1 "ln- Corrigé ]
,..,, rrected
d
Cour internationale International Court
de Justice of Justice
LA HAYE THEHAGUE
Audience publique
tenue leardi 3 mars 1998à10 heures, au Palaisde la Paix,
sous laprésidencede Schwebel,président
en l'affairede la Frontière terrestre et maritimeentre le Cameroun etle Nigéria
(Camerounc Nigéria)
Exceptionspréliminaires
COMPTERENDU
YEAR 1998
Public sitting
held on Tuesday 3 March 1998, uam,Out the PeacePalace,
PresidentSchwebelpresiding
in the case concerning the Land andMaritime Boundary betweenCameroonand Nigeria
(Cameroon v. Nigeria)
Preliminas, Objections
VERBATIMRECORDPrésents: M. Schwebel,président
M. Weeramantryv,ice-président
MM. Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek,juges
MM. Mbaye
Ajibola,juges ad hoc
M. Valencia-Ospina, greffierPresent: President Schwebel
Vice-President Weerarnantry
Judges Oda
Bedjaoui
Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Judgesad hoc Mbaye
Ajibola
Registrar Valencia-OspinaLe Gouvernementdu Camerounest représenté par :
S. Exc. M. Laurent Esso, ministre de lajustice, garde des sceaux,
comme agent;
M. Douala Moutome, avocat au barreau du Cameroun, ancienministre,
M. Maurice Kamto, professeur à l'universitéde YaoundéII, avocat au barreau de Paris,
M. Peter Ntamark, doyen, professeur dedroit à la faculté de droitet de science politiquede
l'universitéde YaoundéII, avocat,membre de l'InnerTemple,
comme coagents;
S. Exc. M. Joseph Owona, ministre de lajeunesse et des sports,
M. Joseph Marie Bipoun Woum, professeur à l'université de YaoundéII, ancien ministre,
comme conseillers spéciaux;
M. Alain Pellet, professeurà l'universitéde Paris X-Nanterre eà l'Institutd'étudespolitiques
de Paris,
comme agentadjoint, conseil et avocat;
M. Michel Aurillac, avocat à la cour, conseiller d'Etathonoraire, ancien ministre,
M. Jean-Pierre Cot, professeurà l'universitéde Paris 1 (Panthéon-Sorbonne), vice-présidendtu
Parlement européen,avocat aux barreaux de Paris et de Bruxelles, ancien ministre,
M. Keith Highet, Esq., conseil en droit international, vice-présidentdu comitéjuridique
interaméricain de l'organisation des Etats américains,
M. Malcom N. Shaw, Barrister at Law, professeur de droit international,titulaire de lachaire
Sir Robert Jennings,à la facultéde droit de l'universitéde Leicester,
M. Bruno Simma,professeur àl'université deMunich,
Sir Ian Sinclair, Q.C.,arrister ut Law,
M. Christian Tomuschat, professeur à l'universitéde Berlin,
comme conseils et avocats;
S. Exc. M. Pascal Biloa Tang, ambassadeur du Cameroun en France,
S. Exc. Mme Isabelle Bassong, ambassadeur du Cameroun auprès desEtats membres
du Benelux, -3-
The Governrnentof Cameroonisrepresentedby:
H.E. Mr. Laurent Esso, Minister of Justice, Keeperof the Seals,
as Agent;
Mr. Douala Moutome, Member of the CameroonBar, former Minister,
Mr. Maurice Karnto, Professor at the Universityof Yaoundé II, Memberof the Paris Bar,
Dean Peter Ntarnark, Professor of Law at the Inner Temple, Barrister at Law, Faculty of Laws
and Political Science,University of YaoundéII
as Co-Agents;
H.E. Mr. Joseph Owona, Minister of Youth andSport,
Mr. Joseph-Marie Bipoun Woum, Professor at the University of YaoundéII, former Minister,
as SpecialAdvisers;
Mr. Alain Pellet, Professor at the University ofParis X-Nanterre and at the Institut d'études
politique of Paris,
as Depu&-Agent,Counsel and Advocate;
Mr. Michel Aurillac, Advocate at the Court ofAppeal, Honorary Member of the Council of
State, former Minister,
Mr. Jean-Pierre Cot, Professor at the University of Paris1 (Panthéon-Sorbonne),
Vice-President of the European Parliament,Member of the Paris and Brussels Bars, former
Minister,
Mr. Keith Highet, Esq., Counsellor in International Law, Vice-Chairman, Inter-American
Juridical Cornmittee, Organization of American States,
Mr. MalcomN. Shaw, Barrister at Law, Sir Robert Jennings Professor of International Law,
Faculty of Law, University of Leicester,
Mr. Bruno Simma, Professorat the Universityof Munich,
Sir Ian Sinclair,.C., Barrister at Law,
Mr. Christian Tomuschat, Professor at the University of Berlin,
as Counsel and Advocates;
H.E. Mr. Pascal Biloa Tang, Ambassador of Cameroon to France,
H.E. Mrs. Isabelle Bassong,Ambassador of Cameroon to the Benelux Countries,S. Exc. M. Martin Belinga Eboutou, ambassadeur,représentantpermanent du Cameroun
auprèsde l'organisation des NationsUnies,
M. Pierre Semengue, général de corps d'armée,chef d'Etat-majorgénérad les armées,
M. Robert Akamba, administrateur civil principal, chargéde mission au secrétariatgénéral
de la présidence dela République,
M. Etienne Ateba, ministre-conseiller, chargé d'affaires.à l'ambassadedu Camerounaux
Pays-Bas,
M. Ernest Bodo Abanda, directeur du cadastre, membre de la commissionnationale des
frontièresdu Cameroun,
M. Ngolle Philip Ngwesse, directeur au ministèrede l'administrationterritoriale,
M. Thomas Fozein Kwanke,conseiller des affaires étrangères, sous-directeurauministèredes
relations extérieures,
M. Jean Gateaud, ingénieur général géographe,
M. Bienvenu Obelabout, directeur d'administrationcentrale, secrétariat général dlea
présidencede la République,
M. Marc Sassen, avocat et conseiljuridique, La Haye,
M. Joseph Tjop, consultantà la société d'avocats ignard Teitgen Grisoni et associés, chargé
d'enseignementet de recherche à l'universitéde Paris X-Nanterre,
M. Songola Oudini, directeur/administratiocnentrale au secrétariatgénérle la présidencede la
république
comme conseillers;
Mme Florence Kollo, traducteur-interprèteprincipal,
comme traducteur-interprète;
M. Pierre Bodeau, attaché temporaired'enseignementet de recherche à l'universitéde
Paris X-Nanterre,
M. Olivier Corten, maître de conférencesà la facultéde droit de l'universitélibre de Bruxelles,
M. Daniel Khan, assistantà l'universitéde Munich,
M. Jean-Marc Thouvenin,maître de conférences àl'universitédu Maine et à l'Institut d'études
politiques de Paris,
comme assistants de recherche;H.E. Mr. Martin Belinga Eboutou, Ambassador, Permanent Representativeof Cameroon to the
United Nations Organization,
Lieutenant General Pierre Semengue,Chief of Staff of the Armed Forces,
Mr. Robert Akamba, Principal Civil Administrator,chargéde mission, Secretariat of the
Presidency of the Republic,
Mr. Etienne Ateba, Minister-Counsellor,Chargé d'affaires a.i. at the Embassy of Cameroon
to the Netherlands,
Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, Member of the National Boundary
Commission of Cameroon,
Mr. Ngolle Philip Ngwesse, Director at the Ministry of TerritorialAdministration,
Mr. Thomas Fozein Kwanke, Counsellor in ForeignAffairs, Deputy Director at the Ministry of
Foreign Relations,
Mr. Jean Gateaud, Ingénieurgénéral géographe,
Mr. Bienvenu Obelabout, Director of Central Administration,Secretariat of the Presidency of the
Republic,
Mr. Marc Sassen, Advocate and Legal Adviser, The Hague,
Mr. Joseph Tjop, Consultant at the Civil Law Firm of Mignard Teitgen Grisoni and Associates,
Senior Teaching and Research Assistant at the University of Paris X-Nanterre,
Mr. Songola Oudini, DirectorICentralAdministrationat the General Secretariat of the Presidency
of the Republic,
as Advisers;
Mrs. Florence Kollo, Principal Translator-Interpreter,
Mr. Pierre Bodeau, Teaching and Research Assistantat the University of Paris X-Nanterre,
Mr. Olivier Corten, Senior Lecturer at the Faculty of Law, Université librede Bruxelles,
Mr. Daniel Khan, Assistant at the University of Munich,
Mr. Jean-Marc Thouvenin, Senior Lecturer at the University of Maine and at the Institut d'études
politiques of Paris,
as Research Assistants,M. Guy Roger Eba'a,
M. Daniel Nfan Bile,
commeresponsables de la communication;
Mme René Bakker,
Mme Florence Jovis,
Mme Mireille Jung,
commesecrétaires.
Le Gouvernement du Nigéria estreprésenté par :
S. Exc.M. Alhaji AbdullahiIbrahim, OFR, SAN, honorableAttorney-General de la Fédération w
et ministre de lajustice,
commeagent;
M. Richard Akinjide,SAN,
commecoagent;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., professeur de droit international publicversité
d'Oxford,titulaire de la chaire Chichele, membre du barreau d'Angleterre,
Sir Arthur Watts, K.C.M.G., Q.C.,membre du barreau d'Angleterre,
M. James Crawford, S.C., professeur de droit internationaluniversitéde Cambridge, titulaire
de la chaire Whewell,membre du barreau d'Australie,
commeconseils et avocats;
M. Timothy H. Daniel, associé, membredu cabinet D. J. Freeman de la City de Londres,
M. Alan Peny, associé, membredu cabinet D. J. Freeman de la City de Londres,
M. David Lerer, Solicitor,membre du cabinet D.. Freeman de la City de Londres,
M. Christopher Hackford,Solicitor, membre du cabinet. J. Freeman de la City de Londres,
Mme Louise Cox, Solicitor, membre du cabinet D. J. Freeman de la City de Londres,
commeSolicitors;
M. A. H. Yadudu, conseiller spécial duchef de 1'Etatpour les questionsjuridiques,
M. A. Oye Cukwurah, membre de la commission nationaledes frontières,Abuja,Mr. Guy Roger Eba'a,
Mr. Daniel Nfan Bile,
as CommunicationsSpecialists;
Mrs. Renée Bakker,
Mrs. Florence Jovis,
Mrs. Mireille Jung,
as secretaries.
The Governrnentof Nigeria isrepresentedby:
H.E. Mr. Alhaji Abdullahi Ibrahim,OFR, SAN, the Honourable Attorney-Generalof the
Federation and Ministerof Justice
as Agent;
Mr. Richard Akinjide, SAN,
as Co-Agent;
Professor Ian Brownlie, C.B.E., Q.C.,F.B.A., Chichele Professor of Public International Law,
Oxford, Member of the International Law Commission, Member of the English Bar,
Sir Arthur Watts, K.C.M.G., Q.C.,Member of the English Bar,
Professor James Crawford,S.C., Whewell Professor of International Law, Universityof
Cambridge, Member of the International Law Commission, Memberof the Australian Bar,
as Counsel and Advocates;
Mr. Timothy H. Daniel, Partner, D. J. Freeman of the City of London,
Mr. Alan Perry, Partner, D. J. Freeman of the City of London,
Mr. David Lerer, Solicitor,D. J. Freeman of the City of London,
Mr. Christopher Hackford, Solicitor,D. J. Freeman of the City of London,
Ms Louise Cox, Solicitor, D. J. Freeman of the City of London,
as Solicitors;
Professor A. H. Yadudu, Special Adviser to the Head of State on Legal Matters,
Professor A. Oye Cukwurah, National Boundary Commission, Abuja, - 10-
M. 1.A. Ayua, directeur général, NIALS,
M. L. S. Ajiborisha, général debrigade, directeur des opérations,DHQ,
Mme Stella Omiyi, directeur, direction du droit internationalet comparé, ministère féal la
justice,
M. K. Mohammed, conseillerjuridique, NSA,
M. Jalal A. Arabi, conseillerjuridique du secrétairedu gouvernement de laFédération,
M. M. M. Kida, sous-directeur,ministèredes affaires étrangères,
M. Alhaji A. A. Adisa, directeur adjoint du service cartographique, ministère fédéral de
l'équipementet du logement, Abuja,
M. P. M. Mann, chargé d'affairesà l'ambassadedu Nigéria, La Haye,
Mme V. Okwecheme, conseiller àl'ambassade du Nigéria, La Haye,
M. Amuzuei, conseillerà l'ambassadedu Nigéria,La Haye,
commeconseillers;
Mme Coralie Ayad, membre du cabinet D. J. Freeman de la City de Londres,
commesecrétaire. - 11-
Professor 1.A. Ayua, Director-General, NIALS,
Brigadier General L. S. Ajiborisha, Director of Operations, DHQ,
Mrs. Stella Omiyi, Director, International and ComparativeLaw Department, Federal Ministry of
Justice,
Mr. K. Mohammed, Legal Adviser, NSA,
Mr. Jalal A. Arabi, Legal Adviser to the Secretaryto the Governmentof the Federation,
Mr. M. M. Kida, Assistant Director, Ministryof Foreign Affairs,
Mr. Alhaji A. A. Adisa, Deputy-Suweyor, FederalMinistry of Works and Housing, Abuja,
Mr. P. M. Mann, Chargé d'affaires, Embassy of Nigeria, The Hague,
Mrs. V. Okwecheme, Counsellor, Embassy of Nigeria, TheHague,
Mr. Amuzuei, Counsellor, Embassyof Nigeria, The Hague,
as Advisers;
Mrs. Coralie Ayad, D. J. Freeman of the City of London The PRESIDENT: Please be seated. This morningwe resurnethe argument of the Federal
Republic of Nigeria and 1cal1on Professor Brownlie.
Mr. BROWNLIE:
The Court cannot determine the tripoint in Lake Chad
Thank you Mr. President. This morning 1shall complete my presentation by dealingwith
the fourth Preliminary Objection of Nigeria. This can be formulated as follows:
"The Court should not in these proceedings determine the boundary in Lake
Chadto the extentthat the boundaryconstitutesor is constitutedby the tripoint inthe
Lake."
The underpinningsof this objection have been indicated in Nigeria'swritten pleadings and *
it will sufice if 1pick out certain of the key elements.
