided for in the Statute is to preserve
the respective rights of the Parties pending the
decision of the Court, and whereas from the general
terms of Article 41 of the Statute and from the power
recognized by Article 61, paragraph 6, of the Rules of
Court, tc indicate interim measures of protection
proprio motu, it follows that the Court must be
concerned tc preserve by such measures the rights
which may be subsequently adjudged by the Court tc
belong either tc the Applicant or tc the
Respondent " (I.C.J. Reports 1951, p. 93.)
19. This is the abject expressly formulated in Article 41 of the
Statute and was regarded by Sir Gerald Fitzmaurice as the primary, if not
the only, abject of interim measures (Fitzmaurice, op. cit, p. 544}.
20. In sorne sources this condition for the grant of interim measures
is reformulated so as tc refer ta the requirements of a risk of
irreparable damage to the rights in issue in the proceedings.
21. The essence of the criterion bas been neatly described by a
former President of the Court, Professer Jiménez de Aréchaga, in this
way:
CN/CR96/3 - 25 -
"ln all recent cases where interim measures were requested
from the International Court of Justice the essential argument
of the applicants concerned the impossibility or the extreme
difficulty of restoring the existing situation if the judgment
went in faveur of the applicant and interim measures were
refused." RCADI, Vol. 159 (1978-I), p. 159).)
23. Professer Jiménez de Aréchaga bad placed emphasis on this
element in.his separate.opinion.in the .Aegean Sea Continental Shelf case,
Request for the Indication of Interim Measures of Protection,
I.C.J. Reports 1976, pages 15-16. In his words:
"The essential abject of provisional measures is tc ensure
that the execution of a future judgment on the merits shall not
be frustrated by the actions of one party pendente lite. In
cases in which there is no reasonable possibility, prima facie
ascertained by the court, of jurisdiction on the merits, it
would be devoid of sense ta indicate provisional measures to
ensure the execution of a judgment the Court will never render.·
But the possibility of jurisdiction over the merita is only
one among ether relevant. circumstances. There are ethers ta be
taken into consideration - such as the questions whether
provisional measures are necessary ta preserve the rights of
either party and whether the acts complained of are capable of
causing or of threatening irreparable prejudice ta the rights
invoked. According ta general principles of law recognized in
municipal systems, and ta the well-established jurisprudence of
this Court, the essential justification for the impatience of a
tribunal in granting relief before it has reached a final
decision on its competence and on the merita is that the action
of one party •pendente lite' causes or threatens a damage ta
the rights of the ether, of such a nature that it would not be
possible fully to restore those rights or remedy the
infringement thereof, simply by a judgment in its.favour. The
Court's specifie power under Article 41 of the Statute is
directed ta the preservation of rights 'sub-judice' and does
not consist in a police power over the maintenance of
international peace nor in a general competence to make
recommendations relating to peaceful settlement of disputes."
24. And indeed, Mr. President, it is useful ta compare the
circumstances of the present case with the Request for Interim Measures
in the Aegean Sea Continental Shelf case. In that case the Court did not
respond positively to the request by Greece.
CN/CR96/3 - 26 -
25. The relevant passages in the order are as follows:
26. "32. Whe.reas, on the ether band, the possibility of such a
prejudice to rights in issue before the Court does not, by
itself, suffice ta justify recourse to its exceptional power
under Article 41 of the Statute tc indicate interim measures of
protection; whereas, under the express terms of that Article,
this power is conferred on the Court only ïf it considera that
circumstances so require in arder to preserve the respective
rights of either party; and whereas- .this condition, as ..already
noted, presupposes that the circumstances of the case disclose
the risk of an irreparable prejudice to rights in issue in the
proceedings;
And the Court's Order continues:
33. Whereas, in the present instance, the alleged breach by
Turkey of the exclusivity of the right claimed by Greece to
acquire information concerning the natural resources of areas
of continental shelf, if it were established, is one that might
be capable of reparation by appropriate means; and whereas it
follows that the Court is unable ta find in that alleged breach
of Greece's rights such a risk of irreparable prejudice ta
rights in issue before the Court as might require the exercise
of its power under Article 41 of the Statute ta indicate
interim measures for the ir preservation ... " (I. C. J. .Reports
1976, p. 11.)
28. The Co~rt will recall that in that case the activities of the
Turkish seismic research vesse! almost certainly impinged upon the
exclusive rights claimed by Greece and yet the Court very clearly states
that any violation of Greek rights was "capable of reparation by
appropriate means".
29. Mr. President, Members of the Court, the Turkish activity there
was by no means comparable with the spontaneous and necessary actions of
military units faced with a sudden assault by Cameroonian forces. It is
entirely unrealistic tc suggest that the localized disturbances in
Bakassi have created a risk of irreparable prejudice to the rights of
either Party.
30. And, Mr. President, it is clear that, in arder to achieve the
abject to preserving the respective rights of bath Parties pending a
CN/CR96/3 - 27 -
final judgment, the abject is ta do sa in the interests of beth Parties
equally. In this connection I draw the attention of the Court ta the
opinion of Sir Gerald Fitzmaurice on this point. With reference to the
preservation of the parties' respective rights, he had this observation:
"This abject is clear from the passage quoted in the
previous paragraph above, from which it .seems ta follow that,
apart from the general abject of preserving the parties' rights
as finally determined by the Court, the abject is tc do sa in
the interests of bath parties equally; and further that the
main purpose of the power to act proprio motu is ta ensure that
the Court can always do this, and is not confined ta doing sa
only if one of the parties sa requests." (The Law and
Procedure of the International Court of Justice, Cambridge,
1986' p. 544.)
31. Finally, Mr. President, I would like ta turn to the terms of the
cameroonian request.
The first indication requested is that:
32.
"(1) the armed forces of the Parties shall withdraw to the position
they were occupying before the Nigerian armed attack of
3 February 1996".
33. In the view of the Nigerian Government this request is
tendentious and its terms ignore the overriding purpose of Article 41,
which is ta maintain the respective rights of bath part.ies .
34. Mr. President, there was no armed attack by Nigerian armed
forces. Let us be quite clear about that. Nigerian armed forces were,
it is true, stationed in Nigerian territory, the ·Peninsula of Bakassi,
inhabited by Nigerians. The Nigerian arme.d forces were subjected ta a
surprise attack, rnounted we think through the creeks, and eventually
responded after considerable patience by taking proportionate rneasures of
self-defence.
CN/CR96/3 - 28 -
35. New the request calls for withdrawal and on behalf of the
Government of Nigeria, I make two points:
36. First there was no advance by the Nigerian armed forces and it
follows there can be no question of withdrawal. There was a surprise
attack from outside the area on Nigerian possessions. The attack was
water-borne and was very·probably from outside Bakassi.
37. Secondly, in the context of such calls for withdrawal it is
relevant tc recall the following passages from the Order of the Chamber
in the case concerning the Frontier Dispute (Burkina Faso/Republic of
Mali). There the chamber stated:
•
38.
"Whereas the measures which the Chamber contemplates
indicating, for the purpose of eliminating the risk of any
future actions likely to aggravate or extend the dispute, must
necessarily include the withdrawal of the troops of bath
Parties to such positions as to avoid the recrudescence of
regrettable incidents; whereas, however, the selection of
these positions would require a knowledge of the geographical
and strategie context of the conflict which the Chamber does
not possess, and which in all probability it could not obtain
without undertaking an expert survey; and whereas in these
circumstances the Chamber, while remaining seised of the
question, notes that the Heads of State, acting in the
framework of the ANAD [that's a regional organization] are
shortly to define the detailed terms of the troop withdrawal
which the Chamber considers it should indicate as a provisional
measure ... " (I.C.J. Reports 1986, pp. lO-J.l.)
39. The Chamber here surely recognizes the practical and necessary
limitations upon the judicial competence to efficiently orchestrate an
appropriate policy of withdrawal.
40. I move on to the second precise indication requested by
cameroon.
CN/CR96/3 """"ï"
- 29 -
41.
"(2) the Parties shall abstain from all military activity",
Mr. President, all military activity, "along the entire
boundary until the Judgment of the Court is given".
42. In the view of Nigeria, Mr. President, in the circumstances of
this case this aspect of the request ~acks any reality and any legal
foundation.
43. First of all, it refers, quite unnecessarily, to the entire
boundary, presumably the entire boundary between Lake Chad and the sea.
Secondly, its is clearly unreasonable to ask the Court to indicate
measures which would necessarily impinge upon the responsibilities of the
State for the maintenance of security on its own territory. The measures
requested surely bear no relation to the facts even the version offered
to the Court by Cameroon.
44. I move on to the third and final specifie indication requested
by Cameroon.
"(3) that the Parties shall abstain from any act of action which
might hamper the gathering of evidence in the present case".
Mr. President, for us this is strange request, it is perhaps reminiscent
of the Burkina Faso request in another ca.se. But no evidence is adduced
er
by Cameroon to show why such an indication should be necessary.
45. Mr. President, by way of conclusion, I request the Court,
respectfully, to focus upon four elements in these proceedings. First
the perversive lack of specificities concerning the facts on the part of
our colleagues in the delegation of Cameroon. And this vagueness is
surely the more unfortunate when we recall that Cameroon is the
requesting State. It is Cameroon that bas got us all here in this Great
Hall of Justice. Secondly, even on the facts alleged by Cameroon there
CN/CR96/3 - 30 -
is no evidence of irreparable damage or risk of irreparable damage to the
rights in issue in these proceedings. Thirdly, there was no aggression
by Nigeria; what occurred was a skilfully prepared surprise attack by
Cameroonian forces taking advantage of the unusual geography of the
region, and which attack once launched was sustained for more than six
hours. This attack as I have said already severa! times very probably
came from outside Bakassi. There had been no provocation and there were
civilian casualties among the Nigerian population. Finally in view of
the fact that there can be no presumption of any kind in faveur of the
requesting State, simply because it is the requesting State, the adoption
of a tactical posture cannet be an indicator as to where the truth lies.