The observations of Cameroon (pp. 75-78) asserts that the jurisprudence of the Court
sanctionsthe possibility of continuing a delimitation as far as the end-point ofthe boundary.The
Judgrnent ofthe Chamber in the case concerningthe FrontierDispute (Burkina Faso/Republicof
Mali) is representative of this trend of thinking within the Court. The relevant passage is as
follows:
"TheChamberalso considersthat itsjurisdiction isnotrestrictedsimplybecause
the end-point of the fiontier lies on the fiontier of a third Statenot a party to the
proceedings. Therights ofthe neighbouring State,Niger,are inanyevent safeguarded
by the operation of Article 59 of the Statute of the Court, which provides that 'The
decision of the Court has no binding force except betweenthe parties and in respect
of that particular case'."
The Chamber continues:
"TheParties couldatany timehave concluded anagreementforthe delimitation
of their fiontier, according to whatever perception they may have had of it, and an
agreement of this kind, although legally bindinguponthem by virtue of the principle
pacta suntservanda,would not be opposableto Niger. A judicial decision, which 'is
simply an alternative to the direct and fiiendly settlement'of the dispute between the
Parties(P.C.I.J.,SeriesA,No. 22, p. 13),merely substitutesforthe solutionstemming
directly fiom their shared intention, the solutionarrived at by a court under the
mandate which they have given it. In both instances,the solutiononly has legal and
binding effect as between the Parties which have acceptedit, either directly or as a
consequence of having accepted the court's jurisdiction to decide the case.
Accordingly, on the suppositionthat the Chamber'sjudgment specifies a point which
it finds to be the easternmost point of the fiontier, there would be nothing to prevent
Niger fiom claiming rights, vis-à-vis either of the Parties, to territories lying
the point identifiedby the Chamber." (I.C.J.Reports 1986, pp. 577-578, para. 46.)In my submissionthis trend injudicial opinion is not as decisive as Cameroon contends in these
proceedings and further that it is certainly not decisive in the present case.
In the first place, there is considerable evidence of an ambivalence in the attitude of this
Court and this is especially evident in the approach of the Court to the institution of intervention
andto Article 62 of the Statute. It is well remembered howthe Court, havingrefusedto permitthe
intervention of Italy in the LibyaIMalta Continental Shelfcase, carefully avoided a delimitation
whichoverlappedwithItalianclaimswhen thedelimitation decisionwas taken(1C.J. Reports1985,
p. 13 at pp. 24-28, paras. 20-23).
Mr. President,in my submissionthere is a compelling analogy in respect of the situation of
Lake Chad but with a key difference. Within the public order system of Lake Chad, with its
multilateral system of demarcation, the legal position of the four riparian States is directly
implicated. In contrast, the deference of the Court in the LibyaIMalta case was exclusively
preservative. In 1985the Courtrefersto: "Thelimits within whichthe Court, in order to preserve
the rights of third States,will confine itsdecisionin the present case" (I.C.J.Reports 1985,p. 26,
para. 22). In any event,there has always beena respectable body of opinion within the Court to
the effectthat Article 59 may not provide sufficientprotectionfor third States. In this connection,
Mr. President, 1would recall your expressionsof concem in the Italian Intervention case itself
"9. It is no answerto Say- as, in substance,the Court appears to Say - that
Italy'sinterestof a legal naturecannotbeaffected bythe decision in the case because,
by the terms of Article 59 of the Statute,'The decision of the Court has no binding
force except betweenthe parties and in respect of that particular case'."
And you continued:
"If that answer were good, then Article 62 would be pointless: there would
never be a case to which Article 62 should or could apply, since, by reason of
Article 59, a third State'slegal interest never can be affected by a decision in a case.
Article 59 cannot, by any canon of interpretation,be read so asto read Article 62 out
of the Statute.
.
10.The Court endeavoursto meet this evident conclusion by maintaining that
its interpretation of Article 59 actually does not render Article 62 pointless, for the
reason that,while, by the force of Article 59,the legal interest of a third State cannot
be affected by a decision in a case to which it is not a Party, such third State still has
the choice afforded by the conjunction of Articles 62 and 59 either of seeking the
proceduraleconomy of means which the former affords or the legal immunitywhich
the latter ensures. That is to say, the purpose of Article 62, in the logic ofthe Court,
apparently is not to afford third Statesthe facility of intervention in order to protect or promote an interest of a legal naturewhich may beaffected by the decision in the
case, since, by reason of Article 59, no decision of the Court can affect such legal
interest of a third State. It is merelyto allow the third State to Saveitself the burden
of subsequent,direct litigation againstthe principalParties - in the eventthat there
isajurisdictional basis for such litigation- bypermitting itto interveneintheir case,
if the Court so decides. Such an analysis reduces Article 62 to an improbable
procedural conveniencewhich neitherits terms nor its travauxpréparatoiressupport.
Itis virtually tantamount to readingArticle 62 out of the Statute."
And you concluded:
"11.Moreover, itcannotbepersuasivelymaintainedthatajudgment ofthe Court
setting out the appliedules for the division of areasof continentalshelfbetweentwo
Stateswill not even 'affect'the legalinterests of athird Statewhich laysclaimto some
of those same areas. To so maintain is to devalue the legal worth of the Court's
judgments, to which al1members ofthe internationalcommunityshallgivedueweight
as authoritative holdings of international law." (ContinentalShelf (LibyanArab
Jamahiriya/Malta),Applicationfor Permission toIntewene,Judgment, (1C.J.Reports
1984, pp. 134-135.)
Similar opinionswere expressed inthat case by Judge Sette-Camara(p. 87,para. 8l), Judge
Oda (pp. 104-105, para. 29), and Judge Jennings, as he then was (pp. 157-160, paras.27-34).
In the light of these significant expressions of opinion it comes as no surprise to find a
reflection ofsuch views in the latest edition of Rosenne'sauthoritativework onthe Court. The
relevantpassage has a particular resonancein relation to the present proceedings. Rosenne wrote:
"As a result of the attempted interventions in the Nuclear Test cases the two
ContinentalShelfcases, and above al1the non-party interventionof Nicaragua in the
Gulf of Fonseca issue, the topic had become thoroughly aired in pleadings and oral
argument, in judgments of the Court and Chamber, and in individual opinions of
judges. A formidable body of judicial opinion had developed in favour of the view
that ajurisdictional link of the acceptedkind was not needed at least in cases where
the State seekingto intervenewas notasserting a claimagainst eitherof the litigating
States, but at most wanted to protect its own rights, claims and interests against
possible prejudice arising out of the principal proceedings. Nevertheless,for other
reasons in these casesthe Court, by finding that the State seekingto intervenedid not
possess an interest of a legal nature which might be affected by the decision in the
case, never reached the point at which it would haveto take a decision on this issue.
The existenceof this trend indicates,however, thatthe forma1provisionof Article 59
of the Statute,to the effectthat 'Thedecision of the Court hasno bindingforceexcept
betweenthe parties and in respect ofthat particularcase', may notalwaysbe suficient
protection for third States, especially in disputes involving sovereigntyor sovereign
rights overportions ofthe earWs surface,in particulardisputesrelatingto overlapping
claims to maritime areas, and that situations exist in which somethingmore definite
may be required." (Rosenne, TheLaw and Practice of the IntemationaI Court,
1920-1996,3rd ed., 1997,pp. 1540-1541 .)
That is the carefülly considered view of Professor Rosenne. - 15 -
Theseconsiderationsapplybothinrelationto landterritoryandmaritimeboundary cases, and
they arecertainly no less applicable in my submissionto the régime ofCO-ripariansof a lake or
inland sea such as Lake Chad.
The demarcationof boundariesin Lake Chad, and the determinationof the related tripoints,
is in principle opposableto al1four riparian States, because what is involved is a multilateral and
institutionalpublicorder system. The fixing of tripoints forms part ofthis system. And, giventhe
nature and functions of the LCBC, al1four States have an interest in the fixing of bothtripoints.
Thetripoints in this case thus fom part of a régime whichis sui generisin legal terms. And for
this reason alone,the standardauthoritiesrelatingto the determinationof tripoints are not relevant
in this case.
The Statespartiesto the Statuteof the LCBC,otherthanNigeria and Cameroon,arethus not
"third parties"'in relation to the tripoint. They have been, and continueto be, parties to the
processes of boundary demarcation,resource management and dispute settlement, with respect to
the Lake. For Chad and Niger these issuesare not res interalios acta,but part of the multilateral
agenda deriving from the Convention and Statute.
For these reasons, the Court should notdetermine the boundary in Lake Chad to the extent
thatthe boundary constitutesor is determinedby the tripointin theLake. Whether the matter is
considered as onegoingto the Court'sjurisdiction (on the analogyofthe principle in the Monetary
Gold case, (1C.J. Reports 1954, p. 32) as applied by the Court, most recently, in the case
concerningEastTimor(I.C.J. Reports 1995,p. go),or astothe admissibilityof the proceedings(on
the analogy of cases such as the NorthernCameroonscase (I.C.J.Reports 1963, p. 32), in my
submission doesnot affectthe resultdictatedby legallogic andthe publicinterest. Thatcompletes
mypresentationthismoming, Mr. President. 1would ask youto givethe floor to SirArthur Watts.
The PRESIDENT: Thank you Professor Brownlie. Sir Arthur please.
Sir Arthur WATTS:
Thereis no disputeconcerningboundarydelimitationfrom thetripointin LakeChadto the
sea - 16-
Mr. President, Members ofthe Court, 1 should now liketo address Nigeria's fifth andsixth
Preliminary Objections.
These two objectionsare linked, in that they both concem consequenceswhich Cameroon
seeksto draw from a number ofalleged incidentsalong the boundary: both concemfacts - what
happened(if anything),where, when, with what result, andso on. First - and thisis the subject
of the fifth Preliminary Objection- Cameroon says that these incidents show that the whole
boundary is disputed by Nigeria: and then Cameroon says that they involve intemational
responsibility on the part of Nigeri- a matter to be dealt with in Nigeria'ssixth Preliminary
Objection. In relation to matters covered by both Preliminary Objections,of courseNigeria fully
reserves its position as regards legalor factual assertions made by Carneroon.
Nigeria's fifth Preliminary Objection is that there is no dispute conceming boundary
delimitationas such fromthe tripoint in Lake Chadto the sea. Theincidentsallegedby Cameroon
do not establish the existenceof anyuchdispute. Let me begin witha preliminarypoint. Nigeria
denies the existence of any dispute concerning "boundary delimitation as such". Nigeria
acknowledges,of course,that there isa problemabouttitle to theBakassiPeninsula,and also about
title to Darak and certainadjacentareas in LakeChad; and the finaloutcomemayaffectthe course
of the boundary in those areas. But these are not boundary disputes"as such- the disputes are
over territory, and any effects upon the boundary are secondary, and consequential. There is
therefore, Mr. President, no inconsistencybetween the formulationof Nigeria's fifth Preliminary
w
Objectionand Nigeria'sacknowledgementthatproblemsexistovertitle to Bakassiandto Darakand
certain other areas.
In this context, Mr. President, Carneroon has misreadand misrepresented Nigeria'sfifth
PreliminaryObjection. Carneroon chose'to read it as a generaldenial by Nigeriathat any dispute
existed between the two States. But that is not so: Nigeria denies the existence of a dispute
conceming the delimitationof the boundaryas such in the area in question. As to Bakassi and
Darak andadjacent areas,Nigeria acceptsthatthere isa problem, whichisbeinghandledbilaterally
'CO,paras.5.01, 5.02. and multilaterally as the case may be. This problem is not over the boundary line as such, but
rather over the underlying question of title. Consequently most of the elaborate argument which
Cameroonhas constructedin its observationsZabout the Court'sjurisprudence as to the meaningof
a "dispute" is beside the point.
Even so, two aspects of that argument, and of the Court'sjurisprudence, are relevant to
Nigeria's fifth Preliminary Objection. Oneis the Court's insistence- repeated in the Lockerbie
case as recently as last week3- on the existenceof a disputehaving to be manifest, or evaluated
objectively. As 1shallshow,the objectiverecordshows that no disputeexistsas regardsthe course
of the boundary line along its whole length: there are no opposing views of the Parties on that
matter. Second,the Court hasmade clear, and Cameroon accepts4,that an applicantcannot invent
a dispute simply by claimingthat one exists. However, as 1shall also show,that is precisely what
Cameroon is seeking to do in this case with regard to the whole course of the boundary line.
Mr. President, as the map at Tab 22 shows,the stretchof boundary between LakeChadand
Bakassi is long: it runs for some 1,000miles, or about 1,680km. In respect of that boundarythe
position canbe put very starkly. There is infact no dispute over this boundary line; there is no
dzflerencebetween the Parties as to the course of the boundary along that great distance; and
Cameroon has producedno evidencethat there is any such dispute.
Before a case may be brought to this Court there has to be a legal dispute between the
Parties. And that legal dispute must have existed at the timethe Application seekingto institute
proceedingswas filed: it is not enough fora State to create a dispute by the very act of filing its
Application and making in it some assertion with which the other State is bound to
disagree - were it otherwiseany matter could be artificially tumed into a "dispute".
Yet that is precisely what Cameroonhas sought to do in this case. Before March 1994there
had beenno suggestionfromCameroonthattherewas a disputeaboutthis longstretch ofboundary.
2C0, paras.5.03-5.09.
3CaseconcemingQuestionsof InterpretationandApplication ofthe 1971MontrealConventionarisingfrom theAerial
Incidentut Lockerbie (LibArab Jamahiriyav. UnitedStates ofAmerica),Judgment of27 February1998,para.21.
4C0, para.5.05. - 18 -
There is no record of diplomatic correspondence,or bilateraldiscussions,puttingthe delimitation
of this boundary in question. Indeedthe record is quitethe opposite,as Nigeria has shown5in its
Preliminary Objection. As recently as August 1991 the Agreed Minutes - "Agreed",
Mr. President - of a Joint Meetingof Expertson Boundary Matters recordedthat "The two sides
noted with satisfaction that the land border has been well defined and that there are no major
problemsat this levelff6.Even inAugust 1993 - just sevenmonthsbefore Cameroonstartedthese
proceedings - the Agreed Minutesof a furthermeetingof that sarnebody containedno reference
to any dispute concerning delimitation ofthe land boundary7.
Only in Cameroon's amended Application hasthis hitherto stable boundaryhas been called
into question; only then did Cameroon assert that there was a dispute about its whole length, W
notwithstanding its earlier acknowledgementsthat there were no problems. It is Cameroon, not
Nigeria, which is introducing an element of instability into the Parties'common boundary.
1repeat - the allegation that this whole boundarywas in dispute was put forward only in
Cameroon's amendmentto its originalApplication. Andthat in itself isvery telling. AEtermaking
its original Applicationabout Balcassi,in relation to whichNigeria accepts thatthere is a problem
(which is being handled bilaterally), Cameroon, overtwo months later, added that the whole
boundarywas alsoindispute. So,Mr. President, when submittingitsApplicationwhichcouldhave
consequential effects for some 24 miles of boundary, Cameroonsomehow forgot that there was
apparently also a dispute over aurther 1,000miles of boundary, and so,as an afterthought,added
I
it to the case. That alone suggestsvery stronglythat Cameroon did notat the time believe there
to have been any dispute over that additional length of boundary,and that that part of the alleged
dispute is wholly unreal.
Carneroon,it should be recalled,had been preparingfor sometime to bringthis case before
this Court. On Carneroon's sidethere was no great haste. Had there been a genuinedispute over
%PO, para5.10-5.13.
%JPO, para..11,andAnn.82.
%PO, 55. - 19-
that great lengthof boundary, it simplyis not credibleto suggestthat Cameroononly remembered
itlater. The tmth is, Mr. President, that there was and isno such dispute.
Cameroonsaysthat itwas drivento amend, andextend,its originalApplicationby itsreceipt
of the Note of 14 April 1994'fiom Nigeria asserting various rights in the area around Darak, in
Lake Chad. Whatevereffect that Note might have injustifying Cameroonin seekingto addto this
litigationthe situation in Lake Chad,there is absolutelynothingin ittojustify calling into question
the whole length of the boundary south of Lake Chad and as far down as Bakassi. No,
Mr. President: that gratuitous additionwas just "litigationby afterthought".
It is, of course, unsurprising that Cameroon has been unable to show any record of an
existing dispute about the boundary as a whole, for the very simple reason that there is no
differencebetweenthe Parties on this matter. Lest there be any doubtonthis point, Mr. President,
let me be clear. As regards the stretch ofboundary behveenBakassi in the Southand Lake Chad
in the North, Nigeria has not disputed,and does not nowdispute, the course to be taken by that
boundary. That established boundary is accepted in principle by Nigeria. And since Nigeria
accepts the line of the boundary, and if - as we assume to be the case - Cameroon does so as
well, there is and there can be no disputebetween the two Statesabout the line of the boundaryas
such.
Cameroon nowargues in its observationsthatthe disputeovertitle to Bakassiand the Darak
area does not merely affect those particular areas of the common boundary, but has a more
generalized effect9:Nigeria is saidtobe "attackingtheentirelegalstructureonwhichthe boundary
delimitation between the two countries is based"I0 and "challenges the entire boundary
delimitation"". Mr. President, Cameroon is here faced with a serious dificulty. At the time it
Iodged its Application, or even its later amendment, Cameroon had no basis for alleging the
'CM,Ann. 355.
'CO,para.5.01,5.05.
''CO,para.5.13.
"CO, pam 5.14. - 20 -
existenceof a dispute alongthe whole lengthof the boundary,other than somewholly inadequate
mention of alleged border incidents(to which 1shall retum in a moment). It is now constructing
such an argument, but based only on implicationswhich it seeks to see in what Nigeria has said
subsequently: that cannot, Mr. President, establish the existence of a dispute at the time the
Application was lodged. The fact is that Cameroon, when it started these proceedings, was
inventing a dispute, and is now seeking, by invoking these later developments, to give belated
substanceto its invention. Justlastweek,this Court repeatedthat the criticaltime for questionsof
jurisdiction and admissibility is the date when an Application is filed12.
Andthere isyetafurtherdifficultyforCameroon,inthat eventhoselaterNigerian statements
do not set out the full measureof Nigeria'sarguments: and there is no reason whyNigeria should Iri
do so at this preliminary stage. Cameroon,therefore, has to invent what it thinks the Nigerian
arguments might turn out to be. In fact, Cameroon generally seems to confusethese Preliminary
Objections with arguments which are more a matter of the merits of the case". Nigeria is not
preparedto be drawndownthat path. ThisPreliminaryObjection isthat, on thefacts knownat the
timewhenCameroon'sApplicationwasjled, and evenwhen itwas amendedtwomonths later,and
on the basis of what Cameroon said in its Application and later amendment, and, so far as
permissible, its Memorial,there was in fact and in law noexisting disputeas to the delimitationof
the boundary betweenLake Chad and Bakassi.
Letmereturn,Mr. President,to Cameroonqsoriginalargument. Thiswasthatvarious alleged Y
border incidents showed that Nigeria did not accept the present boundary line.
Before looking morecloselyatthe allegedincidentsand the implicationswhichthey are said
to have for Nigeria'sacceptanceof the boundary, it mighthelp the Court if we look again at this
1,000-milestretch of boundary. Tab 22 contains the map. Down at the bottom is Bakassi,just
discemible. And running northwards as far as Lake Chad is the long stretch of boundary about
which Cameroon at first forgot.
1Case concerninQuestionsof InterpretationandApplicationof the1971 MontrealConventionarisingj-orn theAerial
Incidentt Lockerbie (LibyArabJarnahiriyav. UnitedStates ofArnerica),Judgment of27 Februaty,paras.37, 43.
I3E.g.CO,paras.5.18-5.20,5.23. - 21 -
Lookingat the boundaryas it is delineatedon a map is one thing; looking atthe terrain over
which the boundary runs is another. The nature of the boundary terrain was described yesterday
by the Agent for Nigeria. As a reminder let me put on the screen one of the maps shown
yesterday - it is at Tab 4; andnow one ofthe photographsin the Judges' folders,Tab 20, giving
atypical illustration of the kind of terrain through which the boundary runs.
In that sort of countryside, Mr. President, one cannot have the kind of clearly demarcated
boundary which is possible in other circumstances. Even so, there has been some partial
demarcationof the boundary. Evenbeforethe 1914-1918 Warthe boundarybetweenNigeria and
the German territory of Kamerun was demarcated from Yola down to the Akwayafe River by a
seriesof boundarypillars, numbered 1to 114 - this is shownon the map at Tab 15. The northern
part of that stretch of boundary is not relevant to the present boundary between Nigeria and
Cameroon,but southwardsfrom boundary pillar 64the pillars are still relevant. Those 51 pillars,
from 64to 114,cover some 190miles ofthe boundary. Therearealso someother,relativelysmall,
boundary sectorswhich weredemarcatedinearliertimes andthe boundarypillars ofwhich are still
relevant to today's boundary. But overall, Mr. President, it seems that something a little over
200 miles of the present boundary hasbeenclearly demarcatedby the erectionof boundary pillars.
1 should here add that this reference to boundary pillars may give a somewhat misleading
impression of present-day certainty, even in the limited stretches where pillars were placed.
"Misleading"because some pillars have over time fallen into decay,while others have apparently
been removed or destroyed.
But for most of its length, that is some 800 miles, the boundary is,on the ground, aatter
of established local repute. Along its length there are clusters of local settlements,on both sides
of the boundary. For long stretches the boundary runs throughareas where there is little or no
human habitation; given the difficult terrain, this is not surprising.
Mr. President, let me illustratethe pointam making. Let me take the stretchof boundaq
between boundary pillar 64 and Mount Kombon (the map is at Tab 22). The boundary there is - 22 -
delimited by the British Order in C~uncil'~which describesthe boundarybetweenwhat were then
North and SouthCameroons. Thedescriptionisinquite broadterms. But what isimportantishow
the general description in the Order fits the local terrain. On the screen now is a photographof
some of this terrain (Tab 20); look closely and near the centre you will see a man; he stands by
a floweringbush; andthat bushmarksthe boundary- the man knowsit, the localvillagers know
it: that is the reality in this sort of landscape. Another photographlso at Tab 20): again, this
shows the terrain close to where the previous photographwas taken. A third photograph (again,
it is Tab 20). It too is in the same area as the others: you see a group of huts in the centre of the
photograph. Or perhaps it is really two groups of huts, for the boundary runs throughthe gap
between them. d
That, Mr. President, is the reality of by far the greater part of this boundary. The local
communities are well aware of where the boundary runs. At timesthere have been localized
uncertainties over the boundary,but these have been settled locally, between thecommunitieson
both sides of the boundary. Thatis the best way of resolving these local dificulties -between
the communities which, through their own personal knowledge, know where the boundq runs,
what boundary makes practical sense in the iight of local circumstances, and what associated
conditions need to be established.
Giventhe terrain,the locationof settlements,andthe generally undemarcatedcharacterofthe
boundary, it is, in fact, surprising how relatively seldom boundary transgressions have occurred.
w
Given al1the surrounding circumstances,the boundary has in reality been remarkablystable and
incident-free.
Cameroon, however, asserts that border transgressionsby Nigeria have been frequent. The
inadequacyof Carneroon'sinformationabout these incidentsis a matterwhich 1will pursue further
in the context of Nigeria'ssixthPreliminary Objection. For the moment, and withoutprejudiceto
what will be said later, let me take those alleged incidents at face value.
14Nigeria(ProtectoandCameroons)OrderinCouncil,1946,Second Schedule:CM,Ann. 181. -23 -
First, 1 would remind the Court that in its amended Application-in
paragraph 17Ci)- Cameroonofferedonlya vague assertionin supportof its claimthat the whole
boundary was in dispute - just "repeated incursions of Nigerian groups and armed forces into
Cameroonianterritory, al1along the frontier between thetwo countries"": and this assertion was
wholly unsubstantiated- no place names, no dates, no details, nothing. From Cameroon's
Application, withjust that bare assertion,no implicationwhatsoever can be drawn as to Nigeria's
attitudeto the boundary.
Some details are, it is true, given in Cameroon's Memorial. First, we may put on one side
thoserelating to Bakassi or to Darak and adjacent areas: they reflect the acknowledged problems
overtitle, which are already being handledbilaterally or multilaterally as the case may be;hose
incidents are not relevant to the alleged boundw dispute along the 1,000miles of boundary
betweenBakassi and Lake Chad. We then seem to be lefi with a mere five incidentscited in the
Memorial, in apparent amplification of the wholly vague allegation in paragraph 17 Ci)of the
amended Application (1say "seem to", and "apparent",because Carneroonhas been unclear and
unspecific on the matter). One of those five happenedafrerthe filing of Cameroon'sApplication
and later amendment,and so cannotbe invokedas evidenceof the existenceof a disputewhenthe
Application was filed; and in relation to another, concerning Kontcha,the record andthe map, at
Tab 11, shows - as the Agent for Nigeria has already noted - not that there was a boundary
dispute, but the very opposite, for it showsthat Nigeria accepted the boundary in that area and
acceptedthat Kontcha wason Cameroon'sside of itI6. And so in the Memorialwe are left, as the
map at Tab 23 shows,withjust three incidentsbetween 1992 and 1994,over a 1,000-milestretch
of boundary, and told that this shows that Nigeria disputes the whole boundary! Without even
lookingat the nature of those incidents it is apparent that the implication which Cameroonseeks
to draw fi-omthemas to the whole length of the 1,000-mile boundaryis totally baseless.
ISAmendeAdpplication,para.17 @.
'%PO,para.5.7, andAnn.79. - 25 -
so it is evident that the great majority, if not all, do not reflect any inter-Statedispute as to the
boundary at all. Thus, in one case Camerooncites as a boundary incidentthe grazing of cattle by
Nigerian herdsmen in Cameroonian territory19; this is wholly irrelevantto a claim that Nigeria
disputes the boundary. And then there is an incident in the villages of Dadi and Bajezo: the
Cameroonianreportisaboutthe intrusionbyNigerianpeasantsintosomebordervillages - nothing
whatsoever to do with Nigeria as a State challengingthe boundary. And then there is item 23 in
the Repertory. What can one possibly make of this? It consists of two papers. The first, dated
22 January 1988, is solely about the wanderings of nomadic herdsmen- it too has absolutely
nothingto dowith showingthatNigeria disputestheboundary. Thesecondpaper, 7 years later(10
February 1995), is not only nearly a year afrerthe date of Cameroon'sApplication, but is both
incomplete, the second page is missing, and relatesto somethingtotally different.
Mr.President, so far as al1this is relevant at all, it is very localized stuff, often the result of
a lackof effectivedemarcation. Whatever incidentsorproblemsmay arisealongthe boundw, that
is a very differentatter fromthere being a problemoverthe boundaryitself. In no way can petty
localized incidents be seen as raising any issue of principle conceming the alignment of the
boundary as a whole. Even taking a generousviewof the extentof the boundw affected bythese
local incidents(say, 1/of a mile of boundaryfor each "incident")they concem, even if al1of them
were relevant (which they are not), perhaps some10or a dozenmiles of its length. That cannot
be taken as representing doubt or dispute as to the whole length of that 1,000-mileboundary.
Nigeria would also pointout,that local bordertrespasseshave beenas mucha matterof,say,
the Carnerooniangendarmerie crossing into Nigeria as anythinghappening in the other direction.
Ofcourse,Nigeria objects to suchtrespassesont0 itsterritory; butNigeriahas not soughtto inflate
the significance of these minor local events by suggestingthat Carneroon has thereby called the
whole boundary into question.
''CO,Ann. 1, item No. 14.
"CO, Ann. 1, item No. 33. -26 -
On the contrary,Nigeriahas consistentlytaken the positionthat localtransgressions, if they
can be established, are best dealt with locallfl through cross-border CO-operations ,o that local
conditions can be assessed and taken into account. It must be a matter of considerable doubt
whetherthis Court is an appropriatebody to engageupon such localizedmatters by way ofjudicial
enquiry, particularlywhenthe Parties continue- as Nigeria at leastdoes - to upholdthe course
of the boundary lineas it has for many years been understood to run.
There may, of course be weaknesses in the demarcation of the boundary, but Cameroon
agreesZZ withNigeria that demarcation is not a task for the Court. And any deficiency in thejoint
machineryfor supe~ising the boundaryis similarlynot a gap which itwouldbe appropriateforthe
Court to fil]. Nor indeedare these matters which are Nigeria's responsibility alone;they are as .(iI
muchCameroon'sresponsibilityasNigeria's. Cameroondoesnot claimin its amendedApplication
or in its Memorial that it has ever taken the initiative to restore or improvethe state of boundary
demarcation; and indeed,Nigeria's recordsshow,rather, thatthe initiativehas cornefromNigeria,
as in 1991when it was Nigeria whichproposedthat ajoint team of expertssurveyand demarcate
the land bounde. Cameroon has thus acquiesced in the present state of affairs regarding the
demarcation of this boundary, and cannot escape its share of the responsibiliîy for any of the
consequences.
The boundary line as presently and for many years past established on the ground is not
questionedbyeitherParty. DespiteCameroon'sassertion inits "afterthought"amendmentthatthere 'iir
is a dispute about the whole length of the boundary from LakeChadto the sea, a dispute does not
exist justbecause one Party says it does. There was, at the time of the lodging of Carneroon's
amendment,no suggestionthat there was a disputeaboutthewhole lengthof the boundary. In fact,
the Parties agreed in 1991that there were no problems, and as late as 1993, when meeting to
discuss boundary matters,no mention was madeof any dispute. At the critical time,namelywhen
"See NPO, para.5.6.