46. Mr. President, I have completed my presentation. My examination
of the eccentricities of the Cameroonian reguest has left on one side the
issue of the mootness of the request. This argument will be presented by
my colleague Sir Arthur Watts.
47. Mr. President, I thank yeu and the Members of the Court for
hearing me so patiently and I ask yeu to give the floor to
.Sir Arthur Watts.
PRESIDENT : I thank you very much, Professer Brownlie, for your
statement and I now give the floor ta Sir Arthur Watts.
Sir ARTHUR WATTS: Thank you very much, Mr. President.
Cgmeroon's Reguest for an Indication of Proyisional Heasures is Hoot
Mr. President, distinguished Members of the Court, let me say first
how greatly honoured I am to be addressing the Court, on behalf of the
Federal Republic of Nigeria.
Mr. President, following Professer Brownlie's submissions I should
now like to address a further aspect of Cameroon's request and to submit
CN/CR96/3 - 31 -
that it bas no further purpose ta serve and should, for that reason, be
dismissed. This submission is made without prejudice tc Nigeria's
assertion that Cameroon's request for interim measures never, even at the
outset, has any proper foundation or any proper purpose. As already
explained by the Agent for Nigeria, the facts of the recent events in
Bakassi were quite different from the version which cameroon chose .to put
before the Court. But whatever the facts may have been (and without in
any way admitting the version of the facts as originally alleged by
cameroon), it is clearly the case now that matters have developed in such
a way that no possible purpose can now be served by Cameroon's request
for interim measures, and that therefore that request should be
dismissed.
The Agent for Nigeria bas explained in detail the facts surrounding
the events which took place in early February: I will not try to add tc
what he bas said. The Court should, however, be aware of certain
developments which took place after those incidents occurred.
The unprovoked water-borne attacks on Nigerian positions, which
broke out at the beginning of February, dismayed the Government of
Nigeria every bit as much as Cameroon says they dismayed the Government
of Cameroon. They also caused concern ta the President of the
neighbouring State of Togo. He appeale.d ta the Heads of State of Nigeria
and Cameroon to defuse the tension, and to have confidence in his
mediation role in this matter; and in that context, he invited the
Foreign Ministers of Nigeria and Cameroon ta meet in Togo, at Kara, on
16 and 17 February.
That meeting duly took place, and at its conclusion, on 17 February,
a communiqué was issued. The communiqué was signed by the two Foreign
Ministers, as well as by the Foreign Minister of Togo. It is an
important document in the context of the present proceedings and the text - 32 -
is in the bundle of documents placed before the court by Nigeria; it is
at Tab 12 in that bundle.
As the Court will see, Mr. President, the communiqué recorded that
"the two Ministers assessed the prevai'ling situation in the Bakassi
Peninsula and agreed to stop all hostilities". They further "recognized
that the dispute is pending at the International Court of Justice", and
"They agreed to meet again in the first week of March 1996, tc prepare
for the summit of the Heads of State of Nigeria and cameroon under the
auspices of President Eyadema of Togo"; and they further "appealed to
President Eyadema tc continue with the mediation".
Following that meeting in Kara, this very week, while we are here in
The Hague, the Foreign Ministers of Nigerian and Cameroon are also
preparing ta meet again to discuss all these matters, and to prepare for
the subsequent meeting of the two Heads of State, tc be held under the
auspices of a third Head of State that of a neighbouring State which
bas been consistently and helpfully concerned to assist Nigeria and
Cameroon tc reach an amicable settlement of their differences. That
summit meeting will take place saon, when the Foreign Ministers have
prepared it.
And that, Mr. President, is the proper way in which these immediate
matters should be addressed and resolved - in direct discussion between
the two States concerned, at the very highest leve!. Those two States
have reached an agreement that such discussions should take place. There
is no need to involve the court. cameroon bas nevertheless chosen to do
so - in circumstances in which, as bas been demonstrated, no irreparable
prejudice to the respective rights of Nigeria or Cameroon bas occurred or
is likely to occur, and no requirements of the due administration of
justice call for any interim measures to be indicated by this Court.
CN/CR96/3 - 33 -
That Cameroon bas in these circumstances chosen ta seek an indication of
interim measures only serves ta cast doubt on the genuineness of
Cameroon•s professed reasons for bringing this matter before the Court by
way of its request.
The law
Mr. President,· the diplomatie activity of recent weeks, continuing
this week and carrying on into the summit meeting tc be held saon, is
intense. It takes place as part of the mediation by the Head of a third
State - a mediation to which Nigeria and Cameroon have agreed and which
through their Foreign Ministers they have just three weeks aga appealed
to him ta continue. It is of the utmost importance that President
Eyadema's mediation should be allowed ta take its course: as is recorded
in the communiqué of 17 February, he appealed to the Heads of State of
Nigeria and Cameroon ta "resort ta dialogue and negotiation in resolving
the dispute". That process should not be prejudiced in any way.
It is of course true, Mr. President, that States, at the same time
as they pursue a case before the Court, are free tc negotiate or resolve
particular aspects of the dispute brought before the Court, without
thereby precluding the Court from continuing to exercise its proper
functions. A Chamber of the Court made this clear in its Order of
10 January 1986 in the Burkina Faso/Republic of Mali case (I.C.J. Reports
1986). But that does not necessarily dispose of the matter for our
present case.
- In the first place, that case was one in which bath States had
agreed tc the Court's jurisdiction over the principal case, and in
relation tc the incidental proceedings for interim measures beth States
had sought such measures: neither of those considerations applies to the
present proceedings.
CN/CR96/3 - 34 -
- In the second place, the future meeting of the Heads of the two
States involved in the Burkina Faso and Mali case was to be concerned
only with one specifie matter - that of possible troop withdrawals. No
such limitation attends the prospective meeting of the Heads of State of
Nigeria and Cameroon.
- Third, the Heads of State of Burkina Faso and Mali were meeting on
a purely bilateral basis; in the present situation there is, as I have
explained, a mediation by the Head of a third State.
- Fourth, the fact that the Court may have a possibility of acting
does not necessarily mean that it would be opportune for it to do so:
the Court bas a substantial measure of discretion. It is always the case
that these matters turn on the particular circumstances, and for the
reasons which I shall now go on to explain, Nigeria submits that the
Court should decline to take any action on Cameroon's request for interim
measures.
The Court, Mr. President, bas consistently declined to give judgment
where there is no need for it to do sa. Thirty-three years ago, in
relation to matters closely connected - at least geographically - to the
matters now before the Court in these proceedings, the Court considered ·4lt
this issue in the North.ern Cameroons case (I.C.J. Reports 1963, pp. 38-
39). There the Court declined to give a judgment in the light of its
views as to sorne very fundamental aspects of the Court's functions.
Although, said the Court, it is
"the act of the Applicant which seises the Court, [and] even if
the Court, when seised, finds that it bas jurisdiction, the
Court is not compelled in every case to exercise that
jurisdiction. There are inherent limitations on the exercise
of the judicial function which the Court, as a court of
justice, can never ignore ... The Court itself, and not the
parties, must be the guardian of the Court's judicial
integrity." (P. 29.)
The Court went on:
CN/CR96/3 - 35 -
"it always a matter for the determination of the court whether
its judicial functions afe involved ... To determine whether
the adjudication sought by the Applicant is one which the
Court's judicial function permits it to give, the Court must
take into account certain facts in the present case."
(Pp. 30, 31.)
After considering the facts of the case, the court, in the light of the
essential nature of its judicial function, declined to adjudicate upon
issues where, in the circumstances which hàd arisen, to have done so
would have been "devoid of purpose", and again "(a)ny judgment which the
Court might pronounce.would be without abject".
Mr. President, 10 years later, in 1974, the Court followed the same
reasoning in the Nuclear.Tests (Australia v. France) case
(I.C.J. Reports 1974). In its Judgment in that case, the Court speke as ..
follows:
"The Court, as a court of law, is called upon to resolve
existing disputes between States. Thus the existence of a
dispute is the primary condition for the Court ta exercise its
judicial function; it is not sufficient for one party to
assert that there is a dispute ... The dispute brought before
it must therefore continue to exist at the time when the Court
makes its decision. It must not fail ta take cognizance of a
situation in which the dispute has disappeared because the
abject of the dispute has been achieved by ether means."
(Pp. 270-271, para. 55.)
And the Court continued that Article 38 of the Statute and
"ether provisions of the Statute and Rules also make it clear
that the Court can exercise its jurisdiction in contentious
proceedings only when a dispute genuinely exists between the
parties. In refraining from further action in this case the
Court is therefore merely acting in accordance with the proper
interpretation of its judicial function." (P. 271, para. 57.)
"The Court therefore sees no reason to allow the
continuance of proceedings which it knows are bound ta be
fruitless ... [T]he needless continuance of litigation is an
obstacle ta [international] harmony." (P. 271, para. 58.)
"The abject of the claim having clearly disappeared, there
is nothing on which ta gi ve j udgment . " (P. 272, para. 59 . )
Those observations by this Court we~e, of course, given during the
course of proceedings on the merits. They are, however, no less
CN/CR96/3 - 36 -
applicable in principle to the exercise by the court of its incidental
jurisdiction ta indicate interim measures. Accordingly, Mr. President,
following the jurisprudence of the Court, there are a number of questions
which need ta be addressed.
noes the matter in respect of which interim measures are being
sought "continue to exist"? No, Mr. President, it does not. It is over.