"CO, para.5.12.
=NPO, 54. -27 -
theApplicationwasfiled, orut latestwhenthe amendmentwaslodged,there simplywasnodispute
between the Parties on this matter as is still the case.
For these reasons, Mr. President and Members ofthe Court, Nigeria invites the Court to
uphold Nigeria's fifth Preliminary Objection, and declare that there is no dispute concerningthe
boundary as such from the tripoint in Lake Chad to the sea, and that that part of Cameroon's
Application, as amended, should be dismissed.
There is no basis for a judicial determinationthat Nigeria bears internationalresponsibility
for alleged frontier incursions
Mr. President, letme now turntoNigeria'ssixthPreliminaryObjection. It relatesto another
aspectof the variousincidentswhich Cameroonallegesoccurred. CamerooncontendsthatNigeria
bears internationalresponsibilityforthem. Nigeria'ssixthPreliminaryObjection isthat Cameroon
has not provided adequateor reliable information whichwould enableNigeria to respondto those
assertions of internationalresponsibility,or enable the Court to make a fair and effectivejudicial
determination of the matter.
As a preliminary point, let me revertto the question of the existence, or otherwise, of a
dispute between the Parties. Cameroonargues that Nigeria bears international responsibility for
certain incidents, and then says that Nigeria denies any such responsibility; accordingly, says
Cameroon, that shows that there is an internationaldispute between the two States24.
But that misunderstands Nigeria's position.Nigeria is at this stage simply sayingthat it has
not beentold enough aboutthe alleged incidentsto be able to decide what its response shouldbe.
More importantly,the Court too has been left in ignoranceof the facts: the Court is left without
anyjudicial or manageablestandardsto applyin makinga fair and effectivejudicial determination
of the allegations of international responsibilityraised by Cameroon. Furtherjudicial pursuit of
them would be futile.
Allegationsthat a State has incurred internationalresponsibility should not be made lightly.
Nigeria certainlydoesnottreat them lightly- but, Mr. President,Nigeria does not knowwhatthe
24C0,paras.5.29,5.30. - 28 -
allegationsreally are. Thatis the problem. A personaccused of wrongdoing is entitledto know
insufficientdetailwhatthe accusationagainsthimis. Cameroonhas signallyfailedto providesuch
information; and thereby, Cameroonhas demonstratedthat, for its part, that it is willing to treat
lightlythe serious matter of making allegationsof internationallywrongful conducton the part of
a neighbouring State.
Nigeria andthe Courtarethusfacedwith awhollyinadequatebasisonwhichto dealproperly
with Cameroon's allegations aboutborder incidents. Mr.President, let me pose two questions:
what does a State need to know before it can effectively respond to an allegation that it is
intemationallyresponsiblefor someviolation of anotherState's territory? What does a court need
to know if it is effectively to exercise itsjudicial functions in relation to such an allegation?
In thelight of an extensive internationaljurisprudence, Nigeria submits that the respondent
State,andthe Court, need, as a minimum,to knowfour things - the essential facts about what is
allegedto have occurred, when it is supposed tohave taken place, preciselywhere it is supposed
to havetaken place (especially in relation to any relevant boundary), and why the Respondent is
thought to bear international responsibility for the incident.
Cameroonsimplydoesnot meetthoseminimumrequirements. Letmespelloutforthe Court
what Cameroon's allegations amount to - first, in its original Application.
(i) This makesa generalizedassertion,in relationto Bakassi andinthe 3-monthperiod from
the end of 1993 to the date of the Application, of "an aggression by the Federal Republic of u
Nigeria, whose troops are occupying several Cameroonian localities in the Bakassi Peninsula"".
No details of any kind are given.
(ii) Second, the Application goes on to sa?, again in relation to Bakassi but this time in
relation toan unspecified period but apparently in the 1960s and 1970s,that "Nigeria ... thus
occasioned a large number of incidents"; and that after Nigeria's denial of the validity of the
ZsPara2..
26Paras8and 9. -29 -
MarouaDeclaration "frontierincidentscontinuedto occur in the disputedarea". Again, no details
of any kind are given.
(iii)Then2',third, comes an incident for which at least has some, although sparse, details:
"on 21 December 1993, Nigeria committed an aggression against Cameroon by invading the
Cameroonian localitiesof Jabane and DiamondIsland in the BakassiPeninsula". So wehave got
a date this time, andtwo locations, but little more.
(iv) Then, fourth, Cameroon refers to Nigeria's conductin "introducing armed troops on a
massive scale into the disputed Bakassi Peninsula and conducting military activities there",
apparently in the periodsince 199228.Once again, this is wholly vague and generalized.
It is solely on the basis of "the actions described in theove account of the facts" that
Cameroon alleges that Nigeria has incurred international responsibility, summarizing those
allegations in ways which add nothing of substanceor detail to what had been said bef~re*~.
And that, Mr. President, is al1the information Nigeria, and theCourt, is provided with by
Cameroon'sApplication. It is demonstrably inadequate. And quite apart from its inadequacy,1
would note that, since Nigeria has no doubt as to its title to Bakassi, the very basis for these
Cameroonian complaintsabout Nigerian activities in Bakassi is, ofcourse, without substance.
Cameroon, by its Additional Application presentedsome ten weeks later, then sought to
extendthe scope of the dispute so as to cover the boundary from Lake Chad to the sea. And in
relation to that long stretch, we are given the following informationabout alleged incidents.
(i) First, there was, apparently in some period before 1994(but we are not told when),
"initially a massive introduction of Nigerian nationals intothe disputed area, followed by an
introductionof Nigerian securityforces"30.The "disputedarea" seemstorefer to locationsin Lake
Chad, but beyond that details are once again wholly lacking.
*'Par a.
28Par a..
'paras. 118, 1920 (c)and(4.
30Par 2.. - 30 -
(ii) Second,this general statement is supplementedby further statementswhich refer to the
incursioninto Cameroonianterritory inLake Chadof "certainNigerian groups,mostlyfi~hermen"~',
followedlaterby "theNigerian security forcesM3*C . ameroon identifiesDarak as a placewhere this
sort of thing is said to have happened, and says that there are "some 20 or more places in
Cameroon"which "theNigerians areo~cupying"~~A . gain,Mr. President,Cameroon,despite some
superficialappearanceofbeing specific,is a longway from beingspecificenough forthe purposes
ofthe present litigation. Cameroonfails to makeit clear whetherthe occupationsto which it refers
are by Nigerian forces orNigerian civilians - severalreferencesto "Nigerian groups", "Nigerian
nationals" and "the Nigerians" suggest the latter. Even the places in question are unclear:
Cameroonglibly refers to "20or more" - Mr. President,doesnot Cameroonknowprecisely how V
manyplaces in what it saysis itsterritorywereaffected? Andeventhen,Camerooncanonly name
nine places, not 20.
(iii) Third, Cameroon goes on to mention "more particularly" four more places where the
presence of "Nigerian nationals" has been obse~ed~~. So, again, this appears to involve only
civilians; and in anyeventthis statement is totally vague and imprecise,as is the relationship of
theeventsat these locationsto thosereferredto earlier: moreover,three ofthem seemto have been
regardedas amistakebyCameroonandweredroppedfrom Carneroon'sMemorialw , hilethe fourth,
whichwas mentioned inthe Memorial,was the curious referenceto Kontcha, whichthe Agent for
Nigeria referredto yesterday.
(iv) Finally, Cameroonrefers to "The prolonged presence,in the Cameroonian partof Lake
Chad, of the security forces of the Federal Republic of Nigeria", and to "the illegal occupation of
those parts of Cameroon'sterritory - including the part located in Lake Chad - by Nigerian
3'Para..
32Para4.
3Para ..
"Para 6. - 31 -
nationals and military per~onnel"~~.In additionto again confusing situations involving civilians
with those said to involvemilitary personnel,these references are wholly unspecific.
Apart from the third allegation, which as 1pointed out involvedonly civilians, al1of this
relates onlyto the Darak area, where Nigeria has sovereignty(and which is in any event withinthe
mandate of the Lake Chad Basin Commission). Therefore, Mr. President,as already noted in
relationto theBakassi incidents,those alleged Darak incidentscan scarcelybe treated as violations
by Nigeria of Cameroon'sterritory.
But leavingthat aside,it is solelyon the basis of "theactionsdescribedinthe above account
ofthe facts"that Cameroonbases itsassertion ofNigeria1sinternationalresponsibilityfor itsactivity
in the Lake Chad area36:the concluding paragraphs3'summarize, withoutaddingto, those earlier
allegations. But then, Mr. President, we do get an addition. In a breathtaking sweep of the
imagination, Cameroon adds3'a reference to there having been "repeated incursions of Nigerian
groups and armed forces into Cameroonian territory, al1 along the fiontier between the two
countries, with consequent grave and repeated incidents". No evidence is given: no dates, no
details, not even a single specific allegation ofNigerian Stateactivity is madeto supportthis wild
and fa-reaching assertion.
If we pausethere, Mr. President, it reallyis impossibleto respondadequatelyto suchvague,
generalized, confused, unreliable and incomplete allegations. Succinctnessis al1very well, but
Article 38, paragraph 2, of the Rules of Court also requires that the nature of the claim must be
"specified precisely". There must be a minimum level of particularity about allegations made
against a respondent State if justice is to be done, and Nigeria submits that Cameroon, in its
Application and amendedApplication, has totally failed to meet that minimum.
3SPara7.
36Para.1.
37Paras1.516, 17 (c) an(d).
38Para17 Ci). - 32 -
Although the present proceedingshaveto be based on the terms of Cameroon's Application,
Carneroon has some latitudein expanding,in its Memorial,upon its case as already presented in
its Application. But the Memorial cannot create a new case. Yet Cameroon's Application and
Additional Applicationmadeno claimastoNigeria'sinternational responsibility inrelationto acts
occurringoutsideBakassiandLakeChad. The original Applicationdealt onlywith Bakassi; and
the request to the Court set out in paragraph 17 of the Additional Application, in referring to
Nigeria's responsibilityfor various alleged internationally unlawful act~~~r,eferred back only to
certainacts which involved Lake Chad,andin particular didnot include a referencefonvard to the
paragraphmentioningactsallegedtohaveoccurred "al1alongthe frontier",that isalongthe frontier
betweenLake Chad and Bakassi40.Bringingthese wider questionsof State responsibilityinto the v
case is an inadmissible attempt to enlarge, in a Memorial, the scope of a case as set out in the
Application.
Moreover,Mr. President,eveninrelationtothosequestionsof Stateresponsibilitywhichmay
properlybe expandedupon in the Memorial,Cameroon'sMemorial is littlebetter than the original
Application. It is still replete with impreciseand unsubstantiatedassertions of unlawful conduct
by Nigeria.
Nigeria hasalreadyreferredin somedetailtothedeficienciesof Cameroon'sMemorialinthis
respect4'. In Nigeria'sPreliminary Objections 12alleged incidentswere examined- two said to
be in Bakassi4*,five at sea in the waters off ~akassi~~,and five along the stretch of boundary
e
betweenBakassi and LakeChad44.The inadequaciesof these incidentsincludedCameroon'squite
ludicrous citation as part of its own case of an incident which had involved the death of five
39Seesubparas.17 (e)and(e3
40Subparas1.7 (e) and (e3 referredback only to subparas.17 (a)-(d), and did not refer to the next following
subparagraph, 17 .
"NPO,paras.6.10-6.13.
4%F'0,para. 6.1O.
43NP0,para.6.11.
'"NPO,para.6.12.Nigerians and for which Cameroonhad apologized and paid compensation4';the lack of facts in
support of the five alleged incidents at sea, which were not evenfollowed by diplomatic protests
by Camer~on~~;and the fact that of the five incidents cited to show the boundary betweenLake
Chad and Bakassi to be indispute,one of them occurredafrerthe filing of the Application and the
later amendment to it, and the other four - quite apart fiom their inadmissibility as regards
internationalresponsibilityat al1- were referredto inwholly inadequatedetail to serveas a basis
for a decision as to internationalresponsibility4'.
Mr. President, Cameroon has repeatedly ~aid~t~ hat there are so many border incidents for
which Nigeria is to blame that Cameroon cannot possibly give an exhaustive list of them.
Mr. President,this is acourt of law,not apoliticalrally. Allegationsof internationalresponsibility
cannotbe dealtwith - eitherbyNigeriaorbythe Court - onthesweepingand insubstantialbasis
advanced by Cameroon. If Cameroon is to invoke the international responsibility of Nigeria,
Cameroon takes upon itself also the obligation to identiQ the circumstances with the necessary
precision. If there really are so many incidentsto choose fiom, it is striking that Cameroon has
mentioned so few in its Application and Memorial, and has only given the most inadequate
information about even those few.
Cameroon'sway of proceeding is this. We get some vagueallegations in the Application,
some more in the subsequentamendment of it,a few more in the Memorial, andthen a few more
in the observations,where we are promisedthat "More examples can be given if necessary when
the Court proceeds to the meritsM4'.Mr. President, 1 have previously referred to Cameroon's
amendedApplicationas "litigationbyafterthought"; inthispresentcontextCameroonisconducting
4?W0, para.6.10.
%PO, para.6.1 1.
47NP0,para.6.12.
48E.g.CO,para.6.04.
49C0,para.6.04. -34 -
"litigationby accretion". That cannot be a permissibleway in which to pursue seriousallegations
of international responsibility.
So much, then, for this aspect of Cameroon's case as deployed in its Application (as
amended) and its Memorial. The case there set out is manifestly inadequateas a basis for fùrther
judicial considerationof questionsof State responsibility. Nothing said in Cameroon's subsequent
observations can make good that inadequacy.
Here it is necessary to develop a point which 1 touched on earlier in relation to the fifth
Preliminary Objection. Central importance has to be given to the terrns ofthe ~pplication~'; and
whileNigeria acknowledgesthat a Statehas somelatitude in expandinglaterupon what it hassaid
in its Application,in particularin its Memorial, it isin essential respectsrestrictedto the case it has W
presented in its Application". Nothing inthis Court'sdecision inPhosphates inMorocco, citedby
Cameroon5*c ,onflictswiththis approach: there theCourtwas concernedwith identifjing thenature
of a State'sclaim not in relation to any possible answer to be given to that claim as a matter of
substance, but solely in relation to the question whether it arose before the date on which the
relevant OptionalClauseDeclarationsof France andItaly took effect. Similarly,the citationsfiom
the work ofProfessorAbi-Saabare concernedwithcorrecting formalimperfectionsor deficiencies
in an Application. Moreto the point isthe Court's decision last week in the Lockerbie case,where
the Court emphasizedagainthe importance,for purposesofjurisdiction andadmissibilip, of the
date on which an Application was filed.
In accordancewithArticle 79ofthe RulesofCourt, it isafterthe submission ofthe applicant
State's Memorialthat the respondent State has to decide whether the circumstances cal1for the
making of Preliminary Objections. It can only do so, accordingly, on the basis of the record as it
"NPO, para 6.9.
"CO,para.6.08.
S3CasceoncemingQuestionsof InterpretationandApplicationofthe 1971MontrealConventionarisingfrom theAerial
Incidentut Lockerbie(Libyan Arab Jarnahiriyuv. United States of AmericJudgment of 27 Februav 1998,
paras.37, 43. - 35 -
stands at that time: that is, the Application and the Applicant'sMemorial. The Applicant can,of
course, comment in its observations on the arguments put forward in the respondent State's
Preliminary Objections. But a distinction has to be drawn between properly commenting on
Objections,and, on the other hand, substantially adding to the case which has to be answeredby
the respondent State. Just as the Memorial cannot enlargethe scopeof the dispute as specified in
the Application (although it can amplifi the case there set out), evenmore so is it improper fora
State'sobservationsto seek to enlarge the substantive scope ofthe dispute yet further by bringing
forward new circumstances not apparent from the Application and Memorial. This, however, is
what Cameroon,by introducing in its observationsyet furtheralleged incidents for which Nigeria
is said to be responsible,has done: Cameroon has sought substantiallyto add to the case set out
in its Applicationas amended, andas elaboratedin its Memorial. Thoseadditions shouldtherefore
be disregarded.
When institutingthese proceedings, Cameroon knew what was required of it - primarily,
in accordancewith the Rules, to "specifi the precise nature of the claim, together with a succinct
statementof the factsnS4.1 draw attentionto the words "specify"and "precise": the very opposite,
Mr. President, of vaguenessand imprecision. And "succinct",equally, does not permit generality
and lack of detail: it simply connotes brevity and clarity. Cameroon'sApplication should have
contained an adequately informative statement: it did not - it wasjust vague, generalizedand
incomplete.
One must also recall that at those initial stages in the proceedings the Applicant is in full
control of its own tirnetable- itdecides whether it thinks it is in possession of sufficient factsto
supporta case to put before the Court, itdecideswhether it needsmore time to gather betterfacts,
itdecides on the timing of the submission of the Application, presumably when it is fully ready,
and if that is not enough,itthen has the furthertime in whichto flesh out in its Memorial the case
advanced in the Application: Cameroon is indeedthe master of the formulation of its own case.
"Rulesof Court,Art.38.2. - 36 -
The respondent State'sposition is different: it must have a firm basis on whichto base the
decisions which,under the Rules, it has to take by a particular time, and it is onlyright that that
firm base shouldbe the stateof the record as it standsat that time. And this. President,
that additionalevidentialterialput beforethe Courtin Cameroon'sobservationsshouldnotaffect
the Court'sdecision on Nigeria'ssixth Preliminay Objection.
Nevertheless, without prejudice to that argument, some comment on therial contained
in Cameroon'sobservationsmay help the Courtto seeit in a fairperspective. Cameroon,as1noted
awhileago,has listedthismaterialinthe "RepertoryofIncidents"submittedwithitobservation^^^.
The first point to make about it is that the relationship between incidents referred to in that
Repertory and those previously referred to, however vaguely, in Cameroon'sApplications and V
Memorial is far from clear; some incidents seemclearly to be repetitions, othersare clearly new,
yet others could be one or could be the other; yet other incidents which were referredto in the
Applicationor Memorialarenownot includedintheRepertory - presumablytheyhavenow been
droppedaltogether. In short,is the Repertorycomplete,or not?If onlyroonhadgiven proper
details we might be better able to know.
However,Mr. President,despite the confusion, let us lookat the contentsofthis document.
One wouldperhaps thinkthat, in an allegedly supportingevidentialdocument submittedby a pariy
some two years after it had filed its application,that party would produce somethingworthwhile.
And ifonethoughtthat Mr. President,onewouldbe seriouslydisappointed. Virtuallyal1the items -
in the Repertory are seriouslydeficient in the information they give. In relation toNigeria's fifth
Preliminary Objection1havealready noted some irrelevantentriesin it: let me nowlook at a few
more.
Take,for exarnple,item 24: it is a brief reporthalf a page long,abouta familyland dispute,
which was al1sortedout atthe local level. Or take item 13: itis aboutthreeNigerianhunters who
entered a Cameroonian village and fired some shots what on earth has that to do with any
possibleNigerianStateresponsibility? Thesamecanbe saidof item 18,aboutsomeNigeriancattle -37 -
thieves. Andthen thereis item 10: that involvedtwo CamerooniangendarmespursuingaNigerian
cyclist and straying across the jkontier into Nigeria! And this, Mr. President, is evidence of
Nigerian intemationalresponsibility? Cameroon,Mr. President,cannotbe serious. The fact isthat
this volume,apart frombeing submittedtoo late,falls far shortof acceptablestandardsof credibiliîy
or probativevalue.
Finally,1need to revert to a point which1put beforethe Court a littlewhile ago. And this
is the distinction to be made between two different situations. On the one hand, there may be
incursions by a State'sauthorities into another State across a boundary which is in principle
accepted and which is clear on the ground.
Onthe other hand,acts bya State'sauthoritiesinterritorywhich is underitsown sovereignty
are lawhl. And Nigeria obviously bears no internationalresponsibilityfor violating Cameroon's
territorial sovereignty in respect of its presence in areas which are in law part of Nigeria. There
may, as in Bakassi, be a problem about sovereignty; but Cameroon having put in issue the
boundaryin certain areas, it isthen inappropriatefor Cameroonat the sametime to raise questions
of internationalresponsibilitysaidto arise from incursionsacross a boundary which,ex hypothesi,
it regardsas in issue. If boundaryand territorialdisputes areto be tumed simultaneouslyinto State
responsibilitycases, the disputeswill be aggravated,not resolved. Both sidesmay feeljustified in
prematurely advancing responsibility claims against the other, and the work of demarcation
commissions could tum into exercises in accountancy, assessing the consequences of prior
transgressions across the boundary which is only now being settled by them.
There is another aspect to this which 1might ventureto draw to the Court'sattention. If
pleadings in boundary dispute cases are to be loaded also with ancillary issues of State
responsibility, the Court's handlingof such cases would clearly be greatly complicated - and
probablyunnecessarilyso, sincethe Court'sfindingsontheboundary questionwill either determine
that someparticular alleged "incursionsacross the boundary"were in truth not an incursion at all,
or it willead the partiesto negotiatea settlementof the matterin the lightof the Court'sdecision
on the boundary: indeed, Mr. President, the Court might at times find it appropriateto sever the
State responsibilityissues raisedby Cameroon fromthe principalboundary issuebefore the Court, - 38 -
andto invite thePartiesto negotiatea settlementof theresponsibilityissuesinthe lightofwhatever
decisionthe Court might reachon issuesthat affect theboundq. Considerationsof effective "case
management", if 1may use such a term, suggest that the whole range of pleadings and evidence
aboutevery alleged bordertransgressionshould not haveto be deployedbythe Parties,and studied
bythe Court, until itis clearto what extent, if at all, there is still any real legaldisputeabout some
particular alleged transgression.
Overall Nigeria is in these proceedings faced with wholly inadequate and unreliable
informationabout allegedincidentsforwhichNigeria is saidto be internationallyresponsible. The
lack of particularity similarly, in Nigeria's submission, precludes theCourt fromrying out an
effective judicial examination of the issues of State responsibility and reparation raised by
Cameroon, and from making a judicial determination of those issues.
For these reasons, Mr.President, Nigeria submits that the Court should dismiss as
inadmissiblethe issues of Stateresponsibilityand reparationraised by Cameroonin the context of
the various incidents allegedto have taken place.
Mr. President, Members ofthe Court, that concludesmy statement in respect of Nigeria's
sixth Preliminary Objection. May 1 now invite you, at a time of your choosing, to cal1upon
Professor James Crawford, SC, to address the Court on Nigeria's seventhand eighth Preliminary
Objections.
Thank you, Mr. President.
The PRESIDENT: Thank you, Sir Arthur. The Court will now suspendfor 15minutes.
TheCourtadjoumed@om 11.15to 11.35a.m.
The PRESIDENT: Please be seated. Professor Crawford.
Mr. CRAWFORD:
TheJurisdiction of the Court in Relation to the MaritimeBoundary
Thank you, Sir. Mr. President, Members of the Court. -39 -
1. 1am chargedwith presenting Nigeria'sseventhand eighthPreliminary Objections,which
relatespecificallyto the maritime boundary. Theseobjectionsmay be characterizedas goingeither
to your jurisdiction over, or to the admissibility of, Cameroon's unilateralapplication for the
delimitation of themaritime zonesof the Parties. Howeverthey are characterized,they are clearly
preliminary issues. If either of these distinct objections is upheld, the consequence will be that
Carneroon'sclaim is to that extent excluded.
2. It shouldbe noted that these PreliminaryObjections are independentof those made with
respect to the case as a whole, and the land boundary,objections which have been dealt with by
my colleagues. The considerationsthat applyto the issue of the Court'sjurisdiction over the land
boundary are different fiom those that apply to the maritime boundary. It is my function now to
outline the latter.
A. The GeographicalSetting
3. (Tab 1)Before doing so, let me first illustrate the rather dramatic geographical setting
offshorethe twocountries. TheGulfof Guineaisa largeconcavegulf, about 590,000squaremiles
in area. It is theninth largestsea in the world, largerthan the Barents Sea,the Sea of Japan or the
North Sea. (Tab 9) But withinthe largerGulfof Guineathere isa smallerareajust wherethe coast
of Afiica changesfrom a predominantlynorth-southto a more westerlydirection,withinthe Bight
of Bonny, also known as the Bight of Biafra. Withinthis smaller area you can see the four gulf
Statesthat figurefor the purposesof the present case, Nigeria, Cameroon,Equatorial Guinea and
Sao Tome and Principe. Lookingat this area, which is the immediate area offshore the Bakassi
Peninsula, the position of EquatorialGuinea is obviously crucial. The islandof Bioko, formerly
known as Fernando Poo, is over 2,000 square kilometres in area, and has a population of about
90,000people, which is about20 per cent of thetotal populationof Equatorial Guinea. It contains
the national capital, Malabo, as well as the country's highest mountain. It is no mere offshore
dependency ofthe mainland; one mightas well Saythat Rio Muni, which is the mainlandportion
of Equatorial Guinea,is a dependencyof Bioko. Biokois 40 nautical miles fromthe nearest point -40 -
onthe Bakassi Peninsula. It is 19.28nauticalmiles fromCameroon,in otherwords, lessthan twice
the distance of a 12-mileterritorial sea.
4. Now the significanceof this situationto the maritime delimitationof the inner part ofthe
Gulf is unmistakeable. From the Cameroon coast one can hardly progress beyond the 12-mile
territorial sea before the influence of Equatorial Guinea, of Bioko begins to be felt. Onecan
certainly not delimit the maritime zones of Nigeria and Cameroon in the Bight of Biafra, as
Cameroon would havethis Court do, withoutfirst determiningnotjust the tripoint, but the extent
of the equitable interests, of the three States.
5. This elemental fact, this fact of the central position of Equatorial Guinea, can equally be
seenfiom the maritime boundary claimedin Carneroon'sMemorial,which you cannowsee on the
screen. (Tab 24) 1need to notethree things about Cameroon'sclaim line. The first thing is that
itwas a first! Because the very first time Nigeria saw that line, or indeed any Cameroon
continental shelf or EEZ claim line, was when it received the Cameroon Memorial. The second
thing is that, evidently enough, Cameroon'sclaim-line is depicted in a rather approximatefashion,
and on a rather approximate map. Our cartographerhas transposed the line, as best as he could,
on to a clearer and less approximate map, which you can now see on the screen. (Tab 25) And
the third thing is that Cameroon'sclaim-line,beyond PointG of the Maroua Declaration,is drawn
well to the west of any equidistance line that might conceivably be drawn simply between the
territories of Nigeria and Cameroon. It would not matter which basepoint on the coastwas used, w
whether it is to the east or Westof the Bakassi Peninsula. Whichever basepoint were to be used,
the Cameroonclaim-lineisthen placedfartotheWestofa simpleequidistancelinebetweenNigeria
and Cameroon. This is obvious. (Tab 26) It can be seenfrom lookingatthe Cameroonclaim-line
on a map from which Bioko has been temporarily removed. The Cameroon claim-lineso drawn
is obviouslyuntenable on a bilateral basis. The only reason for drawing the line the way it is, is
because of Equatorial Guinea. Despite its protestations that this is a merely bilateral boundary,
Cameroonfinds it necessaryto make a claim in relationto areas which are much closerto Nigeria
and to Equatorial Guinea than they are to Cameroon. And the reason is, obviously,Equatorial
Guinea. Unlike Cameroon, this Court cannot treat Equatorial Guinea as if it did not exist.B. The DiplornaticBackground
6. Mr. President, Members of the Court, so much for the geographical background. 1turn
to the diplomatic background.
7. Nowas Cameroondemonstratesin itspleadings,therewas considerablediscussionbetween
the Partiesasto their inshoreboundary,inthe period between1971and 1975. Thatdiscussiontook
place on the basis that al1the areas under discussion were classified by both Parties as territorial
sea. Both Parties then claimed a territorial sea of 18 miles. That was increased by Cameroonto
50 miles in 1974. Nigeria for a time also extended its territorial sea, to 30 miles. (Tab 27) The
Court can observe on the map which is on the screen at present that the radius of those 18-mile
territorial sea claimsoes clearly beyondPoint G; afortiori a 30- or 50-mileradius would do so.
This is concededby Cameroon,which saysin its Memorialthat the MarouaDeclaration "concerne
essentiellement les eaux territoriales" (CM, para. 5.66). But beyond Point G, there was and has
been no discussion, no negotiation whatever.
8. Ofcourse thePartieswere awarethat suchdiscussionswould haveto be held. Theywere
occasionallyreferred to in communiquésorin otherstatements,as somethingwhich shouldhappen
sooner or later. But suchreferencesare no substitutefor actualdiscussions,for actual negotiation,
exchange of positions, exchange of information about positions, let alone of attempts to reach
agreement. They hardly rose to the level of talks about talks.