As the Agent for Nigeria has said, there is at the present time no
conflict in the region.
Has the abject of the "dispute" been achieved by other means? Yes -
the matter was dealt with by the Foreign Ministers at their meeting on
16 and 17 February. They reached an agreement - they agreed upon a
cessation of hostilities. The matter is again being dealt with by the
Foreign Ministers; and will be further dealt with by the Heads of State.
Consequently (and here let me reflect the language used by the Court),
the Court "must not fail to take cognizance of a situation in which a
dispute has disappeared" for those reasons.
Does a dispute genuinely exist between the Parties? - that is, a
"dispute" as ta the matter raised on this request for an indication of
interim measures? Of course, the underlying dispute as ta the merits of e
the parties' positions regarding Bakassi still exists - but the present
proceedings are not concerned with those merita, but only with the more
limited issue arising from the localized incidents which have taken
place, and as regards that limited issue, does it any longer "genuinely
exist"? No, it does not. Indeed, it is questionable to what extent any
dispute of a kind sufficient to warrant seising this Court with a request
for interim measures ever existed: within days of the incidents in the
Atabong area, elements of the Nigerian armed forces were, on the
insistence of Cameroon, participating with members of the Cameroon armed
CN/CR96/3 - 37 ,-.
forces in joint exercises in Cameroon - very far from the behaviour one
would expect if a real and serious dispute bad erupted. The localized
incident which occurred is being resolved by discussions at the highest
levels between the States concerned, under the auspices, also at the
highest level, of a friendly third State. It would, as the court bas
acknowledged, accordingly be fully in accordance with the proper
interpretation of the Court's judicial function for it to refrain from
further action on cameroon's request.
Mr. President, is the continuation of this phase of this litigation
needless, and thus an obstacle to international harmony? Yes,
Mr. President, it is. It is needless, because ether, wholly appropriate,
procedures for resolving the issues with which Cameroon seeks to involve
the Court are in place, and are being utilized at the highest levels.
And it would be an obstacle to international harmony:
(il the conduct of this contentious phase of the litigation is
unlikely to be helpful to the Heads of State and their Foreign Ministers
during their political discussions over the coming days and weeks; and
(ii) not only that, but also fer the representatives of the two
States to be actually engages in this forensic conflict when elsewhere
political talks are taking place on the same matter can hardly be helpful
to the successful outcome of those talks.
Finally, therefore, can it be said that the abject of Cameroon's
claim bas disappeared? If- as appears to be the·case- that abject,
essentially, is the discontinuance of military skirmishes and the
prevention of their recurrence, that abject bas disappeared: the two
States, at the highest political level, are seeing to that. They have
reached an agreement "to stop all hostilities": they have agreed to the
mediation of the Head of a third State: they have agreed to further
CN/CR96/.3 - 38 -
imminent meetings of their Foreign Ministers and their Heads of States.
There is accordingly nothing left for the Court, consistently with the
integrity of its judicial function, tc give judgment on.
And if, as Nigeria submits would be proper, the court concludes that
it would not be appropriate for it tc indicate any interim measures, what
losa would this involve for Cameroon? Given that current discussions at
the highest levels are taking place between the two States, Cameroon bas
there the proper forum for pursuing whatever goals it seeks, at the
political level. Restraint by the Court in indi~ating interim measures
would harm no actual Cameroon interest, and would be more likely than
otherwise to enable the respective Heads of States, under the auspices of
a third friendly Head of State, to resolve whatever may still need
resolving.
For these reasons, Mr. President and Members of the Court, Nigeria
submits that Cameroon's request for an indication of interim measures no
longer serves any purpose, and that accordingly the proper course for the
Court to take is to dismiss Cameroon's request.
The Court is witbout jurisdiction to adjudicate on Cameroon's Reguest
I should like new, Mr. President, to turn to the question of the
Court's jurisdiction.
As the Court will know, Nigeria has submitted a number of
Preliminary Objections to the Application originally submitted in March
1994 by Cameroon. The first is that the Court is without·jurisdiction tc
entertain that Application. At the appropriate time, Mr. President, when
the Preliminary Objections as a whole are considered in oral hearings
before the Court, Nigeria will have much to say on this question. For
the moment it might be sufficient, in the context of these present
proceedings, simply tc say that Nigeria maintains its objections tc the
CN/CR96/3 - 39 -
Court•s jurisdiction. Nigeria does, of course, maintain those
objections; but Mr. President, it may be more helpful to the court if l
outline, briefly, the main elements in Nigeria's argument that the Court
is without jurisdiction. And, indeed, Mr. President, there are certain
observations which have to be added to Nigeria•s Preliminary Objections
in arder to show not only that the Court is without jurisdiction over
Cameroon's main Application, but also that it is without jurisdiction
over the present Reguest for interim measures.
For immediate purposes, two things are clear. The first is that the
Court is not called upon, in the course of adjudicating upon Cameroon•s
request for interim measures, to make any definitive ruling on Nigeria's
First Preliminary Objection, and the second, is that, for purposes of
adjudicating upon a request for interim measures, the Court need only be
satisfied that it bas jurisdiction prima facie.
Mr. President, bath Cameroon and Nigeria have made declarations
under Article 35, paragraph 2, of the Court's Statute, accepting as
compulsory the jurisdiction of the Court. That fact alone, however, is
not sufficient to establish the jurisdiction of the court, either
substantively of prima facie. Even a "prima facie" requirement
establishes sorne threshold which must be passed and one which in this
case calls for a careful consideration of the declaration made by
Nigeria. ln Nigeria•s submission, when Nigeria•s declaration is
considered in the light of the facts surrounding cameroon's Application,
reliance on it as the basis for the Court's jurisdiction is so flawed in
law, and so tainted with uncertainty, that the Court cannat be said even
to have prima facie jurisdiction.
Mr. President, I do not propose tc take the Court through Nigeria's
First Preliminary Objection paragraph by paragraph. Rather I should just
CN/CR96/3 - 40 -
like to bighlight sorne of the main elements in that Objection, in arder
to demonstrate that, even in relation to the present proceedings, the
court is without jurisdiction to adjudicate upon Cameroon's request.
*
Mr. President, the first point which I should like ta address is
that of reciprocity. The essentials of Nigeria's subrnissions on this
point are simple. First, Nigeria•s declaration under Article 36 was
subject ta reciprocity; and second, in the circumstances of Cameroon's
Application, there was no reciprocity such as ta satisfy that condition.
The first of those elements, Mr. President, is clear enough. In the
relevant part of its declaration Nigeria stated that it accepted the
Court' s jurisdict.ion as compulsory "in relation to any ether .State
accepting the same obligation". Now in saying that, Nigeria was simply
repeating the terms of Article 36, paragraph 2. But Nigeria•s
declaration went on to add, "that is ta say, on the sole condition of
reciprocity". This addition is crucial.
Mr. President, "reciprocity" involves considerations of mutuality.
It requires not only that States A and B have accepted the Court's
jurisdiction to the same extent, but also that they are each equally able
to invoke their respective declarations - in effect, that they are bath
equally able to make use of the opportunity afforded by their parallel
declarations, and are bath equally at risk of proceedings being
instituted against them. By the terms of its declaration, Nigeria made
it clear that it was not accepting the Court's jurisdiction solely on the
basis of the language of Article 36, but emphasized and attached
importance to the need for "reciprocity" in its full sense.
CN/CR96/3 - 41 -
Here, Mr. President, its necessary to make a point of somewhat wider
significance and this is that the Court since the earliest days of the
Permanent court of International Justice bas consistently bad regard to
substance rather than tc form. In the second cont.entious case on which
the Permanent court gave judgment, the Mavrammatis Palestine Concessions
case, the Court said: ·"The Court, where jurisdiction is international,
is not bound tc attach to matters of form the same degree of importance
which they might possess in municipal law." (P.C.I.J., Series A, No. 2,
p. 34.) Building on that sentiment, Mr. President, the Court bas gene on
to apply it in many subsequent cases. The Court preferred substance tc
form when holding, in the Reparations case, that the formal requirements
of the "nationality of claims" rule did not exclude the United Nations
from having the right to bring an international claim; later, in the
Nottebohrn case, the Court similarly declined to apply narrow and formal
considerations of "nationality" and preferred to apply that term on the
international plane in a substantive, "genuine", manner; and similarly,
in the Aegean Sea Continental Shelf case, the court declined to decide
whether a communiqué constituted an agreement simply on the basis of its
formal characteristics, but instead looked into the substance of the
issue in the light of all the circumstances surrounding the issuing of
the communiqué. The approach of the Court, Mr. President, bas been
consistent: at the international level, it is substance, not form, that
matters.
And now, let me return to the question of "reciprocity". It is not
a term to be understood in the abstract: the Court itself said sa in the
Right of Passage case. It bas ta be given meaning in the light of its
context, and in the light of the circumstances in which it falls ta be
CN/CR96/3-.·.
- 42 -
applied. And, for the reasons I have just given, it has ta be understood
as a matter of substance, and not merely of form.
And the substance of the concept lies not in the mere fact that
State A and State B have made declarations under Article 36 which caver
the same ground; sa far as that alone might be regarded as constituting
reciprocity, it does so, at most, at a merely formal level. Substantive
reciprocity requires mutuality in the positions .of States A and B, sa
that each is in the same position vis-à-vis the ether as that ether is in
in relation to itself.