9. And the reason for this is clear. No sooner do the Parties contemplate the need for
delimitation of areas beyond their territorial sea than they have to confiont:
fîrst, their disagreementover the status of the Maroua Declaration,
secondly, theirdispute over the Bakassi Peninsula, and
thirdly, whereverthe boundary lies between themalongthe coast, the obvious impact of
Equatorial Guinea,especiallyfor Cameroon, andthe evidentneed to involvethat State in
any discussions.
10. TheParties' awarenessofthe legaldistinctionbetweenterritorial seaandcontinentalshelf
delimitation,and of the need to involve Equatorial Guinea, goes back a long way. For example,
attheNigeria-CameroonJointBoundaryCommissionmeetingheldinJune 1971,the partiesagreed: "thatsincethe ContinentalShelvesofNigeria, CameroonandEquatorialGuineawould
appear to have a common areathe attention of the Heads of State of Cameroonand
of Nigeria should be drawn tothis fact so that appropriate action could be taken".
(Ann. NPO, 21, p. 241.)
11. Diffïculties then arose with respect to the inshore boundary,to which al1the attention
tumed. Thusthere was no referenceto the continentalshelf boundaryin thejoint declarationsand
communiquésin the period to 1975. The Cameroon Memorial refers only to meetingsheld in the
years 1971to 1975, in other words, to the period leading upto the Maroua Declaration whichon
Cameroon'sownadmissionessentiallyconcernedonlyterritorialwaters. Butitis instructivebriefly
to review the bilateral exchanges,ch as they have been, in more recent years. (Tab 28)
The matter was raised by Nigeria at the inaugural session of the bilateral Joint
w
Commission in August 1987,when Nigeria "proposed co-operationby the two countries
inhaving a properly delineated boundary",andCameroon gavea non-committalresponse
(AM. NP0 51; NPO, Anns., Vol. II, p. 388).
At the Joint Expert Meeting in Yaoundéin August 1991,Cameroon'sfocus was on the
validityof the MarouaDeclaration; after an exchangeof viewsonthe landboundary,the
Nigerian side proposed the establishment of a Gulf of Guinea Commission, witha view
to"lavalorisation,l'harmonisationet la mise en commundes resourcesde la zonepar
les dzflerentspays en vuede minimiserles risquesde conjlits". The Cameroonsidewas
receptive, suggesting that Nigeria should raise the matter with the other govemments
w
concerned with a view to holding the first meeting in Yaoundéin December 1991(Ann.
NP0 52; NPO, Anns.,Vol. II, pp. 410-411).Againtherewasnotthe slightestdiscussion
at the bilateral level of the substance of any maritime boundary beyondPoint G.
At a ministerial meeting held at the sametime, that is to Say,in August 1991,Cameroon
forrnally agreed to the establishment of the Gulf of Guinea Commission and agreedto
hold an initial expert meeting to draft its basic instrument (Ann. NP0 53;
NPO, Anns., Vol. II, p. 418).
Then, at a Joint Expert Meeting held in Abuja in December 1991,again the focus was
almostentirely on the validity ofthe MarouaDeclaration. TheNigeriandeassertedthat -43 -
"littleor no work had beenjointly undertakenby both countriesin that [thatis to Say,the
maritime]sector",andthis statementwas contradictedby Cameroon onlyby reference to
the negotiations leadingto the Maroua Declaration(Ann. NP0 54; NPO, Anns., Vol.II,
pp. 428-429). Inotherwords,the Cameroonsidedid not denythat "littleor nowork"had
been done on the maritime sector beyond PointG. It did not attempt to deny that fact.
AttheJointMeetingonBoundaryMattersheldinYaoundéinAugust 1993,Nigeriaagain
raised the issue of the Gulf of Guinea Commission. Cameroonreaffirmed its agreement
in principle to the proposal, andemphasized "the need to approachthe other prospective
member States, particularly Equatorial Guinea and Gabon". Their attitude had hitherto
been reserved (Ann. NP0 85, NPO, Anns., Vol.III, p. 842). A fürther quotation from
Cameroon: "It further added that the two delegations should arrange to meet with
Equatorial Guinea with a view to determining the tripoint between the three countries"
(ibid.). The Minutes of the Meeting record that "The two Parties then agreed that a
tripartite meeting should be convened to examine the issue of the determination of the
tripoint" (Ann. NP0 55, NPO, Anns., Vol. II, p. 458, and see the Joint Communiqué,
ibid, p. 465).
At the Second Session of the Joint Commission of Co-operation in Abuja in
November 1993, Cameroon statedthat it was ready to host the proposedmeeting of the
Gulf of Guinea Commission, involving Equatorial Guinea, in order to determine the
tripoint. That meetingwas to be convened by Cameroon beforethe end of March 1994.
(See NPO, Ex 4.)
12. This was the situation when Cameroon lodged its first Application to this Court, on
28 March 1994. That Applicationconcerned not only Bakassi but "themaritime boundary up to
the limit of themaritime zoneswhich internationallaw places undertheirrespectivejurisdictions".
1 repeat, the position at the time of the first Application was as follows. First, no substantive
discussions had been held between the Parties as to the delimitation of any maritime boundary
beyond Point G. Second, ithad been agreedthat suchdiscussionsshould beheld. Third,an initial
requirement was to involve Equatorial Guinea, either in direct trilateral talks or through the Gulf - 44-
of Guinea Commission. Four, Carneroon had agreed to convene an initial meeting of that
Commissionbythe endof March 1994,somethingit hasnever done,then orsince. And fifth,since
1975, every discussion on a bilateral level of the maritime boundary has been dominated by the
controversy over the Maroua Declaration(see e.g. NPO, 82 at p. 820). In effect it has concemed
the delimitation ofshore waters.
C. The State of the Parties' MaritimeClaims
13. Mr. President, Members of the Court, 1haveto refer at this stageto one further matter
(Tab 29), which is the current state of the maritime boundary claims of the Pa1have. As
mentioned, Cameroon claims a 50-mileterritorial You can see now on the screen the effect w
of that claim, in terms of a line drawn50miles fi-omtheCoastof Cameroon. Twothings are clear.
One,the 50-mileterritorial sea cannotstandagainst EquatorialGuinea. Andtwo, the 50-milelimit
bears no relation to Cameroon'scurrentclaim-lineintheseproceedings,norelation whatever. But
Cameroon's 50-mile territorial seaclaim calls for severalfurther observations.
14.The first such observation is this. Cameroon started this case, without notice or prior
negotiation. It claimed the delimitation,inter alia, ofthe exclusiveeconomiczone, but it does not
have anexclusive economiczone.It has madeno claimto such a zone. Youcan see on the screen
the current state of Cameroon's maritimeclaims as publicly The table is taken from the
1998edition ofthennualSummaryofAdmiralîyNoticestoMariners - youwill find it inTab 30
-
of your bundle. As you can see, Cameroonclaims a 50-mileterritorial seaand nothingelse. True,
Article 77, paragraph 3, of the Law of the Sea Convention, to which both States are parties,
confirms that "Therights of the coastal Stateover the continentalshelf do not...anyd on
express proclamation". So Cameroon as a coastal Statehas a continental shelf. But there is no
equivalent provision in the Conventionwith respect to the exclusive economiczone.ne
has to be claimed, and Cameroon hasnot claimed it. Itsking the Court to delimit what is in
law a non-existent zone.
15.Now no doubt Cameroon will say: "We can easily remedy that deficiency. We can
immediately claim an exclusive economic zone". Perhaps they will do it on Thursday, Mr -45 -
President,Members of the Court? But this is noformality; that would bea new substantiveclaim.
As the Court has rather recently had occasion to stress, "the critical date for determining the
admissibility of an applicationis the date on which it was filed" (case concerning Questionsof
InterpretationandApplicationof the 1971MontrealConvention arising from theAerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of America), PreliminaryObjections,
Judgmentof27 February1998,paras. 42-43; ibid. (LibyanArab Jamahiriya v United Kingdom),
paras. 43-44, with referenceto earlier authorities). But this brings meto my second point,which
isthat Cameroon,despite beingthe Applicant inthis case, has madeno effort to bring its maritime
legislation into line either with its current delimitation claimagainstNigeria, or with the rules of
internationallaw. There is a saying that one who seeks equity must behave equitably,but there is
no sign of this from Cameroon. Despite its "Equitable delimitation", it has made no attempt to
comply with its treaty obligations under the 1982Convention. 1 am pleased to Saythat Nigeria,
although it is in the positionof a Respondent inthis case, has put itsuse in order. You will see
on the screen, and you will find in your folders, the Territorial Waters (Amendment) Decree of
1998, signedby the Head of State of Nigeria on 1 January of this year. The Decree establishesa
12-mileterritorial sea; the Head of State evidently works on 1 January. Nigeria, of course, has
long claimed a 200-mile exclusive economic zone. You will find that Decree in Tab 31 of your
folders.
16.This discrepancy between the Parties'conduct is relevant to the issue of delimitation,as
1will show. How can CarneroonSaythat it has madea good faith attemptto negotiatea maritime
zone whichdoes not exist, whichit doesnot evenclaim? But quite apart from that, the Court may
well feel there is an issue ofpropriety here.sit appropriate for the Court in its first case between
partiesto the Law of the SeaConventionto delimita maritimezoneatthe instanceof a Statewhich
ismanifestlyin breach ofthat Convention? 1sthe Courtto delimit a 50-mileterritorial sea? Surely
not.
D. Preliminary Objection7: The Claim to Delimit the MaritimeBoundary is Inadmissible at
this Stage - 46 -
17. Mr. President, Membersof the Court,it is againstthis backgroundthat we must consider
Nigeria's seventhandeighth PreliminaryObjections. Letmedealfirstwith the seventh Preliminary
. Objection, which is that the claim to delimit the maritime boundary is inadmissibleat this stage.
Now this Objection is put in two distinct ways, which 1have to deal with separately. The first
relates to the maritime boundaryas a whole,the second to that part of it which is beyond Point
(1) The maritime boundary as awhole
18. As to the maritime boundary as a whole, it is evident that this depends on the land
boundary. The landboundary inthe area oftheBakassi Peninsulais,Cameroonaccepts, in dispute
in this case. One cannot begin to delimit maritime zones until thebasepoint from which they are
w
to be drawn has been determined.
19. To this Cameroon responds (CO, para. 7.10) that a party could simply assert any land
boundary claim whatever, no matter how implausiblethat claim, as a smokescreento preventthe
Court from determining maritime boundaries. But at the sarne time Cameroonaccepts that there
is a real dispute over the land boundary in the area of the BakassiPeninsula (CO, para. 7.05). So
this hypothetical problem it posesfor the Court does not need to be dealt with. One need only
observe that there is no question here of a merely colourable claim, a mere diversion from the
maritimeboundary - a claim unrelated tothe actual positionstakenby the parties,includingtheir
actual positions on the ground. The Court will have no difficultyin disposing of such colourable
W
claims, if and when they are made.
20. Of coursethe partiesto a specialagreementmightspecificallyacceptthatthe two distinct
operationsof land andmaritimedelimitationwereto be combined,implyingtherebythat theywould
address the maritime issues on the assumption that their opponent'sterritorial claim might be
upheld. But the present case was not broughtby special agreement. It was brought by asudden
unannouncedunilateral applicationunder the Optional Clause. Nigeria certainlynever agreedthat
it wouldaddressthe maritime boundary issuebeforethe Courtonthe basis that itsclaim to Bakassi
was without merit. And Cameroon has certainly not addressedthe maritime boundary in the
alternative, on the basis of Nigeria'sclaim. -47 -
21. The difficultycan be seenvery clearlyfrom Cameroonlsobservations. On the one hand
it deniesthat there is any issue of the Court being called on to act non-judiciall- that is to say,
on the basis of a presumptionthat one party'scase is correct (CO, para. 7.12). On theother hand
it argues that this aspect of the seventh Preliminary Objection should be rejected because, in its
opinion,"the landand maritimeboundaries havealready beendrawn"(CO, para. 7.20). The Court
exists,it seems,onlyto confirmthe opinionof Cameroon(CO,para. 7.20). Yetthis raisesno issue
ofjudicial propriety, so far as Cameroon is concerned (CO, para. 7.12).
22. Mr. President,Members of the Court, surelythis much is clear. The situation presented
by the conjunction of an admittedly controverted land boundary, as well as an adjacent
undetermined maritime boundary,raises a seriouspreliminary question of method. Cameroon
suggeststhat it is not a preliminary question but a question for the merits. Al1the support it can
find is in passages from two decisions of the Court, in the Nottebohmand Nuclear Tests cases
(CO,para. 7.23). But these passages relate to the Court's undoubted discretion to select, from
amongthe legalargumentswhichhavebeenmade ata particularphaseofthe case,thosearguments
it willactually deal with in order to dispose of that case. This has nothing to do with the present
issue. On the contrary,ifthe Court has the powerto determinewhat isthe true object and purpose
of Cameroons' claim,as it said in the NucIearTestscases (I.C.J. Reports 1974, p. 253 at p. 263,
para. 30), it must surely conclude that the true object and purpose of Carneroon's claimis the
determination of the land boundary, and especially sovereignty over the Bakassi Peninsula, and
consequentially,the maritimeboundaryoffshorethe Bakassi Peninsula. No one couldpossiblysay
that this was really a maritime boundary case and that the Bakassi dispute is a smokescreen.
23. Cameroon parodies Nigeria's arguments ,uggestingthatNigeria aims "attotally isolating
the maritime and terrestrialquestions" (CO, para. 7.22). On the contrary, Nigeria argues that the
two are related in the following rather simpleway. The maritime question is dependent upon the
resolutionof the terrestrial, and not vice versa. The maritime question, logically and legally, is a
subsequent question. That does not make it "totally isolated"; international law does not know of
a "totally isolated"maritime boundary claim. In law, al1maritime boundaries are appurtenantto
landterritory. 24. Al1this suggests,atthe very least,apostponementofthe maritimephaseofthe caseuntil
afier the land boundary issues have been dealt with. This may be a question of method, as
Cameroon accepts (CO, para. 7.16). But, to repeat, it is aliminary question of method.
P
(2) Themaritime boundary beyond Point G and the absence of any substantive negotiations
25. 1 turn to the second part of Preliminary Objection 7, which relates to the maritime
boundarybeyond PointG. The position here is,again,quite simple. Internationallawrequiresthat
inthe first instancethe parties should seekto establishtheir maritime boundaryby agreement. But
there has been no substantive discussion between the parties with a view to reaching such an
agreement. In Nigeria'sview, the Court cannotproperly be seised by the unilateral applicationof
w
one State in relation to the delimitation of an EEZor continental shelf boundary,if that State has
made no attempt to reach agreement with the respondent State over that boundary. Anysuch
unilateral application is inadmissible.
26. The applicable rule in this respect is laid down by Articles 74 and 83 of the
1982Convention, to which, as 1have said, both Nigeria and Cameroon are parties. Article 74
applies to the EEZ. Article 83 applies to the continental shelf. The two provisions are in
essentiallythesarneterms. (Tab 32) Under common paragraph(l), delimitationisto be effected
"by agreement on the basis of international law in order to achieve an equitable solution". Under
commonparagraph (2): "If no agreement can be reached within a reasonableperiod of time, the
Statesconcerned shallresort to the procedures providedfor in Part XV". Common paragraph(3) w
dealswith the situation"pendingagreementas providedfor in paragraph 1 ",and without prejudice
to "thefinal agreement". Such arrangements are without prejudiceto the final delimitation. And
commonparagraph (4) deals with the situation "wherethere is an agreementin force betweenthe
Statesconcerned";notsurprisingly,suchan agreementisgoverning. Theword"agreement"appears
in every paragraph of each Article, and a total of 12times altogether.
27. This evidentemphasis upon agreementis fully reflected in the Court'sjurisprudence,as
demonstratedin the citations inNigeria'sPreliminaryObjections(paras. 7.18-7.25). As Cameroon
has made no attempt in its observations to discusshese authorities, 1will not go through them again here. It is suficient to cite the following passage from the GuIfof Mainecase, where the
Charnber stated as the first and "primary" principle of delimitation:
"delimitation must be sought and effected by means of an agreement, following
negotiations conducted in good faith and with the genuine intention of achieving a
positive result. Where,however, such an agreementcannotbe achieved,delimitation
should be effected by recourse to a third party possessingthe necessary competence."
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment,
I.C.J.Reports 1984, p. 299, para. 112, (emphasis added). Cf. ibid, at p. 311,
para.154,("primary rule").
In similar vein the full Court in the LibydMalta referred "primarilyto the du@of Parties to seek
first a delimitation by agreement, which is also to seek an equitableresult." (Case concerningthe
ContinentalShelf(LibyanArabJamahiriydMalta),JudIg .m.J.te,ports1985,p. 39,para. 46.)
In the words of Prosper Weil, "No one would thinkof challengingthe propositionthat the Parties
may not make a unilateral delimitation and are bound, in the first instance, to seek delimitation
throughagreement." (TheLawofMaritimeDelimitation - Rejlections(Grotius,Cambridge, 1989)
p. 110; inFrench, PerspectivesduDroitde laDélimitation Maritime(Pédone,Paris, 1988)p. 119).
At least, no one would think of doing so, before Carneroonactually did it.
28. Thus the applicable treaty provision, no less than the rule of generalinternational law
consistentlyreferredto bythis Court, refers issues of delimitationprimarilytotheParties, andonly
secondarily,afterattemptsto reach agreementhavefailed, tothirdparty settlement. Statesmaynot
bring maritime boundary issues to Court preemptively, in order to prevent disputes arising. The
questionofthemaritime boundarymustfirst have beensubstantivelydiscussed. But 1have already
shown that there have been no substantive discussions between the Parties as to the maritime
boundary seawards of Point G. As to the exclusive economic zone there could not have been,
because that zone on the Cameroon side does not yet exist. It followsthat attemptsto delimitthat
boundary by third party adjudication are inadmissibleut thisstage.
29. Facedwiththisargument,Cameroonsaysthat conductingnegotiations"isnot anecessary
prerequisite to the admissibility of an application"to this Court (CO, para. 7.27). Devoted as it
purports to be to the law of treaties and to the decisions of this Court, Carneroonseeks to dismiss
both in a singleembarrassedsentence. Accordingto it,apparently,Articles 76and83, paragraph 2,
areto be reformulatedsoasexclude anyreferenceto agreement. Even if no attempthas beenmade - 50 -
to reach agreement, a State may resort unilaterallyto the Court. That is not what the articles Say,
not what the Court has many times said.
30. Altematively,Cameroonarguesthatthe Parties have"sufficientlynegotiated witha view
to achieving delimitationof their respectivemaritime areas"(CO, p. 106). Indeedthis is its main i
argument. It seeksto supportthat argument in three ways.
(1) In the first place, Cameroonsays (CO, para. 7.31)that the Parties havealways
intendedto negotiatetheir entiremaritime boundary,andnot to stopat Point G.
Butwhatevertheir intentionsmayhave been,the Parties have not discussedany
point whatever beyond Point G. Al1 the earlier negotiations related to the
inshore boundary. Al1the negotiations, such as they have been, since 1975,
have equally related to that part of the boundary. Cameroon cites not one
document since 1975,whethera bilateral communiquéor an interna1document,
which indicatesthat the areasbeyond PointG have been discussed. It cites no
such document in its Memorial, as Nigeria pointed out in the Preliminary
Objections (NPO, para. 7.12). It cited no such document in its Observations
(see CO, paras. 7.39-7.40). It can be inferredthat no such document exists.
(2) In the second place, Cameroon says (CO, para. 7.33) that the Maroua
Declaration did not stop at territorial waters, but extendedto the continental
shelf,if not theEZ. Indeedthis is, for Cameroon,the "best illustration"of the
point (ibid.). Mr. President, Membersof theCourt, itmaybe itsbestillustration
but it is a pretty poor illustration nonetheless. For whatever the position may
havebeenobjectively,boththePartiesatthetimeclassifiedthe areasinquestion
as territorialea. Cameroon still does, as 1 have mentioned. And yet this
classification,ontraryto positive law,is ignoredby Cameroon. Cameroonwas
more candid in its Memorial, when it accepted that the Maroua Declaration
"concerne essentiellementleseauxterritoriales" (CM, para 5.66). Sofar asthe
Parties were concemed that was true at the time. And since the question is
whetherthey have engagedinany discussionsdirected atthe delimitationof the -51 -
continental shelfor the EEZ,their own sharedattitude is critical. So far asthey
were concemed, by 1975or 1978, they had not done so. And they have not
done so since.
(3) Inthethird and lastplace,Cameroonassertsthat "anyfurthernegotiationisnow
pointless" (CO, p. 107). 1 pass over the tenn "further negotiation", which
concealsthe factthat there has been nonegotiationat al1beyondPoint G. Now
it may be accepted that if Cameroon was now to cal1 for negotiations on
delimitation beyond Point Gy Nigeria would be bound to reply that it is
necessary first to reach agreement on the land boundary. But negotiations on
a land boundaryare notthe samething as negotiationson an EEZor continental
shelf boundary, and the attempts to reach agreement which are required by
Article76,paragraph 2 andArticle 83,paragraph2, ofthe 1982Conventionare
quite different from any agreement on landboundaries. 1have discussed that
point already. Nigeria would also, no doubt, say that the Parties have agreed
thatany discussions of the offshore boundarymust involve Equatorial Guinea,
in order to determine the tripoint. They so agreed in August and
November 1993. But as we have also seen, the involvement of Equatorial
Guineawas requiredas a practical reality. Theoffshoreareasof thethree States
are so intertwined that they al1need to be involved in the negotiations. But it
cannot excuse Cameroon from not negotiating withNigeria that it has not
negotiated with Nigeria and Equatorial Guinea over an area which affects al1
three States. Cameroon cannot argue that because it is practically requiredto
negotiate withtwo Statestherefore it cannot be required to negotiate with any.
Cameroon has not disclosed to the Court the state of its negotiations with
Equatorial Guinea. It cannotjusti& its failure to comply with Articles 76 and
83of the 1982Conventionvis-à-visNigeria by referenceto negotiations,or the
failure to negotiate, with a third State. Moreovertrilateral negotiations would - 52 -
be far fiom pointless,as the Partieshaveexpresslyagreed. SoCameroon'sthird
argument fails as well.
31. Mr. President, Membersof the Court, for these reasons Cameroon'sunilateral claimfor
the delimitationofthe maritimeareas,and inparticularthose beyondPointG, is inadmissible. And
there are good reasons not to regret that situation.maritime boundary situation beyond
territorialwaters inthe Bight of Biafra is a very specialone. It is notto be resolvedon a piecemeal
basis, on the basis of unannounced unilateral applicationsfrom just one of the States involved.
E. Preliminary Objection 8: This Boundary Delimitation Directly Involves the Rights ofThird
States
W
32.1turnnow to Nigeria'seighth Preliminary Objection.israises a distinct issue,one
which arises not from the general law of maritime delimitation but fiom the special geographical
situationwhich facesthe Parties, and the Court. It is thus logically and legally a sufficient basis
for the dismissal of the claim to offshore maritime delimitation in its own right.
33. Nigeria's eighth Preliminary Objectionis that the Court cannot determine the offshore
maritime boundary of the two States on a bilateral basis in the absence ofEquatorial Guinea,an
intimately involvedthird State. (Tab 24) In order to understand this Objection, itis necessaryto
look to Carneroon'slaim. You can see on the screen its claim-line, as set out on the map
containedin its Memorialand headed ''LaDélimitationÉquitablen(CM, p. 556). For the sakeof
clarity let me use Our transposition of the line. (Tab25) You will see that the Cameroon's-
claim-line runs from Point G directly westwards to Point H, then in a south-westerly direction
through Points 1,J anK and out into the direction ofthe South Atlantic.
34. Now itis importantto notethat inputting forwardthis claim-line,Cameroonisnot acting
as a sortof collectionagent for Equatorial Guinea and SaoTome andPrincipe. It has produced no
power of attorney entitling it to act on behalf of the other two States. It is acting entirely on its
ownbehalf. Cameroonclaims to be entitled to a strip ofterritorial sea and continental shelfto the
east andsouth of the line G throKgand beyond. The areas immediatelyto the east and south
of that lineare in itsview continuouslypart of the maritimeterritory of Cameroon. Andthe Court
iscalledon so tocide. Thisappearsexplicitlyfiom Cameroon'ssubmissions(CM,para. 9(c)), - 53 -
and fiom the text of its Memorial (CM, p. 555, para. 5.127,). In short, Cameroon claims a strip
of maritime territory bordered by that line. It does not Say how wide the strip should be but
obviously it must have some significantwidth, otherwiseit could not beexploited. Perhaps in the
next round Cameroon will tell us howwide it should be.
35. Now, Mr. President, MembersoftheCourt,youcanseethe implicationsoftheCameroon
claim-line fiom the series of maps in your folders which showthe distances of points H, 1,J and
K fiom the various Gulf States as well as fiom the Bakassi Peninsula itself. Let me take you
through them.
(Tab 33) First of all, PointH. This is less than 26 miles fiom Nigeria, more than
34 milesfiomBakassi,41 milesfiomEquatorialGuinea,50 milesfiom Cameroonproper.
As to Point H, the position of Equatorial Guinea, as compared with Cameroon, would
prima faciebe excluded ifand only if Bakassiwere heldto belongto Cameroon. But the
Court as ajudicial body cannotassume ajurisdiction overthe maritime boundary which
it could only exercise, if it hadready decided to reject the legal position of one of the
two Parties in the case before it. That would be to showobvious prejudgment. So even
as to Point H, the admissibility of Cameroon'sclaim is highly questionable. (1 Say
nothing, of course, about the merits of that claim.)
(Tab 34) But, Mr. President, the plot thickens. Look atPointI. This is about 44 miles
fiom Nigeria, more than 52 miles fiom Bakassi, 34miles fiom Equatorial Guinea,
62 miles fiom Cameroon proper. As to Point 1, Cameroon might be slightly more
generousto Nigeriathan it is withPoint H, becausePoint 1is closerto EquatorialGuinea
than it is to Nigeria.But the generosity is not at Cameroon'sexpense! Having taken
around Point H areas relatively clearly appurtenant to Nigeria, Cameroon compensates
Nigeria with areas to the Westof Point 1arguably appurtenantto Equatorial Guinea.
(Tab 35) Now to Point J. This is about 79 miles fiom Nigeria, 67 miles fiom Equatorial
Guinea, more than 115 miles from Bakassi, and 118 miles fiom Cameroon proper. But
now there is a new player in the game, Sao Tomeand Principe. Point J is 80 miles fiom
Principe. In other words, Point J is much closer to Nigeria, Equatorial Guinea and - 54-
Principe than it is to Cameroon. It is obvious that Nigeria and Sao Tome and Principe
could not purport to decide on maritime claims to Point J in the absence of Equatorial
Guinea. How on earth can Cameroon require the Court to do so, as between itself and
Nigeria? Cameroonwhich is respectively37, 50 and 38 milesfùrther awayfrom Point J
than these other three States.
(Tab 36)Mr. President,MembersoftheCourt,letmecompletethedemonstrationquickly.
Look at Point K. It is about 100miles fromNigeria, 103miles fiom EquatorialGuinea,
only 66 miles fiom Principe and around 150 miles fiom Cameroon. 1 should Saythat
these mileages may be slightly approximatebecause of the approximatecharacterof the
original Cameroon map.
36. And not merelyareEquatorialGuineaand SaoTomeandPrincipenot partiestothis case.
The Court has no informationas to their attitudesto Cameroon's extraordinarymaritimeclaims to
offshore areas prima facie appertaining to them. (Tab 24) The Court will recall the attempted
Italian intervention in the Libya/Malta case. There the third State, Italy, sought to intemene to
express an interest in the affected areas. Equatorial Guinea'sinterest in the areas here is much
greater even than Italy's wasin Libya/Malta. On the basis of that decision, imaginethe areas the
Court would have to exclude fiom the delimitation in order to avoid impinging on any areas
potentiallyappertainingto the intemeningState. But is thejurisdictional position ofthe Court any
better becausethe Court has no such intervention,has no information aboutthe claimsof the third
'ciir
State? How could it be?
37. It shouldbe stressedthatthere isno questionhereof declaringa non liquet,as Cameroon
pretends (CO, para. 8.03; also para. 8.25). The question is simply of the Court not directly
prejudicing or prejudging the rights of third States by a delimitation that necessarily callshose
rights in issue. Nor is it a question, directly at least, of the Court being called on to apply the
Monetary Gold principle, althoughthe policies that underlie that decision are certainly engaged.
Whatever the position with respect to land boundaries, and tripoints on land or lacustrine
territory- a matterwhich hasbeendiscussedbymy colleagueProfessorBrownlie - theposition - 55 -
of maritime boundaries is different. That distinction was expresslymade by the Chamber in the
BurkinaFaso/Malicase. In that case the Chamber said:
"a court dealingwith a requestfor the delimitationof a continentalshelfmustdecline,
even if so authorized by the disputant parties, to rule upon rights relating to areas in
which third States have such claims as may contradict the legal
considerations- especially in regard to equitable principles-which would have
formed the basis of its decision"I.C.J. Reports 1986, p. 578,para47).