Such substantive reciprocity did not exist when Cameroon submitted
its original Application. The Court, in the Barcelona Traction case,
noted th"" need for the Court "not ta lese touch with reality". At the
time when cameroon submitted its Application, Nigeria bad no knowledge of
Cameroon•s declaration, and no reasonable means of knowing of it - a
state of affairs which Cameroon must have known, and which Cameroon did
nothing to remedy, even though, as I shall show, Cameroon bad plenty of
opportunity ta do so.
In those circumstances, Mr. President, no genuine reciprocity in
substance existed. There was no mutuality between the positions of
Cameroon and Nigeria. As a matter of practical reality, Nigeria was
unaware of any possibility of being able ta institute proceedings against
Cameroon while Cameroon, of course, was fully aware of its possibility of
bringing proceedings against Nigeria; and conversely ,· Nigeria was at
risk of having Cameroon bringing proceedings, while Cameroon was free
from any equivalent risk. Such an unbalanced situation as between
Cameroon and Nigeria can in no way be regarded as constituting that kind
of substantive reciprocity which Nigeria's declaration under Article 36
CN/CR96/3 - 43 -
stipulated as a condition for its acceptance of the Court's compulsory
jurisdiction.
And, Mr. President, that lack of reciprocity is manifest from the
circumstances; no obscure research, and no complex arguments, are needed
to demonstrate it. And just as mani fest is Nigeria's condition that
reciprocity is essential if the Court is to have jurisdiction under
Article 36. It is the manifest character of the se facts which justifies
Nigeria's submission that not only is the Court without substantive
jurisdiction over cameroon' s Applica.tion, but Cameroon cannat even
establish that the Court has a prima facie basis for jurisdiction.
Mr. President, let me new turn tc the second element in Nigeria's
submission that the Court is without jurisdiction, tc which I should like
ta draw the Court's attention. It concerna the behaviour of Cameroon.
I need to remind the Court of certain facts. Cameroon's declaration
under Article 36 was deposited with the Secretary-General on
3 March 19.94. Cameroon' s Application instituting proceedings against
Nigeria was lodged with the Court on 29 March 1994. Sa far, sa
straightforward.
Eut new we come ta the curious bit. The facts are these. It is a
,•
fair assumption that Cameroon did not just begin ta think about
depositing a declaration under Article 36 a day or two before actually
doing sa: the normal governmental processes of consultation and drafting
will have taken sorne weeks - let us say, therefore, four weeks; that is,
going back to early February 1994. Mr. President, in the course of
various contacts in the weeks before 29 March 1994 Cameroon carried on
CN/CR96/3 - 44 -
discussions with Nigeria in a normal manner, with no suggestion that
Cameroon was contemplating, let alone about ta take, such a significant
step in its bilateral relations with a friendly State as the institution
of proceedings before the Court.
Relations between two States, which have many close common ties,
naturally involve a network of regular meetings and less formal contacts
between their representatives. There were many such meetings - Nigeria
bas given details of the pattern of them in its Preliminary Objections,
and I will not repeat those details here. Yet at none of these
meetings - not even at the meeting of the Lake Chad Basin Commission
Heads of States on 21 to 23 March 1994 (and that is just days before
cameroon submitted its Application) - not even then did Cameroon sa much
as hint that it was actively taking steps ta prepare to bring Nigeria
before this Court.
Mr. President, that is not the conduct of a State conducting itself
with the degree of good faith which Nigeria is entitled ta expect. It is
not just that Cameroon did not inform Nigeria of matters which - as
cameroon well knew - were of direct and substantiel importance ta
Nigeria, but also that Cameroon, by its silence when it could have been
expected to speak, knowingly misled Nigeria as to the true nature of
Cameroon's view of its relations with Nigeria. In the very context with
which we are at present concerned (namely, the ·network of relationships
to which declarations under Article 36 give rise) this Court (in the
Military and Paramilitary Activities case} "has emphasized the need in
international relations for respect for good faith and confidence in
particularly unambiguous terms". No evidence of that respect is ta be
found in Cameroon's conduct in this matter.
CN/CR96/3 - 45 -
FUrther, and perhaps just a different aspect of the same behaviour,
if we assume- and at the present time this is only an assumption.for
purposes of argument - that by virtue of its declaration Cameroon thereby
acquired a right tc institute proceedings against Nigeria, then the
surreptitious way in which Cameroon set about making its declaration and
subsequently acting on it against Nigeria amounted tc an abusive exercise
of that right. Again, the secrecy surrounding Cameroon's behaviour on
this matter, at least as regards Nigeria, is manifest from the publicly
known timing of Cameroon's declaration and Application, taken together
with the equally publicly known calendar of meetings at which
representatives of the two States were present. That behaviour is
accordingly such as to deny tc Cameroon's invocation of the optional
clause declarations even a prima facie basis for the court's
jurisdiction.
*
Mr. President, the final brief element tc which I should like to
draw attention, concerna sorne observations about the very limited
relevance which the Right of Passage case (I.C.J. Reports 1957) bas for
the question of jurisdiction in relation ta Cameroon's Application of
1994. In that case the Second and Fourth Preliminary Objections raised
by India bad certain apparent similarities with the First Preliminary
Objection raised by Nigeria.
Mr. President, a first point can be made very briefly. Nowhere in
its Judgment on those Indian Objections did the court address questions
of good faith or abuse of rights; those terms do not appear in the
relevant paragraphs of the Judgment. This is not surprising: the facts
CN/CR96/3 - 46 -
in that case did not reveal the same pattern of dealings between the
parties as is evident in respect of Nigeria and Cameroon in February and
March 1994.
A second point can be equally briefly made. India's declaration made
a point of expressly stating that it took effect "as from today's date"
(that is, of course, as from the date of the Indian declaration): this
was a feature of the declaration ta which the Court drew attention
(p. 146). Nigeria's declaration contains no such statement.
There is a third point, also to be mentioned briefly. The Court did,
albeit very briefly, deal with reciprocity issues. Nowhere, however, in
its brief treatment of the issue, did the Court look closely at those
aspects of the notion of substantive reciprocity which are central to
Nigeria's objections to the Court's jurisdiction: nothing the Court said
in that Judgment runs counter ta the submissions being made in this
context by Nigeria.
My fourth and final point draws attention ta the limited basis of the
Court's decision in finding against India's contentions that Portugal bad
acted prematurely. The Court asked itself only two questions - had
Portugal acted in a manner contrary to the Statute, and had any right of
India been violated by Portugal having acted in the way it bad? On the
first question the Court found that Portugal had not acted contrary to
the Statute; and on the second it simply noted that India had not
specified what actual right bad been adversely affected, ·and that the
Court was itself unable ta discover what Indian right bad been violated.
In this context, Mr. President, Nigeria bas a number of rights which it
can identify as being adversely affected by the way in which Cameroon
acted in filing its Application - for example, let me just mention
Nigeria's right that ether States, in their relations with Nigeria, act
CN/CR96/3 - 47 -
in good faith, and that they exercise such rights as they might have
without doing so in an abusive manner.
Mr. President, at the appropriate time Nigeria will deploy its
arguments more fully on these various points, but for the Court's
immediate purposes, however, I have, I hope, said enough to indicate that
Nigeria's arguments raise serious issues. Nigeria submits that those
arguments are sufficient to demonstrate that, even.on the prima facie
basis which is relevant for the present proceedings, the Court, lacks
jurisdiction to adjudicate upon Cameroon's request for an indication of
interim measures.
Thank you Mr. President. It wou1d be, if I may suggest, for you to
invite Professer Crawford to address the Court. But perhaps that would
be best done after a break.
The PRESIDENT: I thank you very rouch, Sir Arthur, for your statement
and the hearing is suspended for a break of 15 minutes. The sitting will
resume at 12 o'clock.
The Court adjourned from 11.50 a.m. to 12.10 p.m.
The PRESIDENT: Please be seated. I now give the floor to
Professer James Crawford.
Mr. CRAWFORD: Thank you Mr. President. Mr. President, distinguished
Members of the Court, it is again an honour to appear before you.
In this short presentation, I will address sorne of the considerations
relating tc the admissibility of the cameroons request and of the
under1ying amended Application.
I need initially ta make a point about the applicable law. Under
Article 41 of the Statute of the Court, the Court has a discretion - 48 -
whether or not to indicate provisional measures. It is well-established
that the Court will not do so unless the indication is really justified.
I hope I may refer here to an observation - I have to say it is an
extrajudicial observation - of Judge Oda. Request.s for provisional
measures are intended tc be "incidental to, not coincidental with, the
proceedings on the merita of auch contentious disputes as fall within the
jurisdiction of the Court" (S. Oda, "Provisional Measures. The Practice
of the International Court of Justice" in v. Lowe & M. Fitzmaurice (eds.)
Fifty Years of the International Court of Justice, Essays in Honour of
sir Robert Jennings (Grotius, Cambridge University Press, Cambridge 1996)
_p. 554 (emphasis in original) . )
New in the present case and in relation to the present request, this
raises two distinct issues so far as admissibility is concerned. The
first concerna the requirement that the dispute should "fall within the
jurisdiction of the Court". The second concerna the requirement of
incidentality. Let me deal with these in turn.
The Requirement that the Underlying Claim should be
Prima Facie Admissible
First, as to jurisdiction, my colleague, Sir Arthur watts, has
already outlined the established requirement for an indication of
provisional measures, that there should exist instruments emanating from
the two parties which "appear, prima facie, ta afford a basis on which
the jurisdiction of the Court might be founded". I would simply wish to
observe tha.t this test must be applied ta considerations of admissibility
equally with those of jurisdiction in the strict sense. If, on a
preliminary consideration, there is no appearance that the case is prima
facie admissible, then the court ought not to indicate provisional
• 1 - 49 -
measures, any more than it should do sa if there is no appearance that
the Court possesses jurisdiction.
The Court implicitly accepted this in the Interim Measures phase of
the Nuclear Tests cases in 1973. There were i.ssues in that case bath as
ta jurisdiction and as ta admissibility. For example, there was a
question whether Australia and New Zealand, directly on the same side in
that case, had title ta sue in relation ta the rights on which they
relied, and this is more properly classified as an issue of admissibility
rather than of jurisdiction. In indicating provisional measures in the
two cases, the Court noted that it could not
"be assumed a priori that such claims fall cornpletely outside
the purview of the Court's jurisdiction, or that the [Applicant).
may not be able to establish a legal interest in respect of
these clairns entitling the Court to admit the Application"
(I.C.J. Reports 1973, p. 103, para. 23; ibid., p. 140,
para. 24).
The Court thus distinguished between issues of jurisdiction and issues of
adrnissibility, and applied the same test ta bath in the context of
provisional measures. And this is surely right in principle. An
indication of provisional measures is a forma! arder of the court, and
the Court should not issue such an arder if it is most unlikely that it
will be able ta reach the rnerits of the case. It may not be able to do
sa equally for reasons of lack of jurisdiction or inadmissibility.
One may even speculate that the reason Portugal did not seek
provisional measures in the East Timor case (I.C.J. Reports 1995, p. 90)
was a concern lest its Application was not appear prima facie admissible.
In short, the same threshold reguirement exists in relation to
admissibility as in relation to jurisdiction. And that proposition is
affirmed in leading texts on provisional measures (J. Sztuck, Interim
Measures in the Hague Court (Kluwer, Deventer, i982) pp. 244-245). It - 50 -
was not denied yesterday by Professer Pellet, as far as one could tell
amidst his torrent of dismissive propositions.
Mr. President, Members of the Court, Nigeria has in its Preliminary
Objections set out at sorne length and with reference ta the various
documents the reasons why it believes that the Parties were under a duty
ta settle all boundary disputes by means of the existing bilateral
machinery, as distinct from by unilateral and unpremeditated recourse tc
the Court. The Parties were under an obligation tc resort ta existing
mechanisms for the resolution of bilateral disputes. Tbose mechanisms
did not at the relevant time include this Court. Indeed, there was no
mention of the Court, beth because Cameroon was not at any time prier ta
March 1994 a party ta the Optional Clause, and also because there was a
mutua1 recognition that judicial machinery was not appropriate tc the
resolution of practical problems associated with the boundary.
This can be seen, for example, in the exchanges ·that followed the
Yaoundé meeting of August 1991. The Procès-Verbal of the Discussion of
Experts emanating from that meeting (NPO Ann. 52; Vol. II, p. 408) had
this tc say on the land boundary:
"Les deux parties ont constaté avec satisfaction que cette
frontière est bien définie et qu'il n'y a pas des problèmes
•
majeurs à ce niveau. Elles ont accepté le principe de
l'identification et de la densification des bornes
frontalières."
That statements did not mean there was no boundary problems at all.
The Procès-Verbal went on ta refer tc the dispute arising from the
Maroua.Declaration. And the contemporaneous Joint communiqué of the two
Foreign Ministers, after agreeing
"ta examine in detail all aspects of the matter [that is to say,
the matter of border issues] by the Experts of the National
Boundary Commission of Nigeria and the Experts of the Republic
of Cameroon ... with a view ta making appropriate
recommendations for a peaceful resolution of outstanding border
issues" (NPO, Ann. 53; Vol. II, p. 417). '·~·
- 51 -
There were outstanding border issues, especially in the area affected by
the Maroua Declaration, but these did not mean that the boundary as a
whole was in issue. The issues that were in dispute could be resolved by
the Parties on a case-by-case basis, not by converting outstanding border
problems into a single massive dispute. Subsequently the Experts did
meet, and the Nigerian aide recorded the kinds of problems that existed.
The Nigerian Party noted that:
"there were more serious problems than envisaged. The boundary
had never been properly defined on the ground. Demarcation by
the European powers ... followed natural features such as
mountain peaks, hill tops and rivera where these existed. In
sorne cases, the boundary alignment relied on vague directions,
names of villages or guest bouses which no longer exist. In
view of the inability to define the boundary on the ground,
there have been many border disputes amongst the corresponding.·
population settling along the boundary. After giving severa!
examples of these disputes, the Nigerian side proposed the need
to demarcate and survey the boundary and that this should be
undertaken by a joint team'of Nigerian and Cameroonian Experts."
(NPO, Ann. 54; Vol. II, pp. 427-428.)
In response the Cameroonian Experts noted that earlier work to that
effect had been interrupted by the Nigerian civil war, and "expressed the
wish to continue the work more so as they were in possession of all the
necessary legal instruments (NPO, Ann. 54; Vol. II, p. 428).
To summarize, the consistent position of the Parties was that for the
most part the boundary was established in principle, that there were
local difficulties in various areas which could only be resolved on the
bilateral plane and by focusing on the particular dispute.
Mr. President, this is·to be contrasted with Cameroon•s present position,
which is that there is a giant dispute affecting the whole border from
Lake Chad to the sea and beyond which can only be resolved by the Court.
It is worthwhile to recall here as it were by analogy the way in
which Cameroon had treated the express obligation under the 1982 Law of
the Sea Convention to resolve disputes as to the delimitation of the ~ 52-
maritime boundary beyond 12 miles. Articles 72 (2) and 83 (2) 'of the
1982 Convention are perfectly clear: the delimitation of exclusive
maritime zone and continental shelf are tc be effected "by agreement on
the basis of international law". And yet there was no attempt whatever
at reaching agreement on these maritime zones on the part of Cameroon
before it commenced the proceedings before this Court. As Nigeria has
shawn in its Preliminary Objections, there bas been no discussion
whatever (NPO, paras 7.6-7.17}. Nigeria first learned of Cameroon•s
position as tc the maritime zones beyond 12 miles when it received
cameroon's Memorial. Mr. President, the lodging of a Memorial before
•
this Court is an odd way to begin a negotiation!
Yet this clear failure by cameroon tc rneet the requirements of
Article 74, paragraph 1, and Article 83, paragraph 1, of the 1982
Convention is paralleled by its failure tc meet the requirernents of good
faith in negotiation in relation tc the various sectors of the land
boundary, as is demonstrated in Nigeria's Preliminary Objections (see
NPO, Chap. 2, paras. 2.6-2.36).
There is a second and related element of the admissibility of
Cameroon's claim, looked at globally and as presented by the arnended
Cameroon Application. Under Article 36, paragraph 2, of the Court•s
Statute, the Court has jurisdiction over "legal disputes"; under
Article 38, it applies the rules of international law to "such disputes
as are submitted toit". An application must indicate· "the subject of
the dispute" (Art. 40; cf. Art. 38, para. 1, of the Rulesl, and the
applicant is not permitted to go beyond the dispute delineated in the
application - as those of us who were counsel for Nauru discovered when
the Court decided Certain Phosphate Lands in Nauru (I.C.J. Reports 1992,
pp. 262-267). - 53 -
New it follows from these provisions, and from the basic principle of
consent, that the applicant State must be bound by its characterization
of a dispute. The indication of the dispute which is required by the
Statute and the Rules is not simply an indication of a set of facts, of a
state of affaira. Pleading before the Court is not merely fact pleading,
in the common law sense. The notion of a dispute is a legal notion, and
it bath depends upon and requires a process of legal characterization. A
dispute of one character as indicated in an application cannat be
transformed into a dispute of another character; conversely, if the
factual situation existing as between the parties diaclases a dispute
which is of a quite different character from that indicated in the
application, then the application is inadmissible so far as that dispute
is concerned.
New in the present case, how does Cameroon characterize the,dispute,
or ta use the language of Article 40 of the Statute, what does it
indicate the subject of the dispute to be? For this purpose it. is
necessary to look at cameroon's amended Application. When it lodged its
amendment, Cameroon claimed - and Nigeria subsequently agreed - that the
amendment was tc be treated a.s integral ta and as part of the initial
Application. There is a single amended Application, albeit that it is
formed by two documents lodged on different days. There is in
consequence only a "single case"; I am using.the language Cameroon chose
ta use in paragraph 10 of its amended Application. The dispute so
presented in this "single case" covers "the course of the boundary
between the Republic of Cameroon and the Federal Republic of Nigeria,
from Lake Chad to the sea" (this is paragraph 1 of the amended
Application, which is evidently the indication of the dispute). It also,
of course, extends out to sea ta the extent of the mutual maritime zones. - 54-
It is true that the dispute in addition covers certain consequential
matters of responsibility, but these the Court can only decide once it
bas determined the course of the boundary. If the indication as tc the
dispute between the Parties as to the whole course of the boundary is
inadmissible, the whole Application is inadmissible.
In short, Mr. President, Cameroon claims ·that there ·is a dispute as
tc the whole land boundary, that this is challenged in principle by
Nigeria, that Nigerian revanchism extends over ~.680 km, that is, about
1,000 miles in the old system. That, Members of the Court, would be
revanchism indeed.
•
But the fact is, as demonstrated in Nigeria's Preliminary Objections
(NPO, Chap. 5), that there is simply no evidence of such a dispute.
Cameroon should be held tc its description or indication of the dispute,
and its description or indication bears no relationship at all tc the
realities. There is, quite simply, no such dispute as that indicated in
paragraph 1 of Cameroon's amended Application, and for that reason alone
the Cameroon Application as amended is inadmissible.
Mr. President, Nigeria does not deny the existence of a more specifie
territorial dispute over the Bakassi Peninsula. But it says that that
dispute is not the dispute indicated, as the subject of a single case, in
the amended Application. The point can be illustrated in a number of
ways.
I take first of all the letter of the Cameroon Minister-uf External
Relations tc the Court, dated 5 February 1996, that is tc say, after the
incident of 3 February 1996. Minister Oyono referred in the first
paragraph to "the dispute between Cameroon and Nigeria, a dispute
currently before the International Court of Justice". He went on ta
refer to discussions between the Parties in attempt to restore peace - 55 -
"pending the decision of the International Court of Justice tc which the
two parties have had recourse for the peaceful resolution of this dispute
according ta law". I note in passing, Mr. President, that the two
Parties have done no such thing; the Cameroon Application as amended is
unilateral, and was initially made without any notice having been given
to Nigeria that Cameroon was a party tc the Optional Clause. But the
point I want tc make here is quite simply that the dispute before the
Court as a result of the amended·Application is not the dispute over
Bakassi. It is a dispute over the whole land boundary. And there is no
such dispute, at the leve! of principle, and there is no single dispute
•
at the leve! of detail. What there is a lengthy boundary, criss-crossed
by rivers and mountains, and populations. Part of the boundary bas been
delimited by treaty. Sorne parts of the boundary have been demarcated,
sorne have not. There are numerous problems along the boundary, sorne of
which taken alone may constitute "legal disputes" within the sense of
Article 36 of the Statute, ethers of which may not. Ta describe the
delimitation of the whole boundary as in dispute is not even prima facie
plausible. And since such a description is central to what Cameroon new
presents as its "single case", it follows that the amended Application is
not even prima facie admissible.
It is useful, Mr. President, ta indicate the sorts of real issues
which the boundary presents by referring tc one of the early boundary
survey documents, the Report of the First Stage of the Nigerian-Cameroon
Boundary Survey of May 1966 {NPO, Ann. 12; Vol. II, p. 93). That
document concerna a "little bit of boundary" which was the subject of a
particular dispute; the.dispute concerned a 2* mile sector, and the
overall stretch under consideration at that time was about 20 miles
(about 2 per cent of the boundaryl . - 56-
Mr. President, I do not want needlessly ta exacerbate the Court's
financial and staffing problems. But the nature of the real issues
between the Parties, and the obvious fact that there is no single dispute
before the Court relating tc "the course of the boundary ... from
Lake Chad to the sea", can be brought out by reference ta the
1966 Report. There the parties had agreed that an actual dispute should
be resolved by the demarcation of a section where there bad been sorne
pillars, but not enough pillars, and those that were there bad not been
maintained. The Report records that there were no motorable roads; for
most of the boundary this is still the case. It refers to the need for
•
all the equipment ta be carried by porters. It adds:
"Owing tc the nature of the alrnost virgin forest a lot of
cutting and felling had ta be done. The labour gang was grossly
under strength and it will be necessary ta have axemen as well
as cutlassmen. Machine saws in addition ta the axemen will be
necessary." (NPO, Ann. 12, p. 2; Vol. II, p. 96.)
Mr. President, there is no single dispute before the Court which
responds in any way tc Cameroon's "single case". There is a vast,
judicially unmanageable boundary, through sorne of the least tractable
country in Africa. Where there are disputes, they are particular and
various. Most of them relate to demarcation, or re-demarcation, or the
maintenance of a boundary locally recognized, or rights relating ta the
régime of the boundary, or access or transit or floods. The Court's
problems with translators will pale into insignificance - and
Mr. President I would be the last to suggest that they are not
significant - alongside its need for axemen and cutlassmen and surveyors
and valuers, and so on. The parties have always treated the boundary
areas as requiring ta be demarcated in arder tc avoid disputes (cf. the
Joint Communiqué of 14 Jan. 1982, NPO, Ann, 27; vol. II, p. 2B1;
Procès-Verbal of Discussion of Experts, Yaoundé, 27-30 Aug. 1991, NPO, ·..-
-57-
Ann. 52; vol. II, p. 405 at p. 408; Minutes of the Joint Meeting of
Experts on Boundary Matters, Abuja, Nigeria, 15-19 Dec. 1991, NPO,
Ann. 54; vol. II, p. 421 at p. 427). Demarcation is not the task of the
Court but of joint machinery established by.the parties.
r turn to the second point made by Judge Oda in the passage I quoted.
Cameroon•s request is not in~idental but coincidental
Mr. President, Members of the Court, for the reasons I have given
there is not even prima facie admissibility of "the dispute" presented by
Cameroon as a "single case" in its amended Application. But the point
•
can be taken further, and heré I refer, as I have said, tc the second
element of the passage quoted from Judge Oda with which I started:
Provisional measures proceedings are intended tc be "incidental tc, not
coincidental with" the substantive proceedings over which the Court has
jurisdiction. But Cameroon's request is coincidental, not incidental.
It sets out (presumably not just per memoriam) all that Cameroon asks the
Court to do in its amended Application. It comments (presumably not
gratuitously) on all of Nigeria's Preliminary Objections, most of which
are unrelated to Bakassi. It asserts an attempt by Nigeria aimed at the
"conquest" of the Bakassi Peninsula, thus implicitly calling on the co:urt
ta decide the case in Cameroon's faveur at this stage; one does not
conquer one's own territory. It suggests that the Court should take into
account at this stage that the preliminary objections are "without any
sound basis in law" (Request, para. 6). It calls on the Court to
determine, in a situation in which the facts are in dispute and the Court
has no means of conducting its own examination, that Nigeria engaged in
an "armed attack" on 3 February 1996 - this is apparently "without
prejudice to the merits of the dispute" (Request, para. 8)! Above all it -58 -
calls on the Court to indicate that "the Parties shall abstain from all
military activity along the entire boundary" - along all the boundary
from Lake Chad ta the sea. Professer Cot was quite clear about this
yesterday - and one should note that neither Cameroon nor Nigeria argues
that there is a boundary within the Bakassi Peninsula. No one says there
is a boundary within the Bakassi Peninsula. On the information
available, there is not even a ceasefire line. The Request mirrors the
amended Application, inflated and unresponsive to the actual dispute.
Mr. President, there was a hint in Professer Pellet's presentation
yesterday that although this may be true, Nigeria, by its behaviour at
•
the meeting held with you as President on 14 June 1994 (I.C.J. Reports
1994, p. 105), may have waived any objection. Professer Pellet referred
on severa! occasions to Nigeria's "accommodating" attitude at that
meeting. It was the only ward of praise Professer Pellet bad. But all
that happened at the meeting, as you Mr. President would be able to
testify, was that Nigeria accepted the Cameroon position that it was
amending its initial Application and continuing a single case now
extended to the whole land boundary. The question of the Court•s
jurisdiction over, or the admissibility of, tha.t amended Application was
quite obviously a separate issue. Neither question was resolved by the
"accommodating" attitude of Nigerian representa.tives. Indeed, one might
say that since the dispute as now presented by the amended Application
bears no relationship to the realities of the boundary or to any
disagreements between the parties as to particular sections of the
boundary, Nigeria had every reason to be accommodating! For the reasons
I have given the single case brought by the amended Application is not
even arguably admissible, since it refers to a single and not even
arguably existent dispute over a whole boundary. .;'
-59-
Mr. President, Members of the Court, I thank you for your attention.
Mr. President, may I ask you now to cal! upon Professer Brownlie to
continue this presentation on behalf of Nigeria.
The PRESIDENT: Thank you very much, Professer Crawford. I give the
floor ta Professer lan Brownlie once again.
Professer BROWNLIE: Thank you, Mr. President.
1. Mr. President, Members of the Court, my second task this morning
is to address certain aspects of Nigeria's title to the Bakassi
Peninsula.
••
2. It is of course Nigeria's position that the issues at large
between the two parties should be settled in appropriate bilateral fora,
and in any event, as has been pointed out, Nigeria considers that there
is an absence of jurisdiction.
3. It cannat be acceptable that an applicant State can, by a request
for interim measures, precipitate a trial - even a mini-trial - of the
merits. In any event, as a consequence of Nigeria's preliminary
objections, the merits phase of the case has been suspended.
4. In such circumstances, and in view of the constraints of time,
Nigeria would be justified in reserving its position on the issue of
title and, in forma! terms, Nigeria chooses that course.
s. However, in view of the cameroonian assertions relating ta title
it is surely helpful if the respondent State provides at ·!east
provisional indications sufficient ta raise serious questions concerning
the complacent assertions which were offered yesterday on behalf of
Cameroon. - 60-
6. Before I proceed further I would like to remind the Court of the
useful background information contained in the Introduction tc the
Preliminary Objections, paragraphs 17 tc 19.
7. Three points stand out. First, at least 90 percent of the
population of the Bakassi Peninsula consists of Efik and Efut people of
Nigeria. This population does not consist of migrants but of long
established communities. As explained in Nigeria's preliminary
objections in paragraph 8, the Bakassi Peninsula is a low-lying region
bordered on the west by the estuary of the Cross River, on the north by
the Akwayafe River, on the east by the Rio del Rey estuary, and on the
•
south by the Gulf of Guinea. The Peninsula is perhaps not really a
peninsula in strict geographical terms, since it is surrounded by
waterways and itself consists of a series of islands lying within those
surrounding waterways. The overall picture is one of many small islands
in an area criss-crossed by waterways. Sorne are relatively major, but
many are just small creeks and streams. In many places the land is so
low-lying as virtually to constitute a swamp. It is remote and
inaccessible. The vegetation is tropical, mainly low-growing, dense, and
in many places waterlogged. In arder to assist the court, Nigeria bas
placed before the Court a small booklet of photographs in arder ta give
seme general idea of the particular physical nature of the area presently
under discussion. These were taken by a Professer of Geography assisting
the Nigerian team, in November of last year.
e. secondly, the Bakassi Peninsula formed a part of the dominions
of the Kings and Chiefs of Old calabar, that is the long-established
traditional kingdoms of pre-colonial Nigeria.
9. Thirdly, the villages of the Bakassi Peninsula were administered
by the Eket Division of the former Calabar Province of Nigeria. These - 61 -
villages include the following long-established Efik villages on Bakassi,
and if r could name them and my colleague will point them on the map:
10. Atabong East; Atabong West; Ahana; Edern Abasi; Ine Odieng;
Ine Akpak; Ine Atayo.
11. Mr. President my main purpose is to develop certain legal
aspects of the Nigerian title and my main proposition is as follows.
12. Without prejudice to ether legal bases_ of title, there is
substantial evidence that, beth before independence and after, the
Bakassi Peninsula was administered as part of Nigeria, that is to say, as
part of the Eket Division of the former Calabar Province of Nigeria.
13. Furthermore, the territory like the rest of Eket Division formed
part of the Calabar Judicial District: under the customary court
institution, it was divided into two units, Atabong was administered as
part of the Okobo Customary Court area. while the rest of the villages
fell under the Efiat Mbo Customary Court which was at James Town. The
people of the Bakassi Peninsula registered for and voted in the federal
election of 1959. In that election, Mr. O. J. Eminue was elected mernber
for Eket East Constituency (which included Bakassi villages) in the
Federal parliament. In 1964, a barrister, Mr. E. I. Nkereuwem, who is
new a retired judge in the Akwa Ibom State, was also élected in the same
constituency.
14. Polling booths for the election were located at Atabong, Ahana
and Ine Odiong. Messrs. Etim Efiong Bassey and Ebi Umoh represented the
area as ward 5 in the then Okobo-oron County Council of Eket Division,
and this for the years 1960-1963 and 1964-1966, respectively. - 62-
15. Following the creation of new Nigerian States in 1967 the
administration continued under the South Eastern State, later called the
Cross River State.
16. Akwa Ibom State was created in 1978 out of the former
Cross River State and, saon after that, the Mbo Local Government
Authority of Akwa Ibom State, located within the territory of the former
Eket Division and the Akpabuyo Local Government Authority of Cross River
State. These two authorities have been engaged in an intra-Nigerian
dispute about title to Bakassi.
And, Mr. President, the existence of such a dispute of itself
constitutes cogent evidence of Nigerian sovereignty in respect of
Bakassi.
17. In such circumstances the title of Nigeria resta upon a
continuous and undisturbed exercise of sovereignty, in the form of the
practical exercise of acts of jurisdiction and administration, à titre de
souverain.
lB. Such continuous and peaceful display of state sovereignty does
not, of course, involve reliance upon prescription. The source of title
is essentially the process of the historical consolidation of title which
was the well-known formulation adopted by the distinguished Belgian
authority, and Judge of this Court, Charles De Visscher.
19. This form of analysis was adumbrated in 1953 in his classic work
Théories et réalités en droit international public, pages 244-245.
20. If I could read the English version of the relevant passages
from this work of Charles De Visscher.
21.· The heading is "Consolidation by Historie Titles", and he says - 63 -
"The fundamental interest of the stability of territorial
situations from the point of view of arder and peace explains
the place that consolidation by historie titles holds in
international law and the suppleness with which the principle is
applied. It is for these situations, especially, that arbitral
decisions have sanctioned the principle quieta non movere, as
much out of consi4eration for the importance of these situations
in themselves in the relations of States as for the political
gravity of disputes concerning them. This consolidation, which
may have practical importance for .territories not yet finally
organized under aState régime as well as for·certain stretches
of sea-like bays, is not subject to the conditions specifically
required in ether modes of acquiring territory."
And he continues,
"proven long use, which is its foundation, merely representa a
complex of interests and relations which in themselves have the
effect of attaching a territory or an expanse of sea to a given
State. It is these interests and relations, varying from one
case to another, and not the passage of a fixed term, unknown in
any event to international law, that are taken into direct
account by the judge to decide in concreto on the existence or
non-existence of a consolidation by historie titles."
22. And the passage continues
"ln this respect such consolidation differs from
acquisitive prescription properly so called, as also in the fact
that it can apply to territories that could not be proved tc
have belonged formerly tc another State. It differs from
occupation in that it can be admitted in relation to certain
parts of the sea as well as on land. Finally, it is
distinguished from international recognition - and this is the
point of most practical importance - by the fact that it can be
held tc be accomplished not only by acquiescence properly sc
called, acquiescence in which the time factor can have no part,
but more easily by a sufficiently prolonged absence of
opposition either in the case of land, on the part of States
interested in disputing possession or, in maritime waters, on
the part of the generality of States."
That is from the Corbett translation of 1957, pages 200-203.
23. Mr. President, this lack of opposition on the·part of ether
states is a common element in the process of historical consolidation of
title, providing not a source of legitimacy (as in the case of
prescription) but a super-added confirmation or guarantee of a
pre-existing legitimacy. Renee the evidential value of acquiescence on - 64-
the part of ether states, and especially those states which ex post facto
cla·im a legal interest.
24. And the significance of these elements of silence, acquiescence
and general toleration was also given prominence in another influential
work by Charles De Visscher: Problèmes d'interprétation judiciaire en
droit international public, published in 1963, pages 168-181.
25. Mr. President, if I can return to the circumstances of the
present case, it was Cameroon which, sorne 13 years after the independance
of Nigeria, took the decision to challenge the territorial status quo in
the Bakassi Peninsula.
26. And it is Cameroon which is in the disadvantaged procedural
posture of having to challenge a legal status quo based upon the
historical consolidation of title reinforced and confirmed by Cameroonian
silence and acquiescence.
27. The present difficulties have their origins in the attempts by
Cameroon in the mid-seventies to give administrative reality ta recently
conceived ambitions in Bakassi. Such ambitions were fuelled not by
fishing or farming but by interests in offshore ail.
28. The various elements of weakness in the claims of Cameroon need
not be subjected a.t this stage to exhaustive examina.tion. It will
suffice to point to the serious deficiencies in the evidence of
effectivités which is included in the Memorial of Cameroon.
Inadequate and unreliable evidence of Cameroonian effectivités
29. The evidence presented in the Memorial of alleged Cameroonian
effectivités is beth inadequate in substance and unreliable otherwise.
Pages 179 tc 184 are apparently devoted ta effectivités but no detail is
given, and no documentary or ether evidence is supplied. Pages 486 to489 also relate in principle to this subject but in fact on.ly six pages
in that part of the Memorial are actually devoted to the subject.
30. The material is to a great extent unsupported by documentary or
other evidence. The presentation is also massively self-serving,
ignoring the history of the area completely.
31. Of particular significance is the fact that what is presented as
evidence is not of Cameroonian title but of the efforts made by Cameroon
to change the statua quo. These efforts include in particular a Decree
of 1973 which purported to change the traditional names of villages in
the region. And thus, for example, Atabong West was alleged to become
Idabato I and so forth.
32. The fact is, Mr. President, that the evidence offered to prove
the existence of cameroonian effectivités is deeply flawed. Moreover,
not only is it flawed, but it confirma that it was only in 1973 that
cameroon had decided to prepare the beginnings of attempts to infiltrate
the Bakassi Peninsula.
The role of uti cossidetis
33. Mr. President, I shall end this brief exposition by recalling
that the principle uti possidetis was intended to avoid disturbance of
the territorial status quo as a result o:E decolonization. This princip1e
does not, of course, rule out disputes after independence precisely in
those cases in which there is a serious doubt as to the character of the
statua quo at the time of independence. And, as Judge Ajibola pointed
out in his separate opinion in the Libya/Chad case, elements of effective
occupation could still be taken into consideration {I.C.J. Reports 1994,
p. 89, para. 128). - 66-
Mr. President that terminates the excursion into sorne of the issues
of title and I now ask yeu to give the floor to the Co-Agent of Nigeria,
to present the final speech this morning.
The PRESIDENT: Thank you, Professer lan Brownlie and I now give the
floor to H.E. Chief Richard Akinjide, Co-Agent.
H. E. Chief Richard AKINJIDE: Mr. President·, distinguished Members of
the Court, it is a very great honour for me to address this Court. I
shculd now like to close the first round on behalf of the Government of
the Federal Republic of Nigeria by making a few commenta on specifie
subjects.
A. The Cameroonian map
Al. The first point relates to the map which Cameroon presented to
the Court at yesterday's hearing, a copy of which is to be found in·the
cameroonian file at page 8.
A2. Mr. President and distinguished Members of the court, that map is
defective on two counts. First, as we have already told the Court,
Cameroon bad no military positions in Bakassi prier to 3 February 1996
and has none now. The Cameroonian map claims that the eight sites
towards the western edge of Bakassi shawn on it by the red circles were
Cameroonian positions since occupied by the Nigerian troops. This is
simply untrue. I repeat, Mr. President, that prier to 3 February 1966
Cameroon bad no military positions in Bakassi. That is a fact.
A3. My second point is this. Those representing Cameroon yesterday
described their map as a sketch-map. So indeed it is. The
simplifications it makes include the fact that it representa the Bakassi
Peninsula as a solid landmass. If, Mr. President, you will look at the
map behind me, a copy of which is contained in the pocket at the front of - 67-
the Nigerian file, yeu will see at once that the Peninsula is riddled
with creeks and waterways. In particular, there are the waterways
through the centre cf the Peninsula. These are creeks which are passable
by boat. Mr. Daniel is painting them eut now on the map behind me.
These creeks are important, because they are the means by which
cameroonian water-borne raiders burst unawares upon the Nigerian
positions at neon on 3 February 1996 and bombarded our positions from
their vessels.
A4. The Court should understand that although the Rio del Rey might
seem like an alternative route, it suffers from two drawbacks. First,
the cameroonian raiders would have been readily visible tc Nigerian
vessels in the sea and would thus have lest the advantage of surprise.
Second, the Rio del Rey, despite its width, is difficult ta navigate
because of strong currents and submerged boulders.
B. Nigeria•s contribution to international peace-keepina efforts
El. Mr. President and distinguished Members of the Court, in these
proceedings Cameroon is trying to depict Nigeria as a powerful bully.
Sorne very strong words have been bandied about. The facts must not be
distorted. The first and foremost fact in this regard is that throughout
the 35 years of its existence Nigeria has always bad, and continues tc
have, excellent diplomatie relations not merely with Cameroon but with
every one of the six neighbouring States. Nigeria bas never harboured
irredentist claims against any of them and harbours no irredentist claim
against Cameroon. Bakassi is part of Nigeria, and as you will have seen
from the remarks of learned counsel, Sir Arthur Watts, Professer Crawford
and Ian Brownlie, Nigeria makes that assertion for excellent reasons of
international law. - 68-
B2. I hope it will not really be necessary for me to remind the
Court, Mr. President, that contrary to the misleading impression Cameroon
labours ta create, Nigeria also has one of the strongest records of any
African State for its support of international peace-keeping efforts. In
Africa itself, Nigeria has provided (and in sorne cases continues tc
provide) peace-keeping contingents in Liberia, Sierra Leone, Zaire,
Tanzania, Rwanda, Somalia, Mozambique and Angola. Nigeria was a key
supporter for the Front Line States against the former apartheid South
African régime. Further afield, Nigerian peace-keepers have been active
in countries such as Lebanon, Kashmir and Bosnia. Nigeria bas provided
distinguished judges ta this Court, whose jurisdiction, duly invoked,
Nigeria continues tc accept. Nigeria bas served as President of the
security Council. In summary, Mr. President, Nigeria bas since
independence been a respected member of the international community, bas
played its part in preserving peace internationally, and continues to do
so untill today. Nigeria takes pride in this record, which Cameroon
itself through Ambassador Engobas acknowledged. It is Cameroon's
suggestion that what Nigeria has gained on the swing it will now try ta
lose on the roundabout. Paul Engo and I, representated our respective
countries on the Law of the Sea for many years and in December 1982 he
bad the honour of signing the Convention and the Final Act on behalf of
Cameroon and I also bad the honour of signing that Convention and the
Final Act on behalf of my country. I refer to this because
Professer Crawford bas made references ta the Law of the Sea in 1982. - 69-
C. Administration of Bakassi from Cal&bar
A further example of Cameroon's lack of frankness with the Court is
to be found in the fact, to which Professer Brownlie bas alluded, that
there is a· considerable body of evidence to prove that for a very long
time Bakassi bas been administered from calabar, as an integral part of
the Federation of Nigeria. I can only regret the fact that the
representatives of Cameroon have not considered it part of their duty to
the Court to make at least a passing mention to this very substantial
body of evidence.
D. Niqeria's latter to the Court of 16 Febrva&y last
.Mr. President, distinguished Members of the Court, at yesterday•s
hearing a considerable amount of time was devoted to the letter Nigeria
wrote to the Court on 16 February 1996, and ta the subject of the
elections they have considered it appropriate to stage in Bakassi. r do
not wish ta take up much of your time, Mr. President, with such issues
which are totally peripheral to the questions you are new called upon to
decide. I confine myself ta observing that on this subject, as on many
ethers, the Cameroonian attitude is wholly lacking in realism. In the
event, according ta the figures Cameroon supplied yesterday under Tab H
of their dossier which was supplied ta the Court, Cameroon managed ta
fill sorne 75 seats with the votes of 163 persans, making each councillor
the representative of slightly more than two votera - this in a peninsula
inhabited by more than 87,000 persans! What a great. hamage ta democratie
norms.
E. Conclusion
El. Mr. President, we have demonstrated that our Preliminary
Objections are ta be taken very seriously indeed. We have explained that
the Cameroonian claims about Nigerian aggression are the reverse of - 70-
reality. We have shawn that our relations .with cameroon nevertheless
remain good and fraternal, despite part.icular difficulties. The
ceasefire is holding and will continue to hold if Cameroon conforma its
behaviour ta the requirements of good neighbourliness.
E2. Mr. President and distinguished Members of the Court, the
position of Nigeria bas not changed dawn the years. It wishes for and
has excellent relations with all its neighbours. It is at peace with all
of them and provokes none of them. Nigeria believes that the beat way ta
make progress and to preserve pea.ce is ta avoid adversarial conduct and
pursue dialogue in the bilateral and regional forums which are the only
cnes that can defuse this situation. Mr. President, given the strong
feelings that exist in bath countries, the way forward will be slow and
it will be difficult. Proceedings in this Court, however, are neither
appropriate nor constructive, with great respect to the Court. The only
way forward is dawn the difficult but essential path of dialogue,
dialogue between neighbours and indeed dialogue between brothers.
E4. Mr. President, Nigeria entrusts the issues in this Application
for interim measures to the decision of the Court in the knowledge that
its case has been beard with courtesy, with fairmindedness and with
comprehension. It remains only to thank the Court most sincerely for
affording me and my colleagues this opportunity to present Nigeria's
case.
ES. Mr. President, distinguished Members of the Court,· this completes
Nigeria's presentation on the first round. Thank you, Mr. President.
The PRESIDENT: Thank yeu, Mr. Chief Justice. New I would like to
give the floor to Judge Oda who would like ta ask a question. - 71 -
Judge ODA: Thank you, Mr. President. I would like to ask the
following question to the Agent of Nigeria:
"Did Nigeria not think of the possibility that, if the
Declaration of acceptance of the compulsory jurisdiction of the
.... court which it made in 1965 bad not been withdrawn, sorne
specifie provisions excluding certain boundary problems might
have been added ta that declaration when the difference of views
• between Cameroon and Nigeria on the situation of the Bakassi
Peninsula became clear prier ta or around 1994?"
nouestion adressée à 1 Agent du Nigjria par M. oda
Le Nigéria a-t-il envisagé l'hypothèse selon laquelle, au
cas où sa déclaration d'acceptation de la juridiction
obligatoire de la Cour de 1965 n'aurait pas été retirée,
certaines dispositions spécifiques relatives à l'exclusion de
certains problèmes frontaliers eussent pu être ajoutées à ladite
déclaration lorsque les divergences de vues entre le Cameroun
et le Nigéria sur le statut de la péninsule de Bakassi sont
apparues, vers 1994 ou avant cette date?"
Thank you, Mr. President.
The PRESIDENT: Thank you. Now I give the floor ta the
Vice-President for the same purpose.
The VICE-PRESIDENT: Thank yeu, Mr. President. This is the question
for bath Parties:
"Are armed forces of Nigeria currently occupying portions
of the territory of the Bakassi Peninsula - territory which bath
Cameroon and Nigeria claim as legally theirs - that they were
not occupying before 3 February 1996?"
nouestion adressée aux deux Parties par le Vice-Président
Les forces armées nigérianes occupent-elles actuellement
des parties de la péninsule de Bakassi - laquelle est
revendiquée comme sienne juridiquement par le Cameroun et le
Nigéria à la fois - que ces forces n'occupaient pas avant le 3
·février 1996?"
The PRESIDENT: Thank you. I new give the floor tc Judge Guillaume.
M. GUILLAUME: Merci Monsieur le Président. La question est la
suivante : Dans sa lettre au Greffier de la Cour du 16 février 1996, - 72-
s. Exc. le ministre de la justice et procureur général du Nigéria a
précisé
"The Nigerian Government hereby invites the International
Court of Justice ta note these protesta and call the Government
of Cameroon ta arder ... Finally, the Government of Cameroon ...
should be warned ta desist from further harassment of Nigerian
citizens in the Bakassi Peninsula until the final determination
of the case pending at the fnternational court of Justice." j
En a' exprimant ainsi, le Gouvernement ·du Nigéria entend- il ou non ..
présenter à la Cour une demande reconventionnelle de mesures
conservatoires ?
"Question by Judge Guillaume to the Agent of Nigeria
In his letter ta the Registrar of the Court of 16 February
1996, H.E. the Minister of Justice and Attorney-General of
Nigeria stated:
«Le Gouvernement du Nigéria invite par les présentes la
Cour internationale de Justice à prendre acte de cette
protestation et à rappeler à l'ordre le Gouvernement du
cameroun ... Enfin, le Gouvernement du Cameroun devrait être mis
en demeure de cesser de harceler les citoyens nigérians dans la
péninsule de Bakassi jusqu'à ce que 1 'affaire en instance so.it
tranchée définitivement par la Cour internationale de Justice.»
In expressing itself in this way, does the Government of
Nigeria intend ta present ta the Court a counter-claim for
provisional measures?~
Je vous remercie, Monsieur le Président.
The PRESIDENT: Thank yeu. I would be really grateful ta the Party
or Parties concerned if they would answer the questions on Friday, during
the second phase. If this is not possible you can also submit written
answers ta the questions. ~
That concludes the first round of the oral arguments of Nigeria. The
r
Court will new adjourn and will resume its sitting on Friday morning
B March at 9 o'clock for the reply of cameroon. The sitting is closed.
The Court rose at 1.15 p.m.
Public sitting held on Wednesday 6 March 1996, at 10 a.m., at the Peace Palace, President Bedjaoui presiding