38. Can it possibly be doubted that this is the case here? Can it possibly be doubted that
EquatorialGuineahasclaimswhich "maycontradictthe legalconsiderations,especiallywith regard
to equitable principles", which would form the basis of any decision of the Court as between
Cameroon andNigeria? (Tab 24) One has only to look at Cameroon's "claim-line"as portrayed
for thefirst time in its Memorial (CM, p556). Cameroon'sclaim calls on the Court to Saythat
the equities require Equatorial Guinea to be deprived ofnificantareas of continentalshelf and
EEZwhich are closerto it than Cameroon. 1remind the Court that the line fiom Points H to 1on
thismap representsadelimitationbetweenNigeriaandCameroon. Wediscover, surprisingly,there
is no tripoint. Thus points to the east of that line are claimed to appertain continuously to
Cameroon. But fiom Point G to Point K most of those points, something between 80 and
90 per cent of them, are closer to Equatorial Guinea and Sao Tome and Principethan they are to
Bakassi or Cameroon, somewhere between 80and 90 per cent of the points. They are therefore
areas to which Equatorial Guinea or Sao Tome and Principe or both of them have perfectly
legitimate claims. The whole of the situation here hinges around Equatorial Guinea, and
Cameroon'smap, "TheEquitableDelimitation"portraysthat realityonlytoo clearly. Theequitable
delimitation. Thebasis for the line fiom Point G through PointH to Point1 and beyond. For
Cameroonto claimthat the Court can decide this case without anyregard to the implications ofits
decision for third States is totally unrealistic. And this claim is belied by Cameroon's own
reasoning in its Memorial, by its own account of how, where and whythe Court should drawthe
line (CM, paras.5.107-5.128). By its own map.
39. Moreover not merely is this true in fact. The two Partieshave agreedthat it is me. 1
havereferred to this already, andneed only quotethe relevant passagefiom the Joint Communiqué
of the meeting held in Yaoundéin August 1993,which reads as follows (Tab 37): "After underscoringthat the determinationof the triple point is essentialto the
delineationofthemaritimebordersbetweenNigeria, EquatorialGuineaand Cameroon,
the two Parties agreed that a tripartite meeting shouldbe convened to examine the
issue of the determination of the triple point and the Gulf of Guinea Commission
project." (Ann. NP0 55, NPO, Anns., Vol. II, p. 865.)
1repeat, "the determination of the triple point is essential". Yet it is now said that the Court can r
decide the full extent of Cameroon'smaritime entitlement,without any adverse implicationsfor
Equatorial Guinea or for that matter Sao Tome and Principe. This is obviously untrue.
40. In its observations, nonetheless, Cameroon seeksto reply to this objection in a number
of ways (CO, paras. 8.05-8.33). 1could count seven of them, andfaute de mieux 1will deal with
them in numerical order.
41. First, Cameroon refers to the line of cases enunciating the Monetary Gold principle, I
arguing that the legal interests of third States do not constitutethe subject-matterof the decision
the Court is askedto reach in a bilateraldelimitation(CO, para. 8.06). In generalthat may betrue
in maritime delimitationcases, even inthose in which the Court is askedto draw a line,as distinct
merely from layingdownthe applicableprinciples. But this is a very specialsituation,quiteunlike
any the Court has previously had to face. It is a situationof almost completeoverlapbetweenthe
offshore claims of the applicant State and a third State. As to the substantial areas claimed by
Cameroon which are closer to EquatorialGuineathan they are to Cameroon,the subject-matterof
the present case does precisely concem the legal interests ofa third State.
42. Secondly,Cameroon repeats,and repeats, that it is only asking for the determinationof w
the boundary as between Nigeria and Cameroon (CM, para. 8.05, para. 8.07 (twice), para. 8.12,
para. 8.23). Thepoint is self-evident. The Courthas no competenceto do anything else. Butwhat
it cannot do in fom, it must not do in substanceeither, andcertainly not in the specificcontext of
maritime delimitation. It cannotattributeby ajudgment havingthe forceof resjudicata as between
Nigeria and Cameroon an areawhich onthe faceof it is amatterof primaryconcem to Nigeriaand
Equatorial Guinea. Any suchjudgment will of coursenot be bindingon EquatorialGuinea,which
I
will be entitled to insist on its legal interests in the areas concemed against both Nigeria and
Cameroon. Assume that Equatorial Guinea decided to bring a case of maritime delimitation
vis-à-vis Cameroonbeforethis Court. In such a case,therewould be onlytwo possibilities. Either -57 -
the Court'sview of the equitieswould be exactlythe same,in which case everyone wouldsee that
the earlier judgment did in truth dispose of "the legal considerations- especially in regard to
equitableprinciples"affectingEquatorial Guinea. Or itwouldbedifferent, inwhichcasethe earlier
judgment would be discredited.
43. Thirdly,Cameroon seeks to demonstrateby a brief analysis of the earlier cases that the
Court has alwaysdrawn a maritimeboundarybetweentwo Stateswhen it hadjurisdiction to do so,
even ifthat linehad implicationsfor a third State(CO, paras.8.13-8.24). As itaccepts,therelevant
casesare onlytwo, TunisidLibya andLibydMalta. Bothwere specialagreementcases, not brought
underthe OptionalClause. Thatitself issignificant,becausewhentwo Statesspecificallyagreethat
a particular area is to be delimited, they cannot subsequentlycomplain if the Court fulfils the
specific mandate they have given it. But nonetheless it is worthwhile discussing the two cases
briefly.
44. The lineindicatedbythe Court in TunisidLibya can be seen on the screen now(Tab 38).
It will be obvious that the Court was carefulto preserve the position of Malta in relation to that
line. It did not indicate the tripoint, and it took account of the approximate areas appertainingto
Tunisia and Libya only with a view to testingthe result, in general terms, under the criterion of
proportionality(1C.J:Reports 1982, p. 91, para. 130). It noted "Howfar the delimitationlinewill
extend north-eastwards will, of course, depend on the delimitations ultimately agreed with third
Stateson the otherside of thePelagian Sea"(ibid.). This wasa wholly different situationfromthat
which confrontsthe Court here, and one far less extreme. In the present case, Cameroon asksthe
Courteffectivelyto ignoretheoffshore State,EquatorialGuinea,andto attributeto Cameroon areas
which are much closer to Equatorial Guineathan they are to Cameroon. The contrast between
Cameroon'sneglect for the position of the offshore third State and the Court'sconcern to protect
the position of Malta in TunisidLibya case is obvious.
45. That concernwas evenmore obvious inLibydMalta. Althoughthe CourtrefusedItaly's
requestto intervene,it took fullaccount ofthepossibilityof the legal interestsof third Statesbeing
affected, and thus only dealt with a part of the area in question. The Court confined itself to thearea which was free of the claims of Italy, and it did so against the urgings of both Libya and
Malta. And the Court noted:
"It is true that the Parties have in effect invited the Cour... not to limit its
judgrnentto the area inwhichtheirs arethe solecompetingclaims; but the Courtdoes
not regard itselfas free to do so, in view of the interest of Italy in the proceedings."
(I.C.J.Reports 1985, p. 25.)
Accordingly the Court confined the area within which it had jurisdiction as between Libya and
Malta to the area you now see shadedon the screen (Tab 39). It shouldbe stressed that the Court
treated this exclusion not as a prudentialmatter but as one that went to itsjurisdiction to decide.
As it said:
"A decisionlimited inthis way .. . signifiessimplythat theCourt hasnotbeen
endowed with jwisdiction to determinewhat principlesand rulesgovem delimitations
withthird States,or whetherthe claimsof the Parties outsidethatareaprevail overthe
claimsof thosethird Statesinthe region." (Ibid.,atp. 26, para. 21(emphasis added).)
Thatwas a decisionby the full Court, by 14votes to 3. Onthe point ofthe geographicalrestriction
of the area within jurisdiction, the majority was larger still.
46. In its observations,Cameroon makes a number of pointsaboutthis decision. It saysthat
the decisionto refusethe Italian requestto intervenewas "a result whichwould hardly becredible
today, following the successful Nicaraguan interventionin the El Salvador/Hondurascase" (CO,
para. 8.17). Well, that remains to be seen. Nicaragua's requestto intervenewas granted only to
a rather limited extent. But the more fundamental pointis this, the Court's jurisdiction over a
dispute cannot be increased or extended by an intervention under Article 62, under which the
intervenerdoes not become a party properly so-called. Thejurisdiction either exists interpartes
or it does not. Non-party interventionmay give the Court more information,but it cannot give it
morejurisdiction, more power. And anyway,there is no indication,no indicationwhatever,of any
intervention on the part of a third State.
47. This leadsto a further argument madeby Cameroon againstthe LibydMalta Judgment.
It says that "the Court did not find that it lacked jurisdiction" (CO, para. 8.17). This is, with
respect, simply wrong. The Court said expressly, that it lackedjurisdiction as to the areas where
delimitation impingedon the legal rights or interests of third States. 1 have cited the passage
already (1C.J: Reports 1985, p. 26, para. 21). To recall, the Court said "it had not been endowedwith jurisdiction to determine what principles and rules govern delimitations with third States".
(Tab 25) And it must be stressed that as compared with the situation in Libya/Malta, the
geographical situation herepresents an even more "exceptional difficulty" - this time 1am using
Cameroon'sown language, "exceptionaldifficulty" (CO, para. 8.17). Indeed, Cameroon itself
admitsthat it is more difficult"afortiori"(CO, para. 8.26). Withina short distance after Point G,
one isin waters to which EquatorialGuinea has legal interests,and may have a valid claim. In its
Memorial, Cameroonwas remarkablyclear about this, although a fit of coyness has corneacross
it for the purposes of the Preliminary Objection. But listen to what it said in its Memorial:
"The line must also take account of the presence of the large island of Bioko,
not in order to establish the rights of Cameroon as compared to those of Equatorial
Guinea ... but rather in order to reflect the existence of that large island as a
geographicalfact, operatingto the detriment of Cameroon in an areawhich shouldbe
equitably divided among al1the States of the region .. .[A] situation Iike the one
prevailinginthepresentcaserequiresa collectivebalancingoftheequities,advantages
anddisadvantagesamongthedzgerentStatesalongtheshoresof theBightofBiafa."
(CM, para. 5.114 (emphasis added).)
Now this passage might be objected to as being redolent of an attempt to correct geography, an
attemptthe Court hasrepeatedlydisavowed. But that is notthe issue at this phase. For Cameroon
inthis passage acknowledgesthe truthofthe situation,which requires a "collectivebalancing",not
a bilateralone, and certainlynot a bilateralone withNigeria. And this is wherethe absenceof any
collective, or for that matter bilateral, discussions of the boundary, despite Cameroon'searlier
agreementthat such negotiation was "essential", is particularly telling.
48. In this context it should be stressed that the principal reasonCameroon is shelf-locked
is not Nigeria's adjacentCoastbut Equatorial Guinea's oppositeone. Cameroon cannot seek to
evade that difficulty by bringing, unannounced and without priornegotiations, a case against
Nigeria.
49. Then, Carneroon argues that if the Court cannot decide this case its role in maritime
delimitationwill decline (CO, para. 8.22). But that completely fails to acknowledge the extreme
and specialcircumstancesof the presentcase, made even more extreme and special by the factthat
Cameroon broughtthe case without prior negotiations as to the offshore boundary andcontraryto
the agreementpreviously reached thatthe Parties would involvethe obviouslyaffected third State. - 60 -
The implications for the Court's generalrole in maritime delimitation are negligible. But in any
event, the Court has to do justice according to international law, including its own previous
decisions asto the extent of its jurisdiction interpartes. That is what will create and sustainthe
faith of govemments in its role.
50.Then, Cameroonpoints out that the line it proposestakes full accountof the rights and
interestsofEquatorial Guineaand evenof SaoTomeandPrincipe(CM,paras. 5.120-5.126,5.135).
(Tab 24) Well, in the light of the maps 1have shown earlier that is simplynot true. But whether
or not it is true, it cannot improve the situation.he Court does not havejurisdiction over the
rights ofthird Statesjust becausetheApplicantproposestotreatthosethirdStatesgenerously! Just
as soon as the rights and interestsofhose Statesare directly in issue,the Court cannot exerciseits W
functions. The pointcanbe seen byconsideringwhatNigeriawould haveto do in orderto respond
to the line presented by Cameroon and entitled"TheEquitable Delimitation",which you can now
see. Nigeria would haveto argue the equities of the situationnot only as against Cameroonbut in
effect as against the other States as well. The Court cannot listen toch an argument, let alone
decide it. Cameroon'sclaim is hopelessly inadmissible.
51. Then Cameroon argues that the Nigerian position is not preliminary(CO, para. 8.28).
Mr.President, Membersof the Court, if it goes to jurisdiction it is preliminary. And as 1have
shown, it goes tojurisdiction. The reason itwas dealt with only at the meritsstage of LibydMaIta
was that the parties to the Special Agreementwere understandablyurgingthe Court to ignorethe w
interestsof the third Statein a case where theyhad both agreedtojurisdiction and wherethere was
no preliminary phase.
52.Then, andtheCourtwill bepleasedtohear, finally,Cameroonsaysthat Statesoftencarry
out by bilateral agreementsdelimitations potentially affecting third States,which can rely on the
non-opposabilityof suchdelimitations(CO, paras. 8.29-8.32). But that hasnothing to do withthe
presentcase,which involvesaclearjudicial determinationof "thelegalconsiderations- especially i
in regard to equitable principles" affecting third States. In the rough and tumble of international
negotiationstwo Statesmay perhaps seek to impingeon the position ofa third State andtry to get
that State to recognize or acquiesce in their agreement. The Court is in a different position,as it - 61 -
made clear both in LibyaIMaltaand inBurkinaFaso/Mali. It is held to the standards ofjudicial
jurisdiction.
F. Conclusion
53. Mr. President, Members ofthis Court, for al1these reasons Nigeria submits that the
Applicationof Carneroon,so far as itrelates to the maritimeboundary, shouldbe dismissed. Such
a dismissal would, of course, be without prejudice to the rights of either Party to commence
independent proceedingsrelating tothe maritime boundary,if and whenthe legalpreconditionsfor
bringing such proceedingshave beenmet. But at present they have not been, andNigeria invites
the Court to draw the necessary conclusions.
Mr. President,Members ofthe Court, that concludesthe argumenton behalf ofthe Republic
of Nigeria in thisirst oral phase. Thank you for your patient attention.
The PRESIDENT: Thank youvery much, Professor Crawford. The Courtwill adjourn and
meet again on Thursday at 10o'clockto hear the argument of Carneroon.
TheCourtrose ut 12.40p.m.
Public sitting held on Tuesday 3 March 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding