INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
THE LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA
(CAMEROON v. NIGERIA)
PRELIMINARY OBJECTIONS
OF
THE FEDERAL REPUBLIC OF NIGERIA
VOLUME I
DECEMBER 1995
PRELIMINARY OBJECTIONS
OF THE FEDERAL REPUBLIC OF NIGERIA
Contents
INTRODUCTION
CHAPTER 1 The Court has no jurisdiction to entertain Cameroon's Application
CHAPTER 2 The duty of the Parties to settle all boundary questions by means of existing
bilateral machinery
CHAPTER 3 The exclusive competence of the Lake Chad Basin CommissionCHAPTER 4 The Court cannot determine the tripoint in Lake Chad
CHAPTER 5 There is no dispute concerning boundary delimitation from the tripoint in Lake
Chad to the sea
CHAPTER 6 There is no basis for a judicial determination that Nigeria bears international
responsibility for alleged frontier incursions
CHAPTER 7 There is no dispute susceptible of adjudication as to the maritime boundary
CHAPTER 8 Maritime delimitation necessarily involves the rights of third States
CONCLUDING SUBMISSIONS
SCHEDULE 1 Schedule of Annexes which are incorrectly referenced in Volume I of the
Memorial
SCHEDULE 2 Schedule of inadequacies in the Annexes to the Memorial
LIST OF ANNEXES
Note: References to Nigeria's Annexes in the text of the Preliminary Objections are by the letters "NPO
followed by the Annex Number
__________
Introduction
1. On 29 March 1994, the Republic of Cameroon ("Cameroon") lodged with the Registry of
the Court an Application dated 28 March 1994 ("the Application") instituting proceedings
against the Federal Republic of Nigeria ("Nigeria"). The Application was concerned with the
issue of sovereignty "over the Peninsula of Bakassi" and "the maritime boundary up to the
limit of the maritime zones which international law places under their respective
jurisdictions".
2. Subsequently, Cameroon decided to make an Additional Application by way of amendment
("the Amendment"). 1 The Amendment was filed with the Court on 6 June 1994. The
Amendment broadened the area of dispute enormously. The Court was now asked to adjudge
and declare not only "sovereignty over the disputed parcel in the area of Lake Chad" but also
to "specify definitively the frontier between Cameroon and the Federal Republic of Nigeria
from Lake Chad to the sea" (a distance of approximately 1,680 kilometres).
3. The case of Cameroon is stated in detail in its Memorial dated 16 March 1995 (the
"Memorial").4. The Memorial runs to seven Volumes. The first, which is 688 pages long, contains what is
alleged to be the substance of the complaint. The remaining six Volumes contain documents
("Annexes") which are alleged by Cameroon to contain evidence supporting its complaint.
5. The present document contains the Preliminary Objections of Nigeria to the Application
and the Amendment of Cameroon. The Objections are eight in number. Their subject matter is
as set out below:-
Chapter 1 The Court has no jurisdiction to entertain Cameroon's Application.
Chapter 2 The duty of the Parties to settle all boundary questions by means of
existing bilateral machinery.
Chapter 3 The exclusive competence of the Lake Chad Basin Commission.
Chapter 4 The Court cannot determine the tripoint in Lake Chad.
Chapter 5 There is no dispute concerning boundary delimitation from the
tripoint in Lake Chad to the sea.
Chapter 6 There is no basis for a judicial determination that Nigeria bears
international responsibility for alleged frontier incursions.
Chapter 7 There is no dispute susceptible of adjudication as to the maritime
boundary.
Chapter 8 Maritime delimitation necessarily involves the rights of third States.
A. The physical nature of the boundary between Nigeria and Cameroon
6. The long boundary between Nigeria and Cameroon stretches in the North from the tripoint
in Lake Chad to the Gulf of Guinea in the South.
7. It is helpful to treat the boundary as comprising three sectors, namely:-
(a) from the tripoint in Lake Chad to Mount Kombon (c.1,120 km);
(b) from Mount Kombon to Pillar 64 on the Gamana River (c.176 km); and
(c) from Pillar 64 on the Gamana River to the sea (c.384 km).
A map of the boundary is to be found at the end of this Introduction (p.25).
8. The Bakassi Peninsula is a low lying region bordered on the West by the estuary of the
Cross River, on the North by the Akwayafe River (also known as the Akpa Ikang), on the East
by the Rio del Rey estuary, and on the South by the Gulf of Guinea. The Peninsula itselfconsists of a series of islands covering approximately 50 square kilometres and occupied for
the most part by long-established communities of Nigerians, in several dozens of villages. The
confluence of two important ocean currents, the eastward flowing warm Guinea current and
the northward drift of the cold Benguela current, contribute to create large breakers and shoals
which make navigation at the entrance to the Cross River estuary hazardous. This confluence
also enriches the region with plankton and makes the waters surrounding the Peninsula rich in
fish and other forms of marine life.
9. The rest of the boundary (the subject matter of the Amendment) consists in the South East
section (from Mount Kombon to the Bakassi Peninsula) of mountainous country including the
Obudu and Mambilla Plateaux. North East Nigeria is the area North of the Benue River,
bordered in the North and East by the countries of Niger, Chad and Cameroon and in the West
by the Nigerian State boundaries of Kano and Kaduna. The boundary North of Mount
Kombon passes along the Eastern boundaries of the Nigerian border States of Taraba,
Adamawa and Borno and into Lake Chad. The terrain in the North Eastern section of the
boundary varies sharply between the Mandara Mountains running along the border with
Cameroon and the flat, low-lying, Lake Chad basin. The mountainous areas through which
the boundary passes constitute very difficult terrain. Parts of these mountainous areas are
virtually inaccessible during the rainy season. Indeed, a considerable part of the boundary
between Nigeria and Cameroon lies in remote country amidst dense forests or high mountain
ranges.
B. The Parties to the present dispute
10. Nigeria is a Federation. Cameroon is a unitary State.
11. At independence on 1 October 1960, Nigeria had three semi-autonomous Regions, namely
the Eastern, Western and Northern Regions of Nigeria. A fourth Region, the mid-Western
Region, was created in 1963. From 1967, the federal units became known as "States".
12. Twelve new States were initially created in 1967 out of the four existing Regions. The
constituent units of the Nigerian Federation increased to 30 States in 1991 with the Federal
Capital Territory at Abuja as the new seat of Government in substitution for Lagos.
13. The political and administrative history of the Bakassi Peninsula is linked very closely
with the Cross River and Akwa Ibom States. These two States were originally component
units of the former South-Eastern State, which was created in 1967 and inherited the
administration of the Bakassi Peninsula from the Eastern Region of Nigeria.
14. Germany was the first colonial power in Cameroon. The German Kamerun Protectorate
was set up in July 1884. After the First World War, the League of Nations mandate conferred
the administration of four-fifths of the territory on France and the remainder on Great Britain.
The British sector comprised two separate territories, one (the Southern Cameroons) in the
South-West and the other (the Northern Cameroons) further North, running along the Eastern
border of Nigeria. The Southern Cameroons were joined in one administrative union with the
Eastern Province of Nigeria while the Northern Cameroons were linked with the Northern
Province of Nigeria in another.15. At the end of the Second World War, the League of Nations mandates were converted into
UN Trust Territories, still under British and French administration. In February 1961, the UN
supervised plebiscites in both the Southern and Northern Cameroons. Cameroon became a
unitary Republic on 2 June 1972.
16. In 1983, the number of Cameroon's provinces was increased from seven to ten. The then
Northern Province was split into Adamaoua (North and Far North) and the Centre South split
into the Centre and Centre South. Shortly thereafter the "Republic of Cameroon" was adopted
as the name of the country.
C. The Bakassi Peninsula
17. Reference has been made above to the Bakassi Peninsula. At least 90% of the population
of the Bakassi Peninsula consist of Efik and Efut people of Nigeria. The historical association
with Old Calabar provides evidence of the integral links between Calabar and the Bakassi
district. Very briefly, numerous treaties were entered into between colonial powers and native
chiefs for the purpose of establishing and consolidating spheres of influence. The Bakassi
Peninsula was one of the territories covered by protectorate treaties made between the British
Crown and the Efik Kings, Chiefs and People of what later became the South-Eastern part of
Nigeria. The dominions of Old Calabar included the Bakassi Peninsula.
18. The British sphere of influence stretched eastwards as far as the Rio del Rey. In
consequence, at that period the area of the Bakassi Peninsula was within the territories of the
Kings, Chiefs and People with whom Great Britain concluded treaties in 1884.
19. The villages of the Bakassi Peninsula were administered by the Eket Division of the
former Calabar Province of Nigeria. Following the creation of new Nigerian States in 1967
the administration continued under the South Eastern State, later called the Cross River State.
Akwa Ibom State was created in 1978 out of the former Cross River State and soon after that,
the Mbo Local Government Authority ("LGA") of Akwa Ibom State, located within the
territory of the former Eket Division, and the Akpabuyo LGA of Cross River State raised
conflicting claims to the Bakassi Peninsula.
D. The untimeliness of the Application
20. The specific grounds for the Preliminary Objections are set out in more detail in Chapters
1 to 8 below. As explained more fully in Chapter 1, the timing of the Application is
significant. However, for present purposes Nigeria is concerned that Cameroon saw fit to
bring the Application and the Amendment before the Court at all.
21. Nigeria's continuing attempts to maintain friendly relations with Cameroon are evidenced,
for example, by the exchange of visits which took place in January 1994. Nigeria's Minister
for Foreign Affairs, Ambassador Baba Gana Kingibe, visited the Cameroonian President, His
Excellency Mr. Biya, at the instance of Nigeria's Head of State, His Excellency General Sani
Abacha. At the meeting, Ambassador Baba Gana Kingibe stressed Nigeria's determination to
strengthen the existing cordial relations between the two countries. He also urged the twocountries to utilise existing mechanisms of the bilateral institutional framework to consolidate
their peaceful co-existence and good neighborliness, as well as to take steps to resolve all
outstanding contentious issues between them. In appreciation of Ambassador Baba Gana
Kingibe's visit, the President of Cameroon despatched his Foreign Minister on a goodwill
mission to Nigeria's Head of State on 13 January 1994. The Cameroonian delegation came on
that occasion with a proposal for the setting up of a joint fact-finding committee to address the
border question in its entirety (with particular reference to the Bakassi Peninsula). A meeting
to work out the modalities for the formation of the Committee, as well as the Committee's
itinerary, was scheduled for 8 or 9 February 1994 either in Calabar or in Buea, Cameroon.
The matter never progressed beyond that.
22. Further discussions were taking place only a few days before Cameroon filed the
Application. The 8th Summit of the Heads of State and Government of the Lake Chad Basin
Commission took place in Abuja, Nigeria during 21-23 March 1994. The Summit was under
the Chairmanship of His Excellency General Sani Abacha. His Excellency Mr. Augustin
Frederic Kodock attended the 8th Summit representing Cameroon.
23. Clearly, it would have been deeply embarrassing for Cameroon, after having attended the
8th Summit of the Lake Chad Basin Commission on 23 March 1994, to be found, five days
later, making an application to the Court in relation to the border in the area of Lake Chad. In
its Memorial, (paragraphs 1.08 to 1.10), Cameroon attempts to place reliance merely upon a
claim by Nigeria to sovereignty over Darak, an island in Lake Chad, (in conjunction with the
dispute in relation to the Bakassi Peninsula and a history in which allegations of minor border
incursions were made by both sides) as being the ground for the assertion that it was only
"then" that the Government of Cameroon became "aware" that this territorial claim formed
part of a "systematic plan" by Nigeria to challenge "the existing boundaries". Nevertheless, in
an adjacent paragraph Cameroon asserts that incidents between the two countries in relation to
border disputes had been virtually incessant all along their common border since
independence in 1960. There is no logical nexus between Nigeria making a claim in respect of
Darak and Cameroon concluding (erroneously) that this formed part of a "systematic plan" by
Nigeria to challenge "the" (by which Cameroon means "all") existing boundaries. This
certainly does not justify broadening the scope of the Application in respect of the land
boundary. This amounts to no more than the adoption of emotive language to conceal the non
sequitur in the Cameroon reasoning.
24. In all the circumstances, the lack of coherence in Cameroonian diplomacy in the early part
of 1994 invites a question as to whether the diplomatic steps taken by Cameroon at that time
were taken in good faith.
E. Prejudicial comments and other defects in the Memorial
25. In this Introduction it is neither appropriate nor possible to list exhaustively all the
concerns of Nigeria as to the presentation of the Memorial. At this stage, the objective is to
highlight, for the benefit of the Court, certain matters which pertain to the Preliminary
Objections.
26. In doing so, it is first necessary to draw attention to the fact that the Memorial is replete
with emotive language. These matters are dealt with briefly below -in paragraphs 28 to 40. Inaddition, both the Memorial and the Annexes referred to therein contain numerous defects and
omissions. For ease of reference, Nigeria has prepared two Schedules, copies of which are
annexed at the rear of this Volume 1, respectively entitled:-
SCHEDULE 1: - Schedule of Annexes which are incorrectly referenced in
Volume 1 of the Cameroon Memorial; and
SCHEDULE 2: - Schedule of inadequacies in the Annexes to the Cameroon
Memorial.
27. It is likewise not possible to specify in this Introduction all the individual examples of
prejudicial wording which have been utilised by Cameroon throughout the lengthy Memorial.
However, even the first few pages of the Memorial contain numerous examples of language
being used which is prejudicial because:-
it is emotive; or
it distorts the truth; or
it is misleading/disingenuous; or
it begs the question and assumes the correctness of the Cameroon case as to
both the delimitation and demarcation of the boundary.
Nigeria is concerned that Cameroon's approach mischaracterises the nature of the dispute
between the two States.
28. For example, paragraph 1.02 of the Memorial contains an allegation that Nigerian Troops
"flagrantly violated" Cameroon's "territorial integrity in the region of the Bakassi Peninsula".
This clearly begs the question as to sovereignty over the Bakassi Peninsula.
29. At paragraph 1.27, there is reference to the letter sent on 4 March 1994 (Annex MC 344 to
the Memorial) by the Chargé d'Affaires ad interim of Nigeria at the United Nations to the
President of the Security Council. This letter expressed the hope of Nigeria that the Security
Council would encourage summit talks towards a bilateral settlement of the dispute pursuant
to Article 33.1 of the United Nations Charter. The letter further stated that the Government of
Nigeria hoped that the Security Council would exhort all third parties to refrain from any
action which might internationalise or aggravate the situation.
30. These comments by the Nigerian Government are reasonable. Indeed, the Security
Council itself in its letter dated 29 April 1994 (Annex MC 359 to the Memorial) was
encouraging the pursuit of dialogue with a view to resolving the matter. Nevertheless,
Cameroon alleges that the words in the letter dated 4 March 1994 from the Nigerian Chargé
d'Affaires constitute a "scarcely veiled rejection" of the international offers of good offices
and mediation. This kind of allegation cannot be substantiated. The same point is relevant in
relation to paragraph 1.28 of the Memorial.
31. In relation to paragraph 1.32 of the Memorial, reference should made to the Second
Preliminary Objection specifying the duty of the parties to settle all boundary questions by
means of the existing bilateral machinery. The Parties have accepted such a duty andcomplied with that duty for a quarter of a century. Therefore, when placed in context, it can
be seen that the following words from paragraph 1.32 are inserted only for purposes of
prejudice, namely:-
"... and that if, inconceivably, such a [bilaterally negotiated] solution were to
be reached, Nigeria would in all probability call it into question at the first
opportunity, either sooner or later".
32. In paragraph 1.71, the Memorial asserts that discussions had been going on for years in
Nigeria about how to "gain possession" of the Bakassi Peninsula ("pour s'approprier celle-
ci"). The inference of these words is that Nigeria believed that the Bakassi Peninsula had to be
seized from its rightful owners, Cameroon. This again begs the question. Even if such
assertions were not erroneous it is illogical for Cameroon to present them as evidence
supporting that conclusion.
33. Further, in paragraph 1.67 of the Memorial, Cameroon quotes a Note from the Cameroon
Minister for Foreign Affairs addressed to the Nigerian Ambassador n Yaoundé on 11 April
1994 (after the date of the Application) which stated in relevant part:-
"... The Cameroonian authorities have observed that in the past, Nigerian
military occupation of Cameroonian territory generally followed the illegal
occupation of parts of her territory by Nigerian citizens. The Nigerian military
occupation of Darak and parts of the Bakassi Peninsula are cases in point"2.
The wording of this Note from the Cameroonian Minister is a false claim. Cameroon took the
initiative in disturbing the status quo in the border regions, especially in the Bakassi
Peninsula.
34. Later in its Memorial (paragraph 6.12 and following) Cameroon refers to alleged Nigerian
military incursions in the Bakassi Peninsula. Cameroon claims a military patrol of the
Nigerian army violated Cameroon territory by penetrating into the Bakassi Peninsula as far as
the Rio del Rey where it opened fire on a craft of the Cameroonian Navy. Cameroon alleges
(paragraph 6.21) that the deaths of five Nigerian soldiers provided the Nigerian authorities
with a pretext for exploiting the incident politically and for trying to put the blame on to
Cameroon. The fact is that the incident occurred on the Akwa Yafe River, which is in Cross
River State, Nigeria. It took place on 16 May 1981. As Cameroon acknowledges, it was
Nigerian nationals who were killed. On 23May 1981, President Ahidjo of Cameroon wrote to
President of Shagari of Nigeria (NPO 1). President Shagari responded by letter dated 25 May
1981 (NPO 2) demanding:-
(1) an unqualified apology;
(2) the bringing to justice of the perpetrators of the murders; and
(3) full reparation to the families of the dead soldiers.
35. On 24 May 1981, Cameroon sent to Nigeria a Delegation led by a Minister in the
Cameroon Foreign Ministry, to offer the regrets of President Ahidjo for the incident.36. Shortly thereafter, President Shagari summoned a meeting of the National Security
Council to consider the response made by Cameroon. The Nigerian Government was not
satisfied with the response of President Ahidjo. President Shagari sent an appropriate reply to
President Ahidjo. Eventually, President Ahidjo made a full apology to President Shagari and
offered compensation to the families of the victims. Copies of a letter dated 16 July 1981 from
President Ahidjo to President Shagari with President Shagari's response dated 20 July 1981
are at NPO 3.
37. These letters containing the express apology made by the Head of State of Cameroon are
not mentioned at all in the Memorial. There is a responsibility on Cameroon to present its case
fairly and fully.
38. Comments and assertions in the Memorial of the type identified above constitute no more
than unsupported allegations. They are not assertions of fact. They are not conclusions of law
flowing from an analysis of the applicable law and the relevant facts. They are merely
prejudicial.
39. Evidently, the objective of Cameroon is to attempt to paint a picture of a very large and
powerful aggressor State - Nigeria (described in paragraph 1.38 as the "giant of Africa") -
which has expansionist objectives and designs upon a smaller neighbour State - Cameroon.
For the reasons explained below, this assertion is without foundation.
F. The Economic and Political Context
40. Cameroon asserts that the "expansionist" aims of Nigeria are explained by factors such as
the attraction of natural resources and the serious economic crisis which Nigeria has been
suffering since the late 1980's (Memorial, paragraph 1.61). This overlooks the reality of
Cameroon's own situation during the last decade. Oil prices fell in early 1986. In addition, oil
output peaked in 1985 at 9.16mtons, but by 1993 it had fallen to 6.3m tons. Annual oil
production of Cameroon in thousands of tons was as follows:-
19888,-292
19898,-114
19907,-835
19917,-235
19926,-790 19936,-300
Identified reserves were put at 56m tons at the end of 1992. By 1994 it was apparent that the
Cameroon oil industry was in decline - production was down to 120,000 barrels per day and
recoverable reserves were said to be likely to be wholly depleted by the year 2005.
41. In 1989, Mr. Paul Biya, the President, Prime Minister and Commander in Chief of the
Armed Forces of Cameroon, introduced his first austerity budget. There were further cutbacks
in 1990/91 when the budget totaled CFA Fr. 550bn. It has remained virtually static since that
date. Despite these cutbacks, the Government of Cameroon has consistently fallen short of its
targets on both revenue and expenditure. Substantial deficits have continued. In 1992/93 there
were wage cuts of up to 70% for public-sector employees. Government expenditure has
consistently exceeded revenue by as much as one-third. Public revenue fell by more than 40%
during the years 1988 to 1993.
42. Cameroon increased its external debt to a total of US$6.5bn by the end of 1992. However,
much of the debt had been raised for extended maturities and on fairly soft loans. In May
1989, Cameroon obtained its first rescheduling agreement with the Paris Club of official
creditors, with approximately US$535m of debt rescheduled over a period of ten years. In
January 1992, under a second Paris Club agreement, US$1.1bn was rescheduled. In May 1994
there was a further rescheduling. Total external debt was US$7bn. Payments due up to
September 1995 were rescheduled over a period of 23 years. There has also been a very large
rise in bilateral lending since 1988.
43. By comparison with Cameroon's declining oil production and reserves, the oil production
of Nigeria has remained steady. Production in thousands of barrels per day was as follows:-
1990 - 1,840
1991 - 1,950
1992 - 1,880
1993 - 1,910
1994 - 1,900
44. Despite various difficulties, at a political level Nigeria and Cameroon have maintained
correct and for the most part cordial relations. Delegations have been exchanged on a regular
basis. The Heads of State customarily send messages of congratulations to each other on
festive occasions. For example, a delegation from Cameroon visited Abuja in 1995 in order to
canvass support for Cameroon's membership of the Commonwealth.
45. Since independence in 1960, Nigeria and Cameroon have sought to resolve trade matters
by a series of bilateral agreements under the auspices of the Nigeria-Cameroon JointCommission, specifically set up for that purpose. These agreements have covered areas such
as fishing, telecommunications, police and judicial matters, customs, visa abolition, air
services, road transport, economic, scientific and technical co-operation, as well as cultural
and social matters. Of these only the visa abolition treaty and the air services agreements are
in force. The Agreement on Economic, Scientific and Technical Co-operation has been signed
but is not yet in force. Other agreements have remained in draft, principally due to reticence
on the part of Cameroon.
46. The most recent Joint Commission meeting was held in Abuja from 1-5 November 1993.
Discussions were held on fishing, water resources, transport, culture, health, police, security
and border matters as well as petroleum and energy, science and technology (NPO 4).
47. Nigeria and Cameroon have been making efforts to draw up a draft trade agreement.
Trade officials of both countries met in Abuja in 1994 to consider a draft.
48. It has been necessary to refer to these points in some detail in order to counteract the
presentation of Nigeria's behaviour as "expansionist" and of Nigeria as intent on a "systematic
plan" to challenge existing boundaries. There are specific difficulties relating to the common
boundaries, many of them of long duration. Both countries have, in addition, economic and
other difficulties which they are seeking to surmount. To attempt to link the two, as the
Cameroon Memorial does, is both contrived and counter-productive.
_________________ _________________
CHAPTER 1
The Court has no jurisdiction to
entertain Cameroon's Application
A: The Court has no jurisdiction to entertain the Application
1.1 Cameroon, in lodging the Application on 29 March 1994 pursuant to its Declaration of 3
March 1994 accepting the Court's jurisdiction under Article 36.2 of the Statute, acted
prematurely and without regard to requirements of good faith, and failed to satisfy the
requirement of reciprocity as a condition to be met before the jurisdiction of the Court under
Article 36.2 of the Statute can be invoked against Nigeria.B: Background
1.2 The Application, which was lodged with the Court Registry on 29 March 1994 by
Cameroon, seeks to base the jurisdiction of the Court on the Declarations made by Nigeria
and Cameroon under Article 36 of the Statute. Paragraph 12 of that Application reads (in
translation):
"The Republic of Cameroon and the Republic of Nigeria have both accepted
the compulsory jurisdiction of the Court, in accordance with Article 36 of its
statute, without any reservation."
1.3 Cameroon's Amendment of 6 June 1994 similarly seeks to base on those same
Declarations the Court's jurisdiction over the extended subject matter thereby submitted to the
Court. Paragraph 10 of the Amendment reads (in translation):
"The basis of the Court's jurisdiction has already been indicated in the
Application instituting proceedings filed by the Republic of Cameroon on 29
April [sic: semble `29 March' intended] 1994, to which the Government of the
Republic of Cameroon respectfully requests the Court to join the present
additional Application, and to deal with the whole as one and the same case."
1.4 Paragraph 1.18 of the Memorial repeated those assertions as to the basis for the Court's
jurisdiction.
1.5 Nigeria's Declaration was dated 14 August 1965, and was deposited with the Secretary-
General of the United Nations on 3 September 1965: its text is at NPO 5. Nigeria's
Declaration has therefore been a matter of public record for some 30 years. In contrast,
Cameroon's Declaration was undated, and was communicated to the Secretary-General of the
United Nations by the Permanent Mission of Cameroon only on 2 March 1994 (text at NPO
6); it was apparently received by the Secretary-General the following day and has accordingly
been treated as bearing the date of 3 March 1994. Nearly a year later, the Secretary-General,
pursuant to Article 36.4 of the Statute, transmitted copies of the Cameroon Declaration to
Nigeria (as presumably to other parties to the Statute) by means of a Note dated 9 February
1995 (text at NPO 7). As already noted, Cameroon filed its Application instituting the present
proceedings on 29 March 1994 - 25 days after the Declaration was received by the Secretary-
General, and some ten and a half months before the Secretary-General informed Nigeria that
the Declaration had been made.
1.6 Nigeria had no means of knowing, and in fact did not know, of the deposit by Cameroon
of its Declaration until it was informed by the Registrar of the Court by telex and letter dated
29 March 1994 of the lodging by Cameroon of the Application (NPO 8).
1.7 It is striking that Cameroon took no steps to inform Nigeria bilaterally of the making of its
Declaration, or of its transmission to the Secretary-General of the United Nations on 2 March
1994. As is clear from paragraphs 21 above and 2.6 to 2.23 below, an extensive network of
bilateral institutions exists which could have been used by Cameroon for this purpose, quite
apart from the normal diplomatic channels which were available for the communication of
such information between two States in diplomatic relations with each other. In particular,
during the period immediately before and after 2 March 1994 there were bilateral and
multilateral meetings attended by representatives of the two States at which thecommunication of such information would not only have been easy and appropriate, but also
would have been what was to be expected between States having the degree of shared
interests such as existed at that time between Nigeria and Cameroon.
1.8 It is also noteworthy that Cameroon failed to bring these chronological factors to the
Court's attention. Article 38.2 of the Rules of Court requires that the "application shall specify
as far as possible the legal grounds upon which the jurisdiction of the Court is said to be
based". Cameroon, while asserting that the basis for the Court's jurisdiction is to be found in
Declarations under Article 36.2 of the Statute, has treated the jurisdictional issue in a way that
can only be characterised as minimal and perfunctory, and a long way removed from
compliance with the obligation under Article 38.2 of the Rules of Court to "specify" the legal
grounds "as far as possible". Thus in its Application (and also in its Memorial) Cameroon did
not mention (as it could have done, and as Nigeria is now doing) the dates of the respective
Declarations, nor did Cameroon provide (as it could have done, and as Nigeria is now doing)
copies of those Declarations as Annexes. It is clear that Cameroon was unwilling to draw
attention to the inappropriate haste with which it had sought to institute the present
proceedings against Nigeria.
1.9 Thus, in contrast to Nigeria's long-standing, open and (apart from the stipulation as to
reciprocity) unqualified acceptance of the Court's compulsory jurisdiction, Cameroon
accepted the jurisdiction of the Court surreptitiously - an aspect of the proceedings which
Nigeria develops elsewhere (see Section C below, especially paragraphs 1.17 and 1.18). In the
course of various contacts immediately before March 1994 Cameroon carried on discussions
with Nigeria in a normal manner, with no suggestion by Cameroon that it was even
contemplating, let alone about to take, such a significant step in the bilateral relations between
two States as to institute proceedings before the Court: no threat or suggestion or other
warning of imminent arbitral or judicial proceedings was made by Cameroon. Cameroon thus
knowingly misled Nigeria, and - as was doubtless Cameroon's intention -Nigeria was taken by
surprise by the institution of proceedings against it. Nigeria finds it difficult to reconcile such
an attitude on the part of Cameroon with the dictates of proper respect for proceedings before
the principal judicial organ of the United Nations.
C: Legal considerations
1.10 Nigeria is aware of the second Preliminary Objection raised by India, and rejected by the
Court, in Right of Passage over Indian Territory (Preliminary Objections), ICJ Reports 1957,
p. 125. Nigeria does not consider that that Judgment excludes the present Preliminary
Objection being advanced by Nigeria, because:
(1) under Article 59 of the Statute that Judgment has binding force only for
India and Portugal in respect of that particular case, and expressly has no other
binding force;
(2) there are in this context certain significant differences between the facts of
that case and those of the present case, and between the arguments presented in
that case and those which Nigeria presents in the present case; and (3) in the 38 years since that Judgment was delivered in 1957 there have been
developments in international law which militate in favour of a different
outcome in the present proceedings instituted by Cameroon.
1.11 Article 36.2 of the Statute establishes that the jurisdiction conferred on the Court by a
Declaration made under it by one State has effect only "in relation to any other state accepting
the same obligation" - in effect, a general requirement of reciprocity. Article 36.3 expressly
permits Declarations to be made "on condition of reciprocity", and Nigeria's Declaration does
so: Nigeria's Declaration accepted the jurisdiction of the Court as compulsory:
"... in relation to any other State accepting the same obligation, that is to say,
on the sole condition of reciprocity".
1.12 The principle of reciprocity is central to the system established by Article 36.2 of the
Statute. It is a notion which has to be interpreted in a substantive and not a formalistic sense;
it must also be understood and applied in the light of the principle of good faith which
governs all aspects of State behaviour.
1.13 The Court has on several occasions treated international law as primarily concerned with
the substance of issues. As it was put by Vice-President Wellington Koo in his Separate
Opinion in the first phase of the Barcelona Traction case:
"International law, being primarily based upon the general principles of law
and justice, is unfettered by technicalities and formalistic considerations which
are often given importance in municipal law ... It is reality which counts more
than appearance. ... it is substance which carries weight on the international
plane rather than form." (ICJ Reports 1964, at pp. 62-63).
1.14 In looking to substance, the application of international law has to take proper account of
international realities, particularly those concerning the conduct of the business of
Governments at the international level. The Court itself has expressed itself to have been
motivated by a concern not to "lose touch with reality" (Barcelona Traction (Second Phase),
ICJ Reports 1970, at p. 37); and although that statement was made in a different context, that
same motivation is equally compelling in other areas, and particularly where the basis for the
Court's own jurisdiction is concerned.
1.15 The reality is that States are not omniscient. In relation to a Declaration made by another
State under Article 36.2 of the Statute they need to be told of that Declaration. The Statute
recognizes this: Article 36.4 requires the Secretary-General to inform them of the deposit of
such Declarations. It is, no doubt, true that a State, when depositing its Declaration with the
Secretary-General, "is not concerned with the duty of the Secretary-General or the manner of
its fulfilment" (Right of Passage over Indian Territory (Preliminary Objections), ICJ Reports
1957, at p. 146). But the Secretary-General's functions are nevertheless significant for the
overall system established by Article 36.2, ensuring that all parties to the Statute are made
aware of changes in the scope of the Court's compulsory jurisdiction. This awareness is a
necessary part of the need for transparency and good faith in international dealings, and the
Secretary-General's functions in this respect are central to the proper functioning of the
system established by Article 36.2 of the Statute in a society governed by the rule of law.
While the declarant State is not directly involved in the Secretary-General's performance of
the duties resting upon him under Article 36.4 of the Statute, it cannot fail to be affected by itsince those duties are an inseparable part of the system established by that Article. The
Secretary-General's part in that system lies in ensuring that States generally are aware of
developments. Until he has done so, States are in ignorance of the true position and of their
international rights and obligations, and the system cannot operate in the way envisaged by
the Statute: their substantive rights and obligations as they would be if the system were
operating properly are unaffected.
1.16 That system was designed in such a way as to give States participating in it certain rights,
including the right to be informed of relevant action taken by other States. Cameroon, by
failing to allow a reasonable time for the proper operation of the system envisaged by the
Statute, not only acted precipitately but also acted unmindfully of the rights of the other party
to the proceedings (i.e. Nigeria) as guaranteed by the Statute.
1.17 Even if (which Nigeria denies) the deposit by Cameroon of its Declaration under Article
36.2 of the Statute gave it the immediate right to invoke that Article irrespective of any action
that the Secretary-General might take, considerations of good faith and of equity require that
the right be not exercised without other States affected having an opportunity to consider their
position in the knowledge of Cameroon's action, or after the lapse of a reasonable time in
which they might be expected to acquire knowledge of it. These considerations of good faith
and equity obliged Cameroon, before lodging the Application, to have allowed at least such
period to elapse as would reasonably have enabled the Secretary-General to take the action
required of him in relation to Cameroon's Declaration of 3 March 1994. The exercise by
Cameroon of a right which, it implicitly asserts, accrues to it even before other States, and
particularly Nigeria, have any actual or reasonable opportunity to be aware of that alleged
accrual, is a breach of Cameroon's obligation to exercise its rights in good faith, and
constitutes an abuse of those rights.
1.18 These considerations of good faith, and the associated idea of abuse of rights, have been
developed in significant ways since the Court's Judgment in Right of Passage over Indian
Territory (Preliminary Objections), nearly 40 years ago. The Court itself has been cautious in
acknowledging the development as part of international law of the concepts of good faith and
abuse of rights, and in its earlier years clear statements of their role were more often given
expression by individual Judges than by the Court itself; but in more recent years, and since
1957, these associated concepts have been increasingly accepted by the Court. It is even more
true today than it was in 1957 that:
"Unquestionably, the obligation to act in accordance with good faith, being a
general principle of law, is also part of international law" (per Judge Sir
Hersch Lauterpacht, in Norwegian Loans, ICJ Reports 1957, at p. 53).
Particularly in the context of the procedures for the settlement of international disputes by
recourse to the International Court of Justice, the need for States to act in good faith and avoid
any abuse of rights is compelling. This has been accepted by the Court in the specific context
of the system established by Article 36.2 of the Statute:
"In the establishment of this network of engagements, which constitutes the
Optional Clause system, the principle of good faith plays an important role; the
Court has emphasized the need in international relations for respect for good
faith and confidence in particularly unambiguous terms" (Military and
Paramilitary Activities in and against Nicaragua, ICJ Reports 1984, at p. 418).1.19 The importance for the present proceedings of Nigeria having been unaware of
Cameroon's Declaration is accentuated by the fact that considerations of reciprocity are based
not just on the general structure of the system established by Article 36.2 of the Statute, but on
the specific terms of Nigeria's own Declaration. This included the stipulation that Nigeria
accepted the Court's jurisdiction "on the sole condition of reciprocity". Nigeria thus made the
general principle of reciprocity inherent in the agreed terms of Article 36.2 of the Statute into
a specific condition of its own unilateral Declaration which has to be met before it can be
invoked in any given case.
1.20 This specific condition of reciprocity is part of a Declaration which was the product of
unilateral drafting by Nigeria, and has the legal character of a unilateral act. While, as with the
interpretation of all written texts, it is necessary to establish in good faith what meaning is to
be given to words in the light of their ordinary meaning in their context, in the case of
Declarations accepting the Court's compulsory jurisdiction particular weight attaches to their
unilateral character, and in general to the viewpoint of the declarant State. As the Permanent
Court of International Justice said in Phosphates in Morocco, such a Declaration:
"is a unilateral act by which [a] Government accepted the Court's compulsory
jurisdiction. This jurisdiction only exists within the limits within which it has
been accepted" (PCIJ Ser. A/B, No. 74, 1938 at p. 23).
1.21 Referring to the question whether certain situations fell within the scope of a declaration
accepting the Court's jurisdiction, the Court observed that:
"in answering these questions it is necessary always to bear in mind the will of
the State which only accepted the compulsory jurisdiction within specified
limits, and consequently only intended to submit to that jurisdiction [certain
defined] disputes" (ibid., p. 24).
1.22 Earlier in the Judgment the Court had noted the existence of (although it found it
unnecessary to apply) the restrictive principle:
"that, in case of doubt, might be advisable in regard to a clause [scil., the
`optional clause'] which must on no account be interpreted in such a way as to
exceed the intention of the States that subscribed to it" (at p.23).
1.23 Looked at from the point of view of the declarant State - Nigeria - the reciprocity
required by Nigeria's unilateral Declaration is a reciprocity apparent to Nigeria: put another
way, a reciprocal relationship - or the "consensual bond" as the Court has referred to it: Right
of Passage over Indian Territory (Preliminary Objections), ICJ Reports 1957, at p. 146 -
cannot be said to exist with respect to another State of whose participation in the system
established by Article 36.2 of the Statute Nigeria knows nothing. A State which has notice
that another State has in force a Declaration under Article 36.2 is in a position to rely on that
Declaration and to commence proceedings under that provision. A State which does not have,
and has no way of having, such notice is in a fundamentally different position. Between two
States in such different positions there is no reciprocity in fact.
1.24 Moreover it is common for two States, both of whom have in force Declarations under
Article 36.2, to negotiate on some matter in the knowledge that the matter may eventually be
referred to the Court. This facilitates the resolution of disputes without the jurisdiction of theCourt having actually to be invoked. The present situation is quite different. Nigeria has been
subject to what may be called "trial by ambush", in a context which is entirely unequal and
which, far from a condition of reciprocity, places States which have made general
Declarations under Article 36.2 in a distinctly vulnerable position.
1.25 Furthermore, the Indian Declaration which was considered by the Court in Right of
Passage over Indian Territory (Preliminary Objections) accepted the jurisdiction of the Court
"from to-day's date". Nigeria's Declaration contained no such statement. Nigeria's acceptance
of the Court's jurisdiction takes effect in relation to any prospective applicant State only when
the condition of reciprocity has been met, in the sense of that term as it appears in Nigeria's
Declaration. Nigeria only consented by its Declaration to accept the Court's compulsory
jurisdiction on the basis of the existence of a reciprocity of which it was, or had a reasonable
opportunity of being, aware.
1.26 The principle of good faith - both in the interpretation of Nigeria's Declaration, and in
seeking to invoke it as a basis for the Court's jurisdiction - requires no less. To contend that a
State making a Declaration is to be deemed to take into account the possibility that, under the
Statute, it may find itself subjected, at any time and without warning, to the obligations
flowing from Article 36 in relation to another State which chooses to deposit a surprise
Declaration, is to "deem" a result which is not provided for in the Statute, which is contrary to
the principle of good faith now well-established as the basis for inter-State dealings, and
which involves the first-mentioned State having to assume that other States will act in a
manner contrary to their obligations to conduct themselves in accordance with the principle of
good faith. The Court itself acknowledged, some 17 years after the Right of Passage case, that
it was not its function to contemplate that a State would not comply with its obligations
(Nuclear Tests (New Zealand v. France), Judgment, ICJ Reports 1974, p. 457, at paragraph
63; the same language was adopted by the Court in Nuclear Tests (Australia v. France),
Judgment, ibid., p.253, paragraph 60). That pronouncement conforms also to the general
principle that States are entitled to act on the basis that other States will honour their
international obligations.
1.27 The fact that, by the time Cameroon submitted its Amendment on 6 June 1994, Nigeria
had knowledge of Cameroon's Declaration accepting the compulsory jurisdiction of the Court
does not affect the conclusions to which the above considerations lead. Cameroon expressly
requested the Court to join the Amendment to Cameroon's original Application, and to deal
with the whole case as one and the same case, and the Court complied with Cameroon's
request in that sense: Cameroon's request, and the Court's decision, was expressly in terms of
the Amendment being joined to the earlier Application, not the other way round. Since, for
the reasons explained by Nigeria, the Court is without jurisdiction over the matters raised in
the Application, that want of jurisdiction similarly taints the Amendment joined to it.
D: Submissions
1.28 For the above reasons Nigeria submits:
(1) that Cameroon, by lodging the Application on 29 March 1994, violated its
obligations to act in good faith, acted in abuse of the system established by
Article 36.2 of the Statute, and disregarded the requirement of reciprocity established by Article 36.2 of the Statute and the terms of Nigeria's Declaration
of 3 September 1965;
(2) that consequently the conditions necessary to entitle Cameroon to invoke
its Declaration under Article 36.2 as a basis for the Court's jurisdiction did not
exist when the Application was lodged; and
(3) that accordingly, the Court is without jurisdiction to entertain the
Application.
__________
CHAPTER 2
The duty of the Parties to settle all
boundary questions by means of
existing bilateral machinery
A: The bases of the duty
2.1 For a period of at least 24 years prior to the lodging of the Application the Parties have in
their regular dealings accepted a duty to settle all boundary questions by means of the existing
bilateral machinery. In the submission of the Government of Nigeria this course of joint
conduct constitutes an implied agreement to resort exclusively to the existing bilateral
machinery and not to invoke the jurisdiction of the Court.
2.2 In respect of Lake Chad, boundary problems came within the exclusive competence of the
Lake Chad Basin Commission, which was established on the basis of the Convention and
Statute relating to the Development of the Chad Basin, signed at Fort Lamy on 22nd May
1964 (NPO 9). This role of the Lake Chad Basin Commission will be examined in Chapter 3.
2.3 In the alternative, the Government of Nigeria submits that in the circumstances the
Republic of Cameroon is estopped from invoking the jurisdiction of the Court.
2.4 In the further alternative, the Application to the Court constitutes a breach of the principle
of good faith in the light of the commitment to resort to the available bilateral machinery.
2.5 Before a description is given of the bilateral machinery, the attention of the Court is drawn
to the contents of the Memorial, which gives prominence to the pattern of meetings of the
joint Nigeria-Cameroon Boundary Commission, without providing the whole picture: see
paragraphs 2.214 et seq. of the Memorial. However, general recognition of the role of the
Commission appears in Chapter 5, in which Cameroon records that: "En 1970, les deux Etats créèrent une Commission mixte chargée de l'étude du
problème des frontières". (Memorial paragraph 5.09).
(a) This proposition describes an unqualified conferment of responsibility
(`chargée') in relation to the boundaries problem.
(b) The contemporary understanding of the situation is confirmed by the
statement made by Mr. O. Jemiyo, Senior State Counsel of the Federal
Ministry of Justice, in September 1972. In an interview with Dr. Ian Brownlie,
who was conducting research on behalf of the Royal Institute of International
Affairs (London), Mr. Jemiyo stated that boundary problems with Cameroon
were all dealt with by a Joint Commission. In this context it is useful to recall
that Mr. Jemiyo was a member of the Nigerian Delegation at several of the
sessions of the Joint Commission.
B: The bilateral machinery, 1965-94
The Nigeria-Cameroon Joint Boundary Commission, 1965
2.6 The first meeting of the Nigeria-Cameroon Joint Commission took place in 1965 at
Mamfe (Cameroon) (NPO 10) with a further session at Ikom (Nigeria) (NPO 11 & NPO 12).
The subject-matter was a localized problem in the districts of Danare (Nigeria) and Boudam
(Cameroon).
Meetings of the Joint Boundary Commission, 1970-1993
2.7 Bilateral work on boundary issues was interrupted by the internal crisis in Nigeria in 1966
and its aftermath. In the later years of the 1960s the Cameroon Government took initiatives
which challenged the rights of Nigeria and its citizens in the region of the Bakassi Peninsula.
These actions resulted in the deaths of some Nigerians, and the detention of others by the
Cameroon authorities. In these circumstances it became necessary to reconvene the Joint
Commission.
Yaoundé, 12-14 August 1970 : Meeting of the Joint Boundary Commission
2.8 The broad mandate of the Commission is indicated by the agenda proposed by the
Nigerian Delegation, which was as follows:
(1) Peace in the Cross River area. There should be free navigation;
(2) Investigation and demarcation of the boundary from Lake Chad to the sea;
(3) Delimitation of the off-shore boundary; and
(4) Situation in the Bakassi Peninsula. (NPO 13 at p.3).2.9 The outcome of the meeting was the adoption of a declaration on 14 August 1970 (NPO
14). The declaration contains recommendations to the two Governments on a range of
boundary issues, which included recommendations on the convening of technical committees.
Lagos, 15-23 October 1970 : Meeting of the Joint Nigeria/Cameroon Technical
Committee
2.10 As a follow-up to the Yaoundé Meeting, the Joint Technical Committee met in Lagos
from 15 to 23 October 1970: see the Minutes set out at NPO 15. The heads of delegation
signed a brief report dated 23 October 1970 (NPO 16).
Yaoundé, 26 March - 4 April 1971 : Meeting of the Joint Boundary Commission
2.11 The Joint Commission reconvened in Yaoundé in March 1971: see the Report of the
Nigerian Delegation (NPO 17); a Report by the Cameroon Delegation (NPO 18); and the
Declaration signed on 4 April 1971 (NPO 19). After receiving instructions from the two
Heads of State (who were meeting in Yaoundé at the same time), the Commission agreed to
reconvene in Lagos one month later.
Lagos, 14-21 June 1971 : Meeting of the Joint Boundary Commission
2.12 The Joint Boundary Commission reconvened in Lagos for the period 14 to 21 June 1971:
see the Minutes at NPO 20. In the Declaration adopted on 21 June the first paragraph reads as
follows:
"The Nigeria/Cameroon Joint Boundary Commission charged with the
responsibility for the delineation of the Nigeria/Cameroon Boundary met in
Lagos, Nigeria from the 14th to the 21st June, 1971" (NPO 21).
Yaoundé, 4-5 May 1972 : Meeting of the Nigeria/Cameroon Permanent Consultative
Committee
2.13 On 7 April 1971 the Heads of State had agreed to set up a Permanent Consultative
Committee and this body held its first meeting in Yaoundé on 4 and 5 May 1972: see the
Minutes and the Joint Communiqué dated 5 May 1972, (NPO 22). The meeting was at
Foreign Minister level.
2.14 The outcome of this meeting was disappointing and no compromise appeared to be
possible. This state of affairs continued in spite of the meetings of Heads of State at Garoua in
August 1972 (NPO 23) and Kano in 1974 (NPO 24). The Maroua Declaration of 1975 was
also inconclusive (NPO 25).
2.15 In this period there was a hiatus in negotiations but this came to an end during President
Ahidjo's State visit to Nigeria, 11-14 January 1982. During their review of bilateral relations
the Heads of State decided to resume the meetings of the Joint Boundary Commission: see the
draft Joint Communiqué at NPO 26.
Jos, 1-4 November, 1978 : Meeting of the Nigeria-Cameroon Joint Commission2.16 A further session of the original Permanent Consultative Committee was held in Jos
(Nigeria) in 1978 (see generally NPO 27 to NPO 33). The meeting was at Foreign Minister
level and the agenda included "Security along the Border" and "The maritime Border" (NPO
34). The Joint Communiqué, dated 4 November 1978, included the following affirmations:
"2. During the meeting of the Joint Commission, the two delegations reviewed
bilateral relations between their two countries. In this regard, the two
delegations expressed their mutual satisfaction with cordiality, friendship, and
good neighbourliness, which had characterised their bilateral relations.
3. During their discussion, the two delegations agreed on the need for regular consultations
between their two countries in order to further enhance the close and cordial relations which
already exist between them. These consultations should also involve periodical meetings
between the administrative and security authorities on the border." (NPO 35, 36 and 37).
Yaoundé, 24-28 August 1987 : Meeting of the Nigeria-Cameroon Joint Commission
2.17 In 1980 the Government of Cameroon was urging that a further meeting of the Joint
Commission be held : see the Cameroon Note dated 10 June 1980 (NPO 38). Eventually the
Joint Commission met in Yaoundé on 24-28 August 1987: see generally NPO 39 to NPO 50.
The Protocol of the Inaugural Session places emphasis on the resolution of boundary
questions by bilateral action (NPO 51).
Yaoundé 27-30 August 1991 : Joint Meetings of Experts on Boundary Matters
2.18 During the visit of the Nigerian Minister of External Affairs, Major-General
Nwachukwu, to Cameroon in 1991, the experts of the two countries met to discuss items on
the agenda approved by the Heads of Delegation: see the procès-verbal dated 29 August 1991
(NPO 52).
2.19 The content of the procès-verbal is of particular significance, and it clearly indicates the
focus upon an ongoing institutional framework (cadre institutionnel) within which boundary
problems were to be resolved.
2.20 The Joint Communiqué adopted by the Ministers of External Relations on 29 August
1991 contains the following passages:
"On the general state of bilateral cooperation, the two sides lauded the quality
and depth of cooperation resulting from their common affinities and shared
commitment to the ideals of peace, solidarity and progress of the brotherly
people of Cameroon and Nigeria and felt inspired by personal friendship as
well as the political will of the two presidents to strengthen the relations and
fraternal cooperation between the two countries, the two sides noted with
satisfaction the commitment of the two Presidents to maintain more regular
consultations with a view to solving any eventual disputes between the two
countries amicably for mutual satisfaction.
..... In the same view, the two sides agreed on the principle of annual visits of
ministers of foreign affairs of both countries, alternatively in Abuja and
Yaounde. Furthermore, they expressed the wish and the need for the ministers
of interior of the two countries to undertake periodic joint tours of the common
border areas with a view to reinforcing the ties of friendship, brotherliness and
cooperation between the two countries.
On border issues, the two sides agreed to examine in detail all aspects of the
matter by the experts of the National Boundary Commission of Nigeria and the
experts of Republic of Cameroon at a meeting to be convened at Abuja in
October 1991 with a view to making appropriate recommendations for a
peaceful resolution of outstanding border issues, the two sides also agreed to
hold a transborder co-operation workshop in January 1992.
Recalling the commitments expressed by the presidents during their talks at
Abuja on 10 August, 1991, the two sides re-affirmed the need to reinforce the
maintenance of peace along the common border by the administrative and law
enforcement agencies of both countries." (Emphasis added). (NPO 53).
Abuja, 15-19 December 1991: Second Session of the Joint Meeting of Experts on
Boundary Matters
2.21 The work of the Yaoundé Meeting was continued in Abuja in December 1991: see the
Joint Minutes of the Joint Meeting, set out at NPO 54. The agreed Minutes (19 December
1991) contain the following passages:
"The meeting was formally opened by the Honourable Minister of Water
Resources of the Federal Republic of Nigeria, Alhaji Abubakar Hashidu on
behalf of the Honourable Minister of External Affairs and Chairman,
International Boundary Technical Committee of the National Boundary
Commission of Nigeria.
In his address, the Minister noted that the Joint Meeting of Experts was a welcome follow-up
of the memorable and fruitful visit to Yaoundé in August, 1991 which he personally led. He
thus urged the Joint Meeting of Experts in the spirit of fraternal relations between the two
countries, to direct their efforts to the enhancement of peace, harmony and prosperity along
their common borders.
In their general remarks the leaders of the two delegations to the Abuja Meeting recalled the
mandate at Yaounde in August to carry out an in depth analysis of the border issues raised
during the friendly working visit of the Honourable Minister of External Affairs of the
Federal Republic of Nigeria, and expressed the hope that the Joint Meeting of Experts would
achieve that expectation."
Yaoundé, 11-13 August 1993: Third Session of the Joint Meeting of Experts on
Boundary Matters
2.22 The Joint Meeting of Experts held in Yaoundé in August 1993 was part of the series of
such meetings. However, on this occasion the Delegations were headed by the Foreign
Ministers of the two States: see the Joint Minutes adopted on 13 August 1993, (NPO 55).Both the agreed Minutes and the Joint Communiqué (ibid.) indicate that the agenda extended
to a wide variety of boundary questions.
Abuja, 1-5 November 1993: Meeting of the Nigeria-Cameroon Joint Commission
2.23 The second session of the Joint Commission for Economic, Scientific and Technical Co-
operation was held in Abuja in November 1993. The agenda included the problem of water
releases from the Lagdo Dam, and the issue of border co-operation (NPO 4).
C: The Situation early in 1994
2.24 As the Court will have observed, there was a progression of negotiations concerning a
wide variety of boundary questions in several types of joint meeting. At no point had there
been a refusal by Nigeria to continue the operation of the bilateral machinery or a refusal to
discuss boundary issues of whatever kind. Indeed, Nigeria has been forthcoming at both
bilateral and multilateral levels in efforts to resolve boundary problems peacefully. Thus, the
creation of the Lake Chad Basin Commission (1964), the Nigeria-Cameroon Trans-Border
Co-operation Workshop (1992), and the proposed Gulf of Guinea Commission (1993), were
Nigerian initiatives.
2.25 A characteristic of the relations between Nigeria and Cameroon at all material times was
the persistence of bilateral contacts and the absence of any approach to the O.A.U.
2.26 At the time when Cameroon filed the Application on 3 March 1994, only six months had
elapsed since the Joint Meeting of Experts (at ministerial level) in Yaoundé in August 1993,
and only four months had elapsed since the meeting of the Joint Commission at Abuja in
November.
2.27 In the course of January 1994 it was agreed in principle that a Joint Commission should
meet in Buea (Cameroon) and visit the border areas in the south (see NPO 56 to NPO 59). On
7 January 1994 Ambassador Baba Gana Kingibe, Foreign Minister of Nigeria, visited Buea to
deliver a goodwill message from General Sani Abacha.
2.28 The talks were inconclusive but the sequel was a friendly letter from the Nigerian Head
of State, General Sani Abacha, to the President of Cameroon, Mr. Paul Biya, dated 14
February, in which further negotiations were proposed (NPO 60).
2.29 The overall diplomatic picture in 1993 had been normal and Nigeria had been given no
cause to believe that the Government of Cameroon was about to step outside the long-
established commitment to resort to bilateral machinery for the resolution of boundary
problems.
D: The legal implications of the conduct of the Parties
2.30 The consistent pattern of bilateral procedures, the reiterated common intention to use the
bilateral machinery for the resolution of boundary questions, and the absence of any rupture inbilateral relations constitute reliable evidence of an agreement between the Parties not to
resort to the International Court of Justice in relation to boundary questions.
2.31 It is to be noted that the Parties did not advert at any time to the possibility of resorting to
the contentious jurisdiction of the International Court. Indeed, in the period under review
Cameroon was not even a Party to the system of compulsory jurisdiction.
2.32 The relationship established by the conduct of the Parties in the period 1965 to 1994 also
estops Cameroon from resorting to other than bilateral machinery. By her conduct,
particularly in the period 1970 to 1994, Cameroon had clearly and consistently evinced
acceptance of the regime of exclusive recourse to bilateral machinery: see the North Sea
Continental Shelf Cases, 1969, p.26, paragraph 30.
2.33 In the circumstances Nigeria has suffered prejudice as a consequence of the conduct of
Cameroon and thus, in particular:
(1) Nigeria has lost the opportunity to have a system of bilateral contacts which
was flexible and based upon mutual negotiation and agreement. As the Court
will appreciate, the result of acquiring the status of a Party to proceedings is a
serious limitation upon the normal discretion of a State in matters of foreign
policy.
(2) As a result of the lodging of the Application the bilateral machinery has
ceased to function and a valuable procedure for resolving disputes and for
containing border problems of various kinds has been lost.
(3) Nigeria was placed in a position in which it was dealing with Cameroon in
relation to matters which were to figure in the Application without having
knowledge, or means of knowledge, that Cameroon had a hidden and collateral
agenda.
2.34 Nigeria also contends that the Application to the Court, in the light of the pre-existing
commitment to the bilateral machinery, constitutes a breach of the principle of good faith. As
the Court stated in its Judgments in the Nuclear Tests Cases:
"One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international co-operation, in particular in an age
when this co-operation in many fields is becoming increasingly essential. Just
as the very rule of pacta sunt servanda in the law of treaties is based on good
faith, so also is the binding character of an international obligation assumed by
unilateral declaration. Thus interested States may take cognizance of unilateral
declarations and place confidence in them, and are entitled to require that the
obligation thus created be respected." I.C.J. Reports, 1974, p.268, paragraph
46; and see also (Case Concerning Border and Transborder Armed Actions,
ibid., 1988, p.105, paragraph 94).
2.35 The principle of good faith is not itself a source of obligation where none would
otherwise exist, as the Court pointed out in the Armed Actions case, but in the present
proceedings the principle reinforces the principle pacta sunt servanda, more especially whenthe conduct in question involves persistent joint action with the particular purpose of dispute
resolution.
E: Submissions
2.36 For a period of at least 24 years prior to the filing of the Application the Parties have in
their regular dealings accepted a duty to settle all boundary questions through the existing
bilateral machinery.
(1) This course of joint conduct constitutes an implied agreement to resort
exclusively to the existing bilateral machinery and not to invoke the
jurisdiction of the Court.
(2) In the alternative, in the circumstances the Republic of Cameroon is
estopped from invoking the jurisdiction of the Court.
__________
CHAPTER 3
The exclusive competence of the
Lake Chad Basin Commission
A: The Basis of the Exclusive Competence
3.1 Without prejudice to the Second Preliminary Objection, the settlement of boundary
disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad
Basin Commission (L.C.B.C.), established in 1964 pursuant to the Convention and Statute
Relating to the Development of the Chad Basin (NPO 9). In this context the procedures of
settlement within the Commission are obligatory for the Parties. The operation of the dispute
settlement procedures of the L.C.B.C. involved the necessary implication, for the relations of
Nigeria and Cameroon inter se, that the jurisdiction of the Court by virtue of Article 36.2,
would not be invoked in relation to matters within the exclusive competence of the
Commission.
3.2 This interpretation of the relevant instruments is confirmed by the conduct of the Parties
in the period 1983 to 1994. In this period it became clear that the issues concerning boundary
demarcation in Lake Chad had been submitted to the competence of the L.C.B.C. and there is
a presumption that these issues could not be removed from the competence of the organisation
except by the collective agreement of the Member States.3.3 The conduct of Nigeria and Cameroon in the period 1983 to 1994 confirmed that, as far as
the relations inter se of the two States were concerned, boundary questions concerning Lake
Chad were within the exclusive competence of the L.C.B.C. The exclusivity of the
competence of the L.C.B.C. was not affected by the existence of bilateral machinery
concerning the relations of Nigeria and Cameroon in other respects.
B: The Convention and Statute Relating to the Development of the Lake Chad Basin
3.4 The primary purpose of the Convention is the development of the resources of the Basin
for economic purposes, including the optimum utilization of its water resources. The
instrument for attaining this purpose is the L.C.B.C., the Statute of which is annexed to the
Convention and forms an integral part thereof (Article 2 of the Convention) (NPO 9).
3.5 The functions of the L.C.B.C. are defined in Article IX of the Statute as follows:
"The Commission shall have the following functions, inter alia:
(a) to prepare general regulations which will permit the full application of the
principles set forth in the present Convention and its annexed Statute, and to
ensure their effective application;
(b) to collect, evaluate and disseminate information on proposals made by
Member States and to recommend plans for common projects and joint
research programmes in the Chad Basin;
(d) to follow the progress of the execution of surveys and works in the Chad
Basin as envisaged in the present Convention, and to keep the Member States
informed at least once a year thereon, through systematic and periodic reports
which each State shall submit to it;
(e) to draw up common Rules regarding navigation and transport;
(f) to draw up Staff Regulations and to ensure their application;
(g) to examine complaints and to promote the settlement of disputes and the
resolution of differences;
(h) generally, to supervise the implementation of the provisions of the present
Statute and the Convention to which it is annexed."
3.6 Whilst the text does not refer to boundary questions as such, there can be no doubt that the
functions seen overall constitute a comprehensive public order system. Moreover, sub-
paragraph (g) provides expressly for dispute resolution. It is, of course, obvious that the
persistence of boundary problems would inevitably place obstacles in the way of the
development of the resources of the Basin.
3.7 In any event the practice of the Member States of the L.C.B.C. has amply confirmed its
exclusive competence in respect of boundary questions.C: The practice of the Member States
3.8 When the occasion presented itself, the States Parties had no hesitation in assigning
boundary questions to the L.C.B.C. when incidents occurred in the region of Lake Chad in
1983. In response to the border problems an extraordinary session of the Commission was
held in Lagos from 21 to 23 July 1983. At this session two Sub-Commissions were
established to deal respectively with border demarcation and security on Lake Chad. The
implementation of the decisions taken at Lagos was discussed at the twenty-eighth, twenty-
ninth and thirtieth sessions of the L.C.B.C. in 1984 and 1985: see the extracts from the
Minutes of the Thirtieth Session, 22-25 April 1985, pp.83-97 and Annex A (NPO 61).
3.9 In the same period of 1985 the Fifth Conference of the Heads of State of the L.C.B.C. was
held and the Minutes thereof contain the following record of the events of 1983:
"32. Following the border incidents between Nigeria and Chad on the Lake
Chad in April 1983 and the Protocol Agreement between the two countries in
July the same year, the Commission was called in as the forum through which
to effect a permanent settlement of the border problems in the area.
Consequently, an extraordinary session of the Commission, which was held in
Lagos from 21st-23rd July, 1983 set up two Sub-Commissions: one on border
demarcation and the other on security on Lake Chad.
33. From 12-16 November, 1984, the experts on border demarcation and
security on Lake Chad from the four Member States met in Lagos and agreed
on the basic legal documents for future work.
34. The Sub-Commission on border demarcation has drawn up the technical
specifications for the border demarcation, aerial photography and field
mapping that need to be carried out. In view of the fact that the Commission
cannot fund the field work, donor agencies have been contacted. But no
positive response has been received so far." (Minutes of the Fifth Conference
of Heads of State, 29 April, 1985, p.9 (NPO 62)).
3.10 In these Minutes it is indicated in unequivocal terms that the L.C.B.C. was recognised as
"the forum through which to effect a permanent settlement of the border problems in the
area".
3.11 In the subsequent years the process of resolving the boundary problems continued, the
progress being reported in the Minutes under the agenda item "Boundary Demarcation and
Security on Lake Chad". The main references are as follows:
(1) Minutes of the Thirty-first Session, 16-21 December 1985, pp.28-31
(NPO 63).
(2) Minutes of the Thirty-second Session, 6-14 May 1986, pp.45-50 (NPO 64).
(3) Minutes of the Thirty-third Session, 8-9 December 1986, pp.27-33
(NPO 65). (4) Minutes of the Thirty-fourth Session, 25-26 October 1987, pp. 57-62,
Annex L (NPO 66).
(5) Minutes of the Sixth Conference of Heads of States, 28-29 October 1987,
p.10; and the Final Communiqué (NPO 67).
(6) Minutes of the Thirty-fifth Session, 15-16 January 1988, passim (NPO 68).
(7) Minutes of the Special Session of the Lake Chad Basin Commission, 1-2
August 1988, pp.4-6 (NPO 69).
(8) Minutes of the Thirty-Sixth Session, 30 November - 1 December 1988,
pp.22-23, 29; Annex J (NPO 70).
(9) Minutes of the Thirty-seventh Session, 23-24 May 1989, passim (NPO 71).
(10) Minutes of the Thirty-eighth Session, 26-30 November 1989, pp.8-9, 31;
Annex G (NPO 72).
(11) Minutes of the Seventh Conference of Heads of States, 13-14 February
1990, (NPO 73).
(l2) Minutes of the Thirty-ninth Session, 20-21 November 1990, passim
(NPO 74).
(13) Minutes of the Fortieth Session, 15 January 1992, p.2; Annex D (NPO
75).
(14) Minutes of the Forty-first Session, 6 April 1993, pp.2, 11-13; Annex F
(NPO 76).
(15) Minutes of the Eighth Summit of the Heads of State and Government, 21-
23 March 1994, pp.5-6, 13; and the Final Communiqué (NPO 77).
3.12 Whilst the Government of Nigeria reserves its position on the finality of the decisions
adopted at the Eighth Summit of Heads of State, there can be no doubt that the L.C.B.C. has
been, and continues to be, the exclusive forum for boundary issues in relation to Lake Chad.
D: The legal implications of the practice of the Member States
3.13 The L.C.B.C. is a regional agency with an exclusive competence within its defined scope
of operation. The Statute of the Commission provides, in Article XVII, that "the Commission
shall have for all purposes the status of an international Organisation". The powers of the
organisation include the resolution of disputes and issues relating to the area of Lake Chad
and the utilization of its resources. Such questions clearly include boundary demarcation and
security problems in the boundary zones. There are obvious links between security and the
need for demarcation.3.14 This view of the competence of the L.C.B.C. is confirmed by the subsequent practice of
the Member States in the period 1983 to 1994.
3.15 Given the regional character of the L.C.B.C. there is a strong presumption that its
competence in matters of dispute resolution is exclusive. This character of exclusiveness
could be qualified legally only by the express consent of all the Member States. It is to be
noted that at no time did the Member States, individually or collectively, refer to the
possibility of recourse to arbitration or judicial settlement. Moreover, for the period in
question Cameroon was not a party to the system of compulsory jurisdiction.
3.16 The presumption of exclusiveness is justified by a further consideration. Given the
geographical realities and the history of boundary making within Lake Chad, any
delimitation, or consequential demarcation, would be opposable to all the riparian States. The
multilateral aspect of boundary issues within the Lake would be the more evident if the
analogy with the principles of maritime delimitation were to be recognised by the Court.
3.17 There was an ongoing procedure of dispute resolution for more than twelve years within
an institutional framework. Such a procedure is not to be compared with ad hoc political
negotiations, which cannot provide an appropriate alternative to the jurisdiction of the Court.
3.18 The relationship established by the conduct of the Parties in the period from 1983 to
1994 also estops Cameroon from resorting to other machinery. By her conduct Cameroon had
clearly and consistently evinced acceptance of the regime of exclusive recourse to the
L.C.B.C.: see the North Sea Continental Shelf cases, 1969, p.26, paragraph 30.
3.19 In the circumstances Nigeria has suffered prejudice as a consequence of the conduct of
Cameroon and thus, in particular:
(1) Nigeria has lost the opportunity to utilize a system which was based upon
mutual negotiation and agreement; and
(2) as a result of the filing of the Application, the work of the L.C.B.C. has
been substantially impaired.
3.20 Nigeria also contends that the sudden variation in the conduct of Cameroon and the
Application to the Court, in the light of the pre-existing commitment to the procedure within
the L.C.B.C., constitutes a breach of the principle of good faith. As noted above in paragraph
2.34, the Court stated in its Judgments in the Nuclear Tests Cases:
"One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international co-operation, in particular in an age
when this co-operation in many fields is becoming increasingly essential. Just
as the very rule of pacta sunt servanda in the law of treaties is based on good
faith, so also is the binding character of an international obligation assumed by
unilateral declaration. Thus interested States may take cognizance of unilateral
declarations and place confidence in them, and are entitled to require that the
obligation thus created be respected." I.C.J. Reports, 1974, p.268, paragraph
46; and see also (Case Concerning Border and Transborder Armed Actions,
ibid., 1988, p.105, paragraph 94).3.21 As stated above in paragraphs 2.34 and 2.35, the principle of good faith is not itself a
source of obligation where none would otherwise exist, as the Court pointed out in the Armed
Actions Case, but in the present proceedings the principle reinforces the principle pacta sunt
servanda, more especially when the conduct in question involves persistent joint action with
the particular purpose of dispute resolution.
E: Submissions
3.22 Without prejudice to the Second Preliminary Objection, the settlement of boundary
disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad
Basin Commission, and in this context the procedures of settlement within the Lake Chad
Basin Commission are obligatory for the Parties.
3.23 The operation of the dispute settlement procedures of the Lake Chad Basin Commission
involved the necessary implication, for the relations of Nigeria and Cameroon inter se, that
the jurisdiction of the Court by virtue of Article 36.2, would not be invoked in relation to
matters within the exclusive competence of the Commission.
__________
CHAPTER 4
The Court cannot determine the tripoint in Lake Chad
A: The Objection
4.1 In the context of, and supplemental to, the Third Preliminary Objection, it should be noted
that the issue of the location of the tripoint within Lake Chad directly affects a third State (the
Republic of Chad). This raises the question whether the Court can determine the location of
the tripoint in the present proceedings.
4.2 In the Case concerning the Frontier Dispute (Burkina Faso v Mali) ICJ Reports 1986 p
554, a Chamber of the Court held that "its jurisdiction is not restricted simply because the
end-point of the frontier lies on the frontier of a third State not a party to these proceedings"
(ibid. at p 577 (paragraph 46)). The Chamber relied on the proposition that the rights of the
third State in question would be protected by Article 59 of the Statute. The following passage
of its judgment is particularly relevant for the purposes of this Preliminary Objection. After
referring to the decision of the Court in Continental Shelf (Libyan Arab Jamahiriya/Malta)
ICJ Reports 1985 at p.26 (paragraph 21), the Chamber stated:
"...the process by which a court determines the line of a land boundary between
two States can be clearly distinguished from the process by which it identifies the principles and rules applicable to the delimitation of the continental shelf.
The legal considerations which have to be taken into account in determining
the location of the land boundary between parties are in no way dependent on
the position of the boundary between the territory of either of those parties and
the territory of a third State, even where, as in the present case, the rights in
question for all three States derive from one and the same predecessor State.
On the other hand, in continental shelf delimitations, an agreement between the
parties which is perfectly valid and binding on the treaty level may, when the
relations between the parties and a third State are taken into consideration,
prove to be contrary to the rules of international law governing the continental
shelf (see North Sea Continental Shelf, I.C.J. Reports 1969, p. 20, paragraph
14; pp. 27-28, paragraphs 35-36). It follows that a court dealing with a request
for the delimitation of a continental shelf must decline, 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." [ibid. at pp. 578 (paragraph 47)].
4.3 The present case differs from the Case concerning the Frontier Dispute (Burkina Faso v
Mali) in a number of important respects.
4.4 First, that was a case brought by Special Agreement, under which the parties mandated the
Chamber to determine the whole extent of their common frontier, extending throughout the
disputed area: see the Chamber's statement to this effect, ibid. at p. 577 (paragraph 46). By
contrast, the present case is brought without any form of prior notice by a State which had
shortly before deposited a Declaration under Article 36 (2) of the Statute (NPO 6), and
therefore without any agreement or attempt at an agreement between the parties defining the
areas that are in dispute. Nigeria has not accepted - as Mali had done by entering into the
Special Agreement in that case - that the whole of the disputed area appertains either to it or
to the other party.
4.5 Secondly, in the Case concerning the Frontier Dispute (Burkina Faso v Mali), Niger was
treated as wholly a third party with respect to the proceedings. As the Chamber noted:
"The Parties could at any time have concluded an agreement for the
delimitation of their frontier, according to whatever perception they might have
had of it, and an agreement of this kind, although legally binding upon them by
virtue of the principle pacta sunt servanda, would not be opposable to Niger. A
judicial decision... merely substitutes for the solution stemming directly from
their shared intention, the solution arrived at by a court under the mandate
which they have given it. In both instances, the solution only has legal and
binding effect as between the States which have accepted it, either directly or
as a consequence of having accepted the court's jurisdiction to decide the case.
Accordingly, on the supposition that the Chamber's judgment specifies a point
which it finds to be the easternmost point of the frontier, there would be
nothing to prevent Niger from claiming rights, vis-à-vis either of the Parties, to
territories lying west of the point identified by the Chamber." [ibid. at pp. 577-
8 (paragraph 46)].4.6 But for the reasons already given in Chapter 3 above in relation to the Third Preliminary
Objection, the position of the various States parties to the Lake Chad Basin Commission, and
its associated agreements and arrangements, is not that of simple third parties. They have been
and are involved in the processes of boundary fixing, resource management, settlement of
disputes, etc. so far as they relate to Lake Chad. They have treaty relations with Nigeria and
Cameroon with respect to these matters. These are not simply res inter alios acta.
4.7 In the Case concerning the Frontier Dispute (Burkina Faso v Mali), Burkina Faso
suggested that the problem of determining a tripoint did not really arise, since Niger too was,
under the Niamey Protocol of 23 June 1964, bound by the relevant French documents as to
the location of the tripoint. But the Chamber did not accept that argument. It said:
"From the mere fact that the same documents are used as the starting-point for
the Chamber's reasoning and for the negotiations between Burkina Faso and
Niger, it cannot be inferred that the practical conclusions reached in both
operations, regarding the location of the end-point of the frontier between
Burkina Faso and Mali, would necessarily be the same. It is clear that the
interpretation given by the Chamber, for the purposes of this case, of the 1927
Order and its erratum will not be opposable to Niger, which has not
participated in the proceedings and consequently has been unable to state its
views. Mali further claims... that the Order of 1927 was invalidated by a
factual error and is therefore inapplicable. This argument, the correctness or
otherwise of which has to be decided by the Chamber, does not at first sight
appear to have been put forward in the context of the Niamey Protocol; but this
is again a matter outside the jurisdiction of the Chamber, which has not been
called upon by the parties to that Protocol to interpret it." [ibid. at pp. 579
(paragraph 48)].
4.8 In the present case the Court will be called on to interpret each of the instruments
affecting Lake Chad, and especially those associated with the purported "demarcation" carried
out by IGN. If that demarcation is ineffective, for example because required ratifications have
not been forthcoming, it is ineffective as against all the States parties to it, and not only as
between Nigeria and Cameroon. The regime of Lake Chad is subject to multilateral
cooperation, and is not susceptible to the thorough-going bilateralisation which the Chamber
adopted in the Case concerning the Frontier Dispute (Burkina Faso v Mali).
4.9 Thirdly, the record shows that it is not the case that the third party is merely theoretically
or contingently involved in the question of the boundaries. There have been clashes between
Nigeria and Chad in and in relation to Lake Chad.
4.10 Finally, some comment is called for as to the distinction which the Chamber drew in this
context between the delimitation of continental shelf and land boundaries (see above,
paragraph 4.2). It should be noted that the rules of law applicable to the delimitation and
demarcation of boundaries in large lakes, such as Lake Chad, are not necessarily to be
identified with those applicable to ordinary land boundaries. Criteria of equidistance,
proportionality and equity, considerations of navigability and access to resources, have been
applied to the delimitation of lacustrine boundaries, especially in large lakes. By contrast
these criteria have limited relevance to land boundaries stricto sensu (including rivers and
other watercourses).4.11 For the reasons given above, this Court should not determine in these proceedings - as
unilaterally instituted by the Cameroons and as presently constituted - the boundary in Lake
Chad to the extent that that boundary constitutes or is determined by the tripoint in the lake.
Whether the matter is considered as one going to the Court's jurisdiction (on the analogy of
the principle in the Monetary Gold Case ICJ Reports 1954 p. 32 as applied by the Court, most
recently, in the Case concerning East Timor ICJ Reports 1995 p. 90) or as to the admissibility
of the proceedings (on the analogy of cases such as the Northern Cameroons Case ICJ
Reports 1963 p. 32) does not affect the matter. On either analysis the present proceedings
should not be entertained to the extent indicated above.
B: Submission
4.12 The Court should not in these proceedings determine the boundary in Lake Chad to the
extent that that boundary constitutes or is constituted by the tripoint in the Lake.
__________
CHAPTER 5
There is no dispute concerning boundary delimitation
from the tripoint in Lake Chad to the sea
A: There is no dispute concerning delimitation
5.1 In the submission of Nigeria there is no dispute concerning boundary delimitation as such
throughout the whole length of the boundary from the tripoint in Lake Chad to the sea. There
is, quite simply, no evidence of such a dispute, and it is not surprising that no evidence is
presented either in the Application or in the Amendment.
5.2 Thus the fifth Preliminary Objection of Nigeria can be particularised as follows:
(1) there is no dispute in respect of the boundary delimitation as such within
Lake Chad, subject to the question of title to Darak and adjacent islands
inhabited by Nigerians;
(2) there is no dispute relating to the boundary delimitation as such from the
tripoint in Lake Chad to Mount Kombon;
(3) there is no dispute relating to the boundary delimitation as such between
Boundary Pillar 64 on the Gamana River and Mount Kombon; and (4) there is no dispute relating to the boundary delimitation as such between
Boundary Pillar 64 on the Gamana River and the sea.
5.3 This Preliminary Objection is without prejudice to the title of Nigeria over the Bakassi
Peninsula.
5.4 The conduct of Cameroon has been apparently intended to portray Nigeria as challenging
the territorial status quo and posing threats to the stability of boundaries. The truth of the
matter is very different. In the view of the Nigerian Government it was the actions of
Cameroon which challenged the status quo and this particularly in the region of the Bakassi
Peninsula.
5.5 As a further element in this distorted picture, Cameroon contends in effect that Nigeria is
posing a challenge to the entire land boundary between the two States. This is not the case and
the documentation available proves the contrary.
5.6 It is instructive in this connection to peruse the diplomatic notes sent by Nigeria to the
Applicant State in the period immediately after the Application was filed. The tone is friendly
and practical and there are no references to wide-ranging boundary questions. Thus in Note
No. 72 dated 14 April 1994 (NPO 78), which concerns alleged expulsions of Cameroonians,
the following passage appears:
"As the Cameroonian Authorities are perfectly aware, it has always been the
policy of the Federal Government of Nigeria to localize and resolve through
dialogue and negotiations, any dispute that may arise between Nigeria and her
neighbours such as the one over Bakassi, rather than to create or exaggerate
additional areas of conflict. It is the fervent hope of the Federal Government of
Nigeria that the Cameroonian Authorities are similarly committed to the
peaceful resolution of disputes."
5.7 In another Note (No. 73) of the same date (NPO 79) the Nigerian Government makes
clear that the issues are limited in scope. Once again, the tone is restrained. In the terms of the
Note:
"The Nigerian Government fully recognizes Kontcha as clearly within
Cameroonian Territory and lays no claims to it whatsoever. If indeed Nigerian
nationals have illegally occupied that locality, it is entirely without the
knowledge, encouragement or support of the Government of Nigeria. There is
therefore no question of the Nigerian Authorities recalling the said Nigerian
nationals since it did not send them to Kontcha.
Nigeria recognizes that Kontcha is within the sovereign right of the Republic of Cameroon to
apply her relevant laws within her territory on immigrants or visitors from other countries
who have not met legal entry requirements. The Federal Government however rejects the
insinuation that there is a pattern to the alleged occupation of Cameroonian territory by
Nigerian nationals as a prelude to Military occupation.
It is both unfortunate and unacceptable that Darak which has always been part and parcel of
Wulgo District of Ngala Local Government area of Borno State of Nigeria and which hassince time immemorial been administered as such, is now being claimed as part of
Cameroonian territory.
As regards the Bakassi Peninsula, the Cameroonian Authorities are perfectly aware that the
dispute over its ownership is now before the International Court of Justice. Until it is finally
resolved therefore, it is absolutely inappropriate to use it illustratively as in the specific case
of Kontcha."
5.8 The position of the Nigerian Government was presented more fully in its Note No. 215
dated 20 April 1994 (NPO 80). No reference is made to problems other than the question of
title to the Bakassi Peninsula.
5.9 The evidence indicates that there are certain matters in issue but they do not relate to
delimitation of the sectors of the land boundary between the Lake Chad tripoint and the sea.
The issues relating to Lake Chad concern demarcation exclusively and when Cameroon, in its
Note dated 8 April 1994 (NPO 81), asserted that Nigeria was claiming Kontcha (in the
Adamawa province of Cameroon). Nigeria promptly put the record straight (NPO 78,79 and
80). Thus Nigeria has studiously avoided placing the boundary alignment as a whole in issue.
B: The absence of reference to a dispute in the Proceedings of the Joint Commissions
5.10 The principal series of meetings of the Joint Commissions spans the period 1970 to
1994. A careful examination of the agreed Minutes and Joint Communiqués produced by the
various sessions confirms the complete absence of any reference to a dispute concerning the
delimitation of the land boundary between the tripoint in Lake Chad and the sea.
5.11 It will be sufficient to provide a sample of the meetings. The Declaration produced by
the Joint Boundary Commission on 21 June 1971 (NPO 21) referred only to issues of inshore
maritime delimitation. In 1991 a Joint Meeting of Experts on Boundary Matters was held in
Yaoundé on the 27 to 30 August. The agreed Minutes of the Meeting of Experts refer to the
state of the work on demarcation in Lake Chad and to the maritime boundary. Otherwise,
under the rubric "Land Boundary", there is the passage:
"The two sides noted with satisfaction that the land border has been well
defined and that there are no major problems at this level. They accepted the
principle of the identification and densification of boundary pillars." (NPO 82).
5.12 The third session of the Joint Meeting of Experts on Boundary Matters took place at
Yaoundé on 11 to 13 August 1993. The agreed Minutes, dated 13 August 1993 (NPO 55),
contain no reference to a dispute concerning delimitation of the land boundary.
C: The absence of references to a dispute in the Declarations of the Heads of State
5.13 In the various meetings of the two Heads of State in 1972, 1974 and 1975, the
Communiqués resulting contain no reference to a dispute relating to delimitation of the landboundary. The discussions were exclusively concerned with certain aspects of maritime
delimitation.
D: The content of the Application and the Amendment
5.14 The content of the Application, in its original form, is of considerable significance. This
document begins: "The dispute is essentially centred on the issue of sovereignty over the
Bakassi peninsula ...". The Application makes no reference to the boundary in the sector
under examination here.
5.15 In the Amendment, introduced on 6 June 1994, Cameroon asserts, without any
justification, that the entire land boundary is in issue. Thus under the rubric "objet du
différend" the following appears:
"Cet aspect du differend porte essentiellement sur la question de la
souveraineté sur une partie du territoire camerounais dans la zone du Lac
Tchad - située entre les frontières Cameroun-Nigéria et Cameroun-Tchad
jusque vers le milieu des eaux restantes - dont la République Fédérale du
Nigéria conteste l'appartenance à la République du Cameroun et sur tracé de la
frontière entre la République du Cameroun et la République Fédérale du
Nigéria du lac Tchad à la mer. Ce faisant, le Gouvernement de la République
Fédérale du Nigéria conteste, une fois de plus, la frontière établie de longue
date entre les deux pays et qui a fait récemment l'objet de précision dans un
cadre multilatéral." (Emphasis added)
5.16 The Amendment provides no evidence to justify this gratuitous and unreasonable
assertion. The document includes some reference to the issue of demarcation in relation to
Lake Chad, but that is all.
E: The content of the Memorial
5.17 The Memorial contains the same assertions: see paragraphs 1.07 - 1.13. However, like
the Application, the Memorial provides no evidence to support the assertion that the entire
land boundary is in dispute.
5.18 Not only does the Memorial produce no evidence to support the thesis but it fails to
explain the lack of reference to such a dispute in the extensive documentation concerning the
relations of the two Parties. Moreover, the relations of the Parties are caricatured and so, for
example, it is alleged that the "frontier dispute" has lasted thirty years (paragraph 1.30).
5.19 The unsupported statements in the Memorial look particularly odd when they are
compared with the statements accepted by Cameroonian Ministers in 1991 and 1993. The
Joint Communiqué adopted by the Ministers of External Relations on 29 August 1991
contains no reflection of such a frontier dispute (NPO 83) and the same is true of the Minutes
of the Ministerial Meeting at Yaoundé, 11 to 13 August 1993 (NPO 55).F: The character of the problems relating to the boundary
5.20 The evidence available to Nigeria provides indications of encroachments and incursions
by the Cameroonian authorities and, or, Cameroonian private interests, upon the legally
established boundary. Allegations of a similar character mutatis mutandis are to be found in
the Application and Memorial. In the submission of Nigeria such incidents involve localized
problems, and are frequently the result of an absence of effective demarcation. Such issues are
unrelated to any issue of principle concerning the alignment of the boundary as such.
G: Conclusion
5.21 In conclusion, there is no dispute relating to the boundary delimitation as such from the
tripoint in Lake Chad to the sea. In so far as encroachments and incursions (from whatever
side) raise localized problems of demarcation or improved demarcation of the boundary, such
problems are not appropriate for resolution by a process of adjudication.
H: Submissions
5.22 (1) In the submission of Nigeria there is no dispute concerning boundary delimitation as
such throughout the whole length of the boundary from the tripoint in Lake Chad to the sea,
and in particular:
(a) there is no dispute in respect of the boundary delimitation as such within
Lake Chad, subject to the question of title to Darak and adjacent islands
inhabited by Nigerians;
(b) there is no dispute relating to the boundary delimitation as such from the
tripoint in Lake Chad to Mount Kombon;
(c) there is no dispute relating to the boundary delimitation as such between
Boundary Pillar 64 on the Gamana River and Mount Kombon; and
(d) there is no dispute relating to the boundary delimitation as such between
Pillar 64 on the Gamana River and the sea.
(2) This Preliminary Objection is without prejudice to the title of Nigeria over the Bakassi
Peninsula.
__________ CHAPTER 6
There is no basis
for a judicial determination that Nigeria bears
international responsibility for alleged frontier incursions
A: The Objection
6.1 Cameroon has not supplied the Court with adequate or reliable information to enable the
Court to make a fair and effective judicial determination of the matters of international
responsibility raised by Cameroon.
B: Background
6.2 In the Application statements are made about alleged incursions by Nigerian State or
private interests across the border and into territory allegedly under the sovereignty of
Cameroon, and about incidents arising from such alleged incursions. The Application raises
general claims relating to questions of State responsibility on the part of Nigeria said to arise
out of those incursions and associated incidents, and seeks reparation for the violations of
international law said to have been committed by Nigeria.
6.3 The references in the Application to various alleged border incidents are set out in Part A
of NPO 84. Nigeria also sets out in Part B of the same Annex the references in the
Amendment to various alleged border incidents. Virtually all of these allegations are
unspecific as to the basic facts of the alleged incidents, as to the precise location where they
are said to have taken place, or as to the date(s) on which they are said to have taken place, or
as to all those matters. Even when some of those details are sometimes provided, the essential
nature of the alleged incursion remains unclear.
6.4 A particularly glaring example of this fundamental inadequacy is the reference in
paragraph 17(f) of the Amendment to "repeated incursions of Nigerian groups and armed
forces into Cameroonian territory, all along the frontier between the two countries...". It is
solely on this vague and unsubstantiated assertion (which was not adverted to in the main
body of the Amendment or in the original Application) that Cameroon sought in the
Amendment to put in question the whole length of the frontier between Lake Chad and the
sea.
6.5 Nigeria must initially observe that as to the substance of these allegations it categorically
rejects Cameroon's account, and the construction Cameroon puts upon the alleged events.
C: Legal considerations6.6 When proceedings are instituted by application, Article 38.1 of the Rules of Court requires
that "the application shall indicate the party making it, the State against which the claim is
brought, and the subject of the dispute". This general provision is amplified by paragraph 2,
which provides that the "application shall specify as far as possible the legal grounds upon
which the jurisdiction of the Court is said to be based; it shall also specify the precise nature
of the claim, together with a succinct statement of the facts and grounds on which the claim is
based". The inadequacy of the Application in relation to the alleged grounds of jurisdiction
has already been commented upon (paragraph 1.8 above); as regards the second limb of this
provision (concerning the facts) it is noteworthy that it is not qualified by the words "as far as
possible", but is absolute and peremptory - "shall ... specify the precise nature of the claim".
There has to be a "statement of the facts", which must be "succinct".
6.7 This provision in the Rules of Court has to be seen alongside Article 79. Under this
Article objections to admissibility are "to the admissibility of the application". It is thus the
adequacy of the original Application which is immediately in question, rather than any
question as to the adequacy of the Amendment (which is dependent for its efficacy on the
admissibility of the original Application) or the Memorial. But even if account is taken of the
contents of the Amendment or Memorial in this context, the fundamental inaccuracies and
inadequacies remain. For the most part, Nigeria still remains in the dark as to the precise
circumstances, date and location of all the alleged incursions and incidents relied upon by
Cameroon.
6.8 The sense of the requirement imposed by Article 38 is that enough detail must be provided
by the Applicant State to enable the Respondent State to know from the terms of the
Application enough about the charges made against it for it to determine its response.
Although Article 38 requires the statement of facts to be "succinct", that term connotes a
combination of brevity and clarity: it is not a licence to assert facts with extreme generality,
vagueness and imprecision.
6.9 While a State has some latitude in expanding later upon what it has said in its Application,
and in particular in doing so in its Memorial, it is in essential respects restricted to the case it
has presented in its Application. Had Cameroon chosen, in its Memorial, to give full details of
the incursions and incidents initially identified in the Application, that might have constituted
an acceptable amplification of the Application: but Cameroon did not choose that course, and
instead continued, in the Memorial, to make vague, unspecific and unsubstantiated allegations
about the alleged incursions and incidents. Although in the Memorial Cameroon does offer
some detail of some of the alleged incidents, its Memorial is still replete with wild assertions
of unlawful conduct by Nigeria.
6.10 Thus in relation to the South-West Province, Cameroon asserts that "For years, the
Bakassi Peninsula region has been the scene of serious and repeated incursions by Nigeria"
(paragraph 6.12): in fact, Cameroon goes on to cite, and give some information about, only
two incidents - those of 16 May 1981 (paragraphs 6.13 -6.27), and of January/February 1994
(paragraphs 6.28 - 6.46); furthermore, the first of those incidents was that already referred to
in paragraph 34 of the Introduction above, where the Memorial so distorts the true position as
to regard as a Nigerian incursion an incident in which it was five Nigerians who were killed,
and it was Cameroon which apologized and offered to pay compensation.
6.11 Similarly, the Memorial asserts that "incursions by the Nigerian navy into Cameroonian
territorial waters off the Bakassi Peninsula have been incessant since the end of the 1960s"(paragraph 6.47), and that such incidents have occurred with "frequency and regularity" - a
circumstance which is said to make it impossible to give an exhaustive list of them, and which
suggests that a "few revealing examples" will be good enough: only five purported incidents
are then mentioned, each wholly inadequately supported by hard facts -
6.11.1 the first (paragraph 6.50) is based on a one-sentence press agency report
on 1 July 1970, giving no date for the alleged incident (the date used in the
Memorial is the date of the press report), refers only to "incidents [which] have
occurred recently", says nothing about where the alleged incidents took place
other than they were "at sea" and took place "in Cameroonian waters", and
gives no details of the alleged incidents other than that they involved stopping
and searching Cameroonian fishing vessels;
6.11.2 the second (also paragraph 6.50) is based simply on an internal
communication dated 18 July 1984 between Cameroonian authorities, with no
other supporting authority - and, indeed, that internal communication is itself
not a direct source of evidence of the alleged incident but is in its turn based
only on an unspecified "reliable source" ("source digne de foi"): this aspect of
the matter was concealed by Cameroon's incomplete quotation in the Memorial
of the relevant document (MC.271);
6.11.3 the third (paragraph 6.52) involves an assertion that Nigerian authorities
"regularly conducted patrols in our territorial waters": this is based only on an
internal document "drafted" within the Cameroonian Government in December
1985, based on a report more than two weeks previously from a Sub-
Prefecture, which gave no details of dates or circumstances of the alleged
patrols;
6.11.4 the fourth (also paragraph 6.52) is based on an internal Cameroonian
report dated 25 July 1986, recording an event said (but with only the barest
supporting detail) to have occurred a month earlier; the report as quoted in the
Memorial is an inaccurate version of the text given at MC.280 in that it omits,
without any indication that there has been an omission, the sentence from the
report acknowledging that the incidents occurred in an area which had never
had an agreed boundary;
6.11.5 the fifth (paragraph 6.53) is again based only on an internal
Cameroonian text of 27 August 1991 reporting a Cameroonian mission to
Jabane and referring to an alleged incident which (according to MC.311, but
not cited in the Memorial) occurred on 12 August 1991, and again gives
virtually no supporting detail associating the vessels said to have been involved
with Nigeria; again the text quoted in the Memorial is incomplete, in that it
omits the passage from the report which records that the mission found no
frigate flying a foreign flag moored off Jabane.
It is noteworthy that these paragraphs of the Memorial make no mention of any Cameroon
diplomatic protests to Nigeria about these incidents, which might have served to identify
them.6.12 To take one further, and clear, example, reference has already been made (in paragraph
6.4 above) to the vague and unsubstantiated reference in paragraph 17(f) of the Amendment
(not in the body of that Amendment, or even in the Application) to "repeated incursions ...
into Cameroonian territory, all along the frontier between the two countries". This, as the sole
basis advanced by Cameroon for putting in question the whole frontier from Lake Chad to the
sea, is not only wholly inadequate for that purpose, but it is also inadequate for any purpose of
establishing any international responsibility on the part of Nigeria. It is also an inadequate
starting point in the Application for any subsequent amplification in the Memorial: the
Memorial can, at best, only fill out the details of matters which have been identified with
sufficient particularity in the Application. Nigeria thus rejects, as in principle improper, any
purported amplification of those alleged incursions in the Memorial. Furthermore, in practice,
even if those paragraphs of the Memorial may properly be referred to in order to fill out
paragraph 17(f) of the Amendment, it is apparent that they do not in fact add anything
significant to the vague and inadequate allegation in paragraph 17(f). The alleged incidents
there stated to have taken place "all along the frontier" would seem to be those dealt with at
paragraphs 6.90 - 6.109 of the Memorial; and those incidents are the following:-
6.12.1 Nigeria's alleged occupation of Typsan (part of Kontcha) (paragraphs
6.90 -6.95) in, apparently (no date is given in the Memorial), early 1994; (and
it should be observed that one of the documents relied upon by Cameroon in
this context is dated 12 April 1994 (MC.355), which is thus subsequent to the
date of the filing of the Application);
6.12.2 alleged abduction of a Cameroonian citizen on 29 May 1989
(paragraphs 6.96 - 6.99), scant supporting details being given;
6.12.3 alleged arrest of four Cameroonian citizens on 6 July 1992 (paragraphs
6.100 - 6.103), scant supporting details being given in a report six weeks after
the event;
6.12.4 alleged incidents at Mbelogo on 26 January 1994 (paragraphs 6.104 -
6.107) and 26 September 1994 (paragraphs 6.108 - 6.109).
Thus the wild allegation of incidents "all along the frontier" turns out to refer to alleged
incidents at only 4 villages along the length of the 1,680 km. frontier. In respect of all four
alleged incidents the details provided in the Memorial are wholly inadequate as a basis for
determining the international responsibility of a State. (In any event the last of those incidents
- that alleged to have occurred on 26 September 1994 - must be disregarded as it is subsequent
to the date of the filing of the Application).
6.13 The rest of this part of the Memorial is similarly exaggerated, unspecific and generally
inadequate as a basis for consideration, either by Nigeria or the Court, of questions of State
responsibility. It may be convenient for Cameroon to say that incidents have been so frequent
and regular "that it is impossible to give an exhaustive list of them" (paragraph 6.50), or that
"it would be fastidious to submit an exhaustive list of border incidents attributable to Nigeria
... [and that a] few of the more significant ones will be selected for illustrative purposes"
(Memorial, paragraph 6.11), but for Nigeria it is unacceptable to have allegations of Nigeria's
international responsibility advanced on such a flimsy basis. Exaggerated assertions of
unlawful acts do not afford any legal basis for holding a State internationally responsible for
them. If a State's international responsibility is to be invoked, the State which takes it uponitself to do so also takes upon itself the obligation to identify the circumstances with all
necessary precision.
6.14 Apart from the express requirement of the Rules of Court that there must be a statement
of the necessary facts, it is a general principle, essential in the administration of justice, that
those charged with wrongdoing must be informed with considerable precision of the detailed
facts which are said to constitute that wrongdoing. International responsibility is a very
serious matter for a State: any allegation that a State bears international responsibility for
various acts, with a corresponding obligation to make suitable reparation therefor, has to be
supported by sufficient factual detail to warrant so serious an allegation. Formal, public but
unsupported allegations of that kind are themselves a wrong against the State against which
the allegations are made.
6.15 In the circumstances of the Application, an essential element in any international
responsibility attaching to Nigeria is that Nigerian armed forces made incursions across the
international frontier and into territory subject to Cameroon sovereignty. In a case where the
Applicant State puts in issue the delimitation of the boundary, it is inappropriate for that State
at the same time to raise questions of international responsibility said to arise from incursions
across a boundary which ex hypothesi it regards as in issue. Any question of State
responsibility arising from incursions across an international frontier depends for its answer
upon knowing where the incursion is said to have occurred in relation to where the frontier is
said to lie: a Nigerian 'incursion' into an area which is in law a part of Nigeria clearly gives
rise to no international responsibility on the ground of the violation of some other State's
territorial sovereignty.
6.16 Yet the Application and Amendment are generally inadequate as regards the specific
locations at which alleged incursions (and associated incidents) are said to have taken place in
relation to the location of the frontier between Nigeria and Cameroon. None of the references
to incursions and associated incidents which are set out in NPO 84 gives any information in
this respect, other than conveying the general inference that the places mentioned by
Cameroon are within territory lying on what Cameroon regards as the Cameroonian side of
the frontier. Even if account is taken of what is said in the Memorial, little further
enlightenment is offered in many cases as to the precise geographical situation of places
where incursions or incidents are alleged to have occurred. Without such information in the
Application it is consequently not possible for Nigeria effectively to consider the issues which
might arise in this context, and in consequence whether, and if so to what extent, they
engaged Nigeria's international responsibility. It is similarly not possible in those
circumstances for the Court to carry out a judicial examination of, and make a judicial
determination on, the issues of State responsibility in so far as they are contingent upon the
precise whereabouts of the locus delicti.
6.17 There is an additional factor to be taken into account in this connection in considering
what is said in the Application, and which makes clarity essential in relation to geographical
locations where events are said to have occurred. It is that in areas such as those along the
frontiers of Nigeria and Cameroon, place-names are not always fixed. They frequently vary
over time, or differ as between the linguistic traditions in Nigeria and Cameroon, or as
between the different tribal languages or dialects. To give examples, in paragraph 9 of the
Application Cameroon refers to alleged aggression by Nigeria at Jabane - but to Nigeria this
place is known as Abana; in paragraph 5 of the Amendment reference is made to Nigerian
occupation of inter alia Daba and Karakaya - but to Nigeria these places are knownrespectively as Karakaya II and Karakaya I; and, as a last example, in paragraph 6 of the
Amendment reference is made to Nigerian presence in Akwaya - but to Nigeria this is known
as Mbenmong.
6.18 The inadequacy of the Application in these respects is of two-fold significance. First, it
makes it impossible for Nigeria to respond effectively to the allegations which have been
presented; second, it makes it impossible for the Court to make a fair and effective
determination of the matters raised by Cameroon.
D: Submissions
6.19 For the above reasons Nigeria submits:
(1) that the Application (and so far as relevant, Amendment and Memorial)
filed by Cameroon does not meet the required standard of adequacy as to the
facts on which it is based, including the dates, circumstances and precise
locations of the alleged incursions and incidents by Nigerian State organs;
(2) that those deficiencies make it impossible
(a) for Nigeria to have the knowledge to which it is entitled of
the circumstances which are said by Cameroon to result in
Nigeria's international responsibility and consequential
obligation to make reparation; and
(b) for the Court to carry out a fair and effective judicial
examination of, or make a judicial determination on, the issues
of State responsibility and reparation raised by Cameroon; and
(3) that accordingly all the issues of State responsibility and reparation raised by
Cameroon in this context should be declared inadmissible.
__________
CHAPTER 7
There is no dispute susceptible of adjudication as to the
maritime boundary
A: Preliminary7.1 The Seventh and Eighth Preliminary Objections concern not the land but the maritime
boundary. They are related to each other but are made independently of the objections
concerning the various sectors of the land boundary, as well as the boundary in Lake Chad.
7.2 Nigeria asks the Court to hold that there is no legal dispute concerning delimitation of the
maritime boundary between the two Parties which is at the present time appropriate for
resolution by the Court. This is so for two reasons:
(1) In the first place, no determination of a maritime boundary is possible prior
to the determination of title in respect of the Bakassi Peninsula.
(2) Secondly, at the juncture when there is a determination of the question of
title over the Bakassi Peninsula, the issues of maritime delimitation will not be
admissible in the absence of sufficient action by the Parties, on a footing of
equality, to effect a delimitation "by agreement on the basis of international
law".
These points will be dealt with in turn.
B: No determination of a maritime boundary is possible prior to the determination of
title in respect of the Bakassi Peninsula.
7.3 It is trite law that the determination of maritime boundaries is dependent on the pre-
existing determination of land boundaries. Maritime territory is dependent upon and
appurtenant to land territory.3 Thus Article 2 of the United Nations Convention on the Law of
the Sea of 1982 defines the legal status of the territorial sea in terms of an extension of
sovereignty of the coastal state "beyond its land territory... to an adjacent belt of sea"; the
same language is used in Article 1 of the 1958 Geneva Convention on the Territorial Sea and
the Contiguous Zone. The normal baseline for measuring the territorial sea, and other
maritime zones beyond, is the "coast", that is, the area of land bordering the sea under the
sovereignty of the coastal state (1958 Geneva Convention on the Territorial Sea and the
Contiguous Zone, Article 3; 1982 Convention, Article 5).
7.4 In the present case, however, the location of the "coast" of the respective States is in
question, for reasons already described in Chapter 5. That issue must first be settled before it
will be possible to begin to consider issues of maritime delimitation, whether of the territorial
sea or other maritime zones. The provisions of the 1958 and 1982 Conventions dealing with
delimitation of the territorial sea between opposite or adjacent coasts (1958 Territorial Sea
Convention, Article 12; 1982Convention, Article 15) also presuppose that each of the points
on the baselines has been determined.
7.5 The difficulties of determining the issue are exacerbated in that Cameroon presents a
single argument as to the location of the maritime boundary up to "Point G", relying upon the
validity and legal effect of the Maroua Declaration (see Memorial, paragraphs 5.09, 5.52 -
5.60 and NPO 25). If the Court accepts Nigeria's arguments, it will thereby have undermined
the whole assumption of the Cameroon's argument. But the Court cannot, consistently with its
judicial character, proceed to consider the merits of a dispute on the premise that the
arguments of one party are prima facie correct. At least, it would be more consistent withjudicial method and with the separate and consequential status of maritime boundary
determination for the Court to postpone consideration of the maritime boundary as such.
C: There has been no attempt by Cameroon to seek a delimitation "by agreement on the
basis of international law", in accordance with the principles and provisions of the
United Nations Convention on the Law of the Sea, 1982.
7.6 The arguments made in the preceding sub-section relate to the whole maritime boundary
in issue in the present case. But even assuming, for the sake of argument, that the Court were
to uphold the contentions of Cameroon with respect to the Bakassi Peninsula and the Maroua
Declaration, the Court would have no jurisdiction over the question of maritime delimitation
beyond "Point G", or that question would be inadmissible, for the reasons explained below.
D: Cameroon's presentation of the issues
7.7 The Application refers to "several attempts" to delimit the maritime boundary, but without
any specification. It asserts merely that:
"Afin d'éviter de nouveaux incidents entre les deux pays, la République du
Cameroun prie la Cour de bien vouloir déterminer le tracé de la frontière
maritime entre les deux Etats au-delà de celui qui avait été fixé en 1975."
(Application, paragraph 3)
In relevant part, the "decision requested" in the Application is as follows:
"Afin d'éviter la survenance de tout différend entre les deux Etats relativement
à leur frontière maritime, la République du Cameroun prie la Cour de procéder
au prolongement du tracé de sa frontière maritime avec la Républic Fédérale
du Nigéria jusqu'à la limite des zones maritimes que le droit international place
sous leur juridiction respective." (Application, paragraph 20 (f))
7.8 The Application is wholly lacking in specificity. It identifies neither the "attempts" at
further delimitation nor the "incidents" which should be prevented from recurring. It does not
even specify which "maritime zones" in particular the Court should delimit, although it is
plain from paragraph 20 (f) that it intends that the Court should draw these lines up to the
limit of the respective zones, i.e. to the tripoint or tripoints (or possibly quadripoints) with the
other States evidently concerned in the delimitation of the area (Equatorial Guinea, São Tomé
e Principe, and perhaps Gabon).
7.9 The one thing which paragraph 20(f) of the Application clearly infers (by the words "Afin
d'éviter la survenance de tout différend", translated accurately by the Registry as "In order to
prevent any dispute arising") is that such a dispute has not already arisen. And this is in fact
the case.
7.10 The Amendment provides no further information on this issue.7.11 The Memorial is no more specific, so far as the delimitation of areas beyond "Point G" is
concerned. It states (paragraph 5.02) that:
"Au-delà [du Point G], les Parties n'ont pu se mettre d'accord sur la délimitation des zones
maritimes sur lesquelles elles exercent leur juridiction respective."
7.12 The Memorial traces in some detail the discussions and disagreements of the parties in
the period up to 1975 on the territorial sea boundary (see Memorial, paragraphs 5.06 - 5.66).
In that context it refers to and annexes a few relevant inter-State documents, and rather more
internal Cameroonian documents. Thereafter it turns to the issue of maritime delimitation
beyond "Point G". The relevant Section (Memorial, Section (3), paragraphs 5.63 - 5.66)
mentions no single diplomatic document between the parties relating to this sector. Not a
single document since 1975 is annexed. That Section reads, in its entirety, as follows:
"SECTION 3. AU-DELA DU POINT G
5.63 A partir du point G en direction du large, toute délimitation entre le
Cameroun et le Nigeria doit prendre en compte une série de facteurs beaucoup
plus nombreux que ceux nécessaires à la délimitation des frontières des eaux
territoriales entre les deux Etats. Ces facteurs incluent une grande variété
d'éléments géographiques et juridiques.
5.64 La situation géographique générale est illustrée par le croquis représenté
page suivante.
5.65 Les éléments géographiques à prendre en compte sont au nombre de sept,
de caractère particulier, trois étant de nature plus générale. Ils sont décrits ci-
dessous dans les pars. 5.97 - 5.99 de ce Mémoire.
5.66 A l'exception de la délimitation décidée par la Déclaration de Maroua du
1er juin 1975 qui concerne essentiellement les eaux territoriales, il n'y a pas eu
d'autre délimitation entre le Cameroun et le Nigeria. L'affaire est maintenant
portée devant la Cour par une requête présentée en vue de délimitation du
plateau continental et de la zone économique exclusive entre ces deux Etats.
Ceci est l'occasion d'aboutir à une telle délimitation conformément aux
principes de l'equité, une délimitation qui doit en toutes circonstances
constituer `une solution équitable' au sens des articles 74 et 83 de la
Convention des Nations Unies sur le droit de la mer de 1982 et conformément
à la jurisprudence de la Cour. C'est sur cette recherche d'une délimitation
équitable que se fonde l'argumentation du Cameroun relative à la frontière
maritime au-delà du point G." [Memorial, paragraphs 5.63 - 5.66 (emphasis
added, footnotes omitted).]
7.13 The words emphasized in the preceding paragraph are of importance. At the time of the
Maroua Declaration, the whole area it purported to cover was claimed as territorial sea by
both parties. Cameroon notes that the subsequent ratification of the 1982 Convention prevents
the parties from claiming more than a 12 mile territorial sea (Memorial, paragraph 5.03). But
the rules for delimitation of the territorial sea differ from the rules for delimitation of theexclusive economic zone and continental shelf, both under the 1958 Geneva Conventions and
under the 1982 Convention. Cameroon wholly fails to discuss what the effect of all this may
be on the Maroua Declaration, even on its own assumption that that Declaration is otherwise
legally binding. It is yet a further issue which the parties would need to consider in the context
of negotiations for the delimitation of their maritime zones beyond 12 miles.
7.14 Rather than dealing with these difficult and unexplored issues, the Memorial makes a
cursory reference to the identical provisions of Article 74 (2) and 83 (2) of the 1982
Convention, and then deals with the obligation to negotiate in the following way:
"Comme cela est précisé ci-dessus dans la section (2) du présent Mémoire... les
Parties au présent différend ont tenu quantité de réunions et de négociations en
vue de rechercher une solution à leur problèmes de frontières maritimes. Ces
réunions ont eu lieu entre 1971 et 1975 mais n'ont pas permis de parvenir à un
accord sur les frontières maritimes au delà des limites des eaux territoriales."
[Memorial, paragraph 5.71.].
But as already noted, the meetings referred to dealt only with the issue of maritime
delimitation to the coastwards of Point G or thereabouts, and they are treated in the Memorial
precisely on this basis. To use the words of paragraph 5.66 of the Memorial, those meetings
"essentially concern[ed] the territorial waters". Despite the aspirations entertained that the
Joint Boundary Commission would deal comprehensively with the issues of maritime
delimitation, it never even began consideration of them.
7.15 Nigeria for its part has not yet had the opportunity to consider, in the context of
diplomatic negotiations, any proposal for the delimitation of the respective maritime zones of
the Parties beyond "Point G". It learned of the Cameroon's actual position as to delimitation
beyond "Point G" only when it received the Memorial.
7.16 In these proceedings Nigeria sees no need to take, and does not take, any position with
respect to the substantive Cameroon maritime claims at present, beyond reserving its rights.
Nigeria cannot be required to take a position as to what the legal position would be in respect
of maritime delimitation on the hypothesis that its principal legal arguments are without
foundation.
7.17 Nor can Cameroon, by making what appear to be extreme maritime claims, dispense
with the requirement of prior negotiation. Otherwise the obligation to negotiate in good faith
would be entirely frustrated, and would even become, de facto, an inducement to the making
of extreme claims.
E: The Basic Legal Principle
7.18 The key role that the parties themselves play in continental shelf delimitation goes back
to the origins of the continental shelf doctrine in the Truman Proclamation of 28 September
1945. This stated, inter alia, that:
"In cases where the continental shelf extends to the shores of another State, or
is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable
principles." 4
This Court has consistently taken the same approach. It has refused to treat the "rules" for
delimitation of the continental shelf and exclusive economic zone as in any sense imperative
or self-executing, as applying by operation of law to effect a delimitation of the shelf ipso
facto and without any attempt at agreement by the parties.5 On the contrary the 1958
Convention "gave priority to delimitation by agreement".6 The obligation to negotiate in good
faith with a view to reaching agreement on delimitation is the "primary" obligation.7
7.19 The priority given to agreement does not mean that delimitation by means other than
agreement is impossible, in cases where attempts to reach agreement have failed. Nor do the
negotiations have to have proved "finally abortive".8 But what is clear under general
international law, as affirmed by the Court from 1969 onwards, is that the parties must have
been given an opportunity to negotiate, to develop their positions, to see whether some
resolution of the situation is not possible.9 As the Court noted in 1969, there are...
"certain basic legal notions which... have from the beginning reflected the
opinio juris in the matter of delimitation; those principles being that
delimitation must be the object of agreement between the States concerned,
and that such agreement must be arrived at in accordance with equitable
principles..." [ibid. at p.47 (paragraph 85)].
7.20 Foremost among the "basic legal notions" is thus placed the principle that the parties
must seek to reach agreement. The Court formulated it as follows:
"(a) the parties are under an obligation to enter into negotiations with a view to
arriving at an agreement, and not merely to go through a formal process of
negotiation as a sort of prior condition for the automatic application of a
certain method of delimitation in the absence of agreement; they are under an
obligation so to conduct themselves that the negotiations are meaningful,
which will not be the case where either of them insists upon its own position
without contemplating any modification of it;". [ibid. at p.47 (paragraph 85),
emphasis added.]
7.21 Later cases have adopted a similar approach. For example in the Gulf of Maine case, the
Chamber expressed the first fundamental norm of general international law in relation to the
delimitation of the continental shelf in the following terms:
"(1) No maritime delimitation between States with opposite or adjacent coasts
may be effected unilaterally by one of those States. Such 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 agreement cannot be achieved, delimitation
should be effected by recourse to a third party possessing the necessary
competence."10
7.22 In the Case concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya), the
parties began on common ground by relying on the passage of the Court's 1969 judgment
(referred to in paragraph 7.17 above), as the Court noted.11 But their views as to theapplication of the Court's criteria differed widely: the Court having settled the principles to be
applied to the area in dispute, the parties reserved to themselves the task of reaching
agreement on the actual line.
7.23 In the Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), the Court
reaffirmed the primacy of the agreement of the parties, pointing out that:
"The normative character of equitable principles applied as part of general
international law is important because these principles govern not only
delimitation by adjudication or arbitration, but also, and indeed primarily, the
duty of parties to seek first a delimitation by agreement, which is also to seek
an equitable result." [ICJ Reports 1985 p. 13 at p. 39 (paragraph 46), emphasis
added].
7.24 In the Case Concerning Maritime Delimitation in the Area between Greenland and Jan
Mayen (Denmark v Norway), the Court was asked actually to delimit the area in question, in a
case governed as to the continental shelf by the 1958 Convention. The parties had previously
sought and failed to reach agreement on the issue. There was no question of one of the parties
being brought before the Court without notice and without an opportunity to resolve the
dispute by agreement.12
7.25 In this context it should be noted that in none of the reported decisions involving
delimitation of continental shelf or EEZ has one party invoked judicial settlement without any
attempt whatever at negotiations. On the contrary, in most cases there had been extensive
negotiations, and the legal position of each party was well known to the other.13
7.26 In none of the above cases was the 1982 United Nations Law of the Sea Convention
applicable as such between the parties. But the position under the 1982 Convention is the
same as that under general international law. Rather than adopting the formula of Article 6 of
the 1958 Geneva Convention on the Continental Shelf, the 1982 Convention makes a renvoi
to the rules of general international law, as developed by the Court. Article 83 provides as
follows:
"1. The delimitation of the continental shelf between States with opposite or
adjacent coasts shall be effected by agreement on the basis of international law,
as referred to in Article 38 of the Statute of the International Court of Justice,
in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the
States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a
spirit of understanding and co-operation, shall make every effort to enter into
provisional arrangements of a practical nature and, during this transitional
period, not to jeopardize or hamper the reaching of the final agreement. Such
arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned,
questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement." [emphasis
added]
Article 74, dealing with delimitation of the EEZ between adjacent or opposite States, is in the
same terms.
7.27 It should be stressed that each of the sub-clauses of Articles 74 and 83 refers to the need
for agreement or an attempt to reach agreement between the parties. In addition, sub-clause 2
expressly allows reference to judicial settlement of disputes only if no agreement can be
reached "within a reasonable period of time". Unilateral reference to a court, under a dispute
settlement arrangement never notified to the other State concerned, in relation to a claim
never communicated to that State let alone made the subject of negotiations, would be a plain
breach of that sub-clause.
7.28 It is true that under Part XV of the 1982 Convention, which deals with settlement of
disputes, the provisions for compulsory settlement in Part 2 do not apply if the parties have
agreed to settle their disputes by some other means: see Part XV, Section 1, especially
Articles 280, 282. This would presumably include pre-existing agreements to refer disputes to
this Court under and in accordance with Article 36 of the Statute. It is argued in Chapter 1
above that there was no such agreement in the present case. But in any event, the rules of
international law which the Court will apply are to be found in Articles 74 and 83 of the
Convention, and include an explicit and substantive prior requirement of good faith
negotiations on the issue for a "reasonable period of time". The same requirement exists, as
has been shown, under general international law.
7.29 This is not merely good law but good sense. The delimitation of maritime zones is a
matter of primary concern to the States affected. It is an issue of neighbourly relations. The
considerations which have to be taken into account are not and cannot be limited; they relate
not merely to the location of a line but to the continuing relationship of the parties in the area
of the line, the management of resources, maritime transit rights, and so on. Any less
appropriate subject for "trial by ambush", without any prior consideration of the possibilities
for a settlement acceptable to the parties in the longer term, it would be hard to imagine. And
this argument is reinforced by the fact that the area in question implicates the maritime zones
of not two but at least four States.
F: The principle applied
7.30 If the parties are under an obligation in the first place to negotiate with a view to
reaching agreement on delimitation, then neither can deprive the other of the opportunity to
negotiate. A party which, far from seeking to reach agreement, instigates without notice or
warning what are evidently "hostile" proceedings before an international tribunal breaches the
obligation which the Court articulated in its 1969 judgment and has since consistently
affirmed. Such action deprives the other State of its right and opportunity to seek to resolve
the issue through negotiations. That is the case with Cameroon in the present proceedings.
7.31 Under the circumstances, therefore, in Nigeria's view, the Court should hold that
Cameroon has failed entirely to negotiate in good faith with a view to reaching agreement on
the respective maritime zones of the parties beyond Point G. Under these circumstances, anessential precondition to reference to the Court, under Articles 74 and 83 of the 1982
Convention as well as under general international law, has not been complied with.
7.32 For these reasons, the Court lacks jurisdiction in relation to the delimitation of the
maritime zones of the parties beyond "Point G", or alternatively the claim of Cameroons is to
that extent inadmissible for failure to comply with an essential precondition.
G: Submission
7.33 There is no legal dispute concerning delimitation of the maritime boundary between the
two Parties which is at the present time appropriate for resolution by the Court, for the
following reasons:
(1) no determination of a maritime boundary is possible prior to the
determination of title in respect of the Bakassi Peninsula;
(2) at the juncture where there is a determination of the question of title over
the Bakassi Peninsula, the issues of maritime delimitation will not be
admissible in the absence of sufficient action by the Parties, on a footing of
equality, to effect a delimitation "by agreement on the basis of international
law".
__________
CHAPTER 8
Maritime delimitation necessarily involves the rights of third States
A: Objection
8.1. In the context of, and supplemental to, the Seventh Preliminary Objection, Nigeria
contends that the question of maritime delimitation necessarily involves the rights and
interests of third States and is to that extent inadmissible.
8.2. The position of the various States in and abutting the Gulf of Guinea appears sufficiently
from the Map at the end of this Chapter. The Gulf is distinctly concave, and no fewer than
five States are involved (Nigeria, Cameroon, Equatorial Guinea, Gabon, São Tomé e
Principe). There has been, as far as is known to Nigeria, no agreed continental shelf or
exclusive economic zone delimitation between any two of the States concerned (and
Cameroon does not suggest otherwise). It is obvious from a preliminary inspection that the
delimitation of the maritime zones appertaining to any two of those States will closely affect
the others.8.3. The decision of the Chamber in the Case concerning the Frontier Dispute (Burkina Faso
v Mali) ICJ Reports 1986 p. 554 has already been analysed (see above, paragraphs 4.02 -
4.05). It will be recalled that the Chamber declined to limit its competence "simply because
the end-point of the frontier lies on the frontier of a third State not a party to these
proceedings" (ibid. at p. 577 (paragraph 46)). But it did so by explicitly distinguishing the
position of continental shelf delimitation. As it held:
"...the process by which a court determines the line of a land boundary between
two States can be clearly distinguished from the process by which it identifies
the principles and rules applicable to the delimitation of the continental shelf...
[I]n continental shelf delimitations, an agreement between the parties which is
perfectly valid and binding on the treaty level may, when the relations between
the parties and a third State are taken into consideration, prove to be contrary
to the rules of international law governing the continental shelf (see North Sea
Continental Shelf, I.C.J. Reports 1969, p. 20, paragraph. 14; pp. 27-28,
paragraphs. 35-36). It follows that a court dealing with a request for the
delimitation of a continental shelf must decline, 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." [ibid.
at p. 578 (paragraph 47)].
8.4. As is well known, the Full Court in the Libya/Malta Case expressly did so limit the area
within which it was competent to act, having regard to the known claims of a third State,
Italy. See Libya/Malta Case (Italian Application to Intervene) ICJ Reports 1984 p. 3 at pp.
26-7 (paragraph 43); Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta)
ICJ Reports 1985 p. 13 at pp. 27-8 (paragraphs 22-23).
8.5. Where a Court is merely laying down the principles applicable to the delimitation of a
continental shelf in a given context, without actually drawing any particular line, the potential
effects on third parties may be able to be reduced, or even avoided. This was the position with
Malta in the Tunisia/Libya Case ICJ Reports1981 p. 3. The position is quite different when
the Court is actually called on to draw a line or lines, and when it is asked to do so, as here, to
the full extent of the maritime zones (themselves unspecified) claimed by the Applicant State.
It is true that a third State can seek some solace in Article 59 of the Statute, and that it will not
be formally bound by the decision. But although third States can always rely on Article 59,
yet in specific situations decisions of the Court may have clear and direct legal and practical
effects on third States - as the Court acknowledged in the Case Concerning East Timor, ICJ
Reports 1995 p. 90.
8.6. Moreover it is clear that this Court did not regard the protection of Article 59 as sufficient
in the case of Italy, when considering the delimitation of the shelf between Libya and Malta.
On the contrary, it was punctilious in leaving to one side areas which might be in issue as
between Italy and one or other of the States parties: see Libya/Malta Case (Italian Application
to Intervene) ICJ Reports 1984 p.3 at pp.26-7 (paragraph 43); Case Concerning the
Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports 1985 p. 13 at pp. 27-8
(paragraphs 22-23). It was more able to do so in that Italy, in its application to intervene, had
given the Court full, current and authoritative information as to the extent of its claims and
interests. As the Court itself hinted, Italy thereby achieved as much by seeking to intervene as
it could have done had its request for intervention actually been granted: Case Concerning theContinental Shelf (Libyan Arab Jamahiriya/Malta) ICJ Reports 1985 p. 13 at p. 27 (paragraph
21).
8.7. A further element, also noted by the Court, was that Malta and Libya in that case had
seen and opposed Italy's request to intervene. They could fairly be said to have taken the
jurisdictional consequences of their opposition. The limitation of the Court's competence with
respect to the case was attributable, in part at least, to an informed and deliberate decision
taken by them: Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) ICJ
Reports 1985 p. 13 at p. 28 (paragraph 23).
8.8. The position in the present case could hardly be more different. It is even more obvious
than in Libya/Malta that the interests of other States are affected. They are affected not
peripherally or marginally but as to central areas of the Gulf. Moreover, looking at the Gulf of
Guinea as a whole there is not one but three such States. The Court has little or no information
as to the claims or potential claims made by the other Gulf of Guinea States. Nor is Nigeria in
a position at present to assist in that regard - even if it were appropriate for it to do so - given
the absence of multilateral or bilateral agreements with the other Gulf of Guinea States as to
their respective maritime entitlements.
8.9. Indeed Cameroon has expressly recognised that this is the position. At the Third Session
of the Nigeria-Cameroon Joint Meeting of Experts on Boundary Matters, held in Yaoundé
from 11-13 August 1993, the parties agreed that it was necessary to determine the tripoint
between Nigeria, Cameroon and Equatorial Guinea, but they disagreed over whether it was
desirable to discuss that issue in the absence of Equatorial Guinea. It was further agreed that a
tripartite meeting be convened to examine the issue of the tripoint. See Minutes of the Third
Session of the Nigeria-Cameroon Joint Meeting of Experts on Boundary Matters, Yaoundé,
11-13 August 1993, p.6 (NPO 55). In the Joint Communiqué issued after the meeting, the
relevant paragraph reads:
"After underscoring that the determination of the triple point is essential to the
delimitation of the maritime borders between Nigeria, Equatorial Guinea and
Cameroon, the two Parties agreed that a tri-partite meeting should be convened
to examine the issue of the determination of the triple point and the Gulf of
Guinea Commission project." Third Session of the Nigeria-Cameroon Joint
Meeting of Experts on Boundary Matters, Yaoundé, 11-13 August 1993, Joint
Communiqué (NPO 55, p.3) [Emphasis added]
But in fact no such meeting has been held. Instead, Cameroon has called on the Court,
unilaterally and without prior notice to Nigeria, to effect a purely bilateral delimitation with
Nigeria.
8.10. At the same meeting, Nigeria pressed the idea of a Gulf of Guinea Commission, which
"would ultimately facilitate the peaceful resolution of their maritime border problems": this
was a reference to maritime border problems affecting not only Cameroon but the other Gulf
of Guinea States.1 In fact the proposed Gulf of Guinea Commission has not materialized,
despite Nigeria's urgings, and no multipartite discussions have taken place in relation to
maritime delimitation in the Gulf of Guinea.2B: Conclusion
8.11. The resulting situation can be characterized in a number of ways.
8.12. At one level, the situation highlights the difficulties presented by Cameroon in bringing
the issue of maritime delimitation beyond "Point G" to the Court without any notice to or
negotiation with Nigeria. Delimitation by agreement in the Gulf of Guinea would necessarily
have involved the other States. It is for reasons such as these that the relevant substantive
rules of international law (as reflected in Articles 74 and 83 of the 1982 Convention) require a
prior attempt to reach agreement.
8.13. At this first level, the impact on third States in the Gulf highlights and reinforces the
arguments for inadmissibility made in Chapter 7.
8.14. But there is more. The position in the Gulf of Guinea is such that a delimitation much
beyond "Point G" would require the Court, in its own words...
"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." [Case
concerning the Frontier Dispute (Burkina Faso v Mali) ICJ Reports 1986 p.
554 at p. 578 (paragraph 47)]
Moreover the Court is in fact required to do so without any information as to what the
equitable considerations might mean for the other States concerned. In this regard it may be
noted that the situation in the Gulf of Guinea is not unlike that which faced the Court in 1969,
i.e. of a series of States forming part of a concave coast, with consequential effects for each of
them. In such a case, as the Court held in 1969, there is not even a presumption that
equidistance will provide the appropriate, equitable solution. The case of the Gulf of Guinea
is complicated further (a) by the presence of island dependencies, of offshore islands and of
an island State; and (b) by the absence of information as to the positions taken by affected
third States.
8.15. At this second level, the Court simply does not have the possibility of deciding on a
complex interlinked series of equities affecting States not parties to the proceedings.
8.16. At a third level, it is clear from the measures sought by Cameroon (actual delimitation
by the Court to the full extent of its maritime zones) that the Court will be required not merely
to form a view on the equities of the claims or potential claims of third States but in practical
effect - notwithstanding Article 59 of the Statute - to decide on the location of tripoints and on
the actual extent of third State rights. In the context of maritime delimitation, and in respect of
a request maintained by a State in breach of Articles 74 and 83 of the Statute, this is
something the Court cannot and should not do. In this respect Nigeria affirms and does not
need to repeat the points made in respect of its Fourth Preliminary Objection (see above,
paragraphs 4.2 to 4.10).
C: Submission8.17. The question of maritime delimitation necessarily involves the rights and interests of
third States and is inadmissible.
__________
__________
CONCLUDING SUBMISSIONS
For the reasons advanced, the Federal Republic of Nigeria requests the Court to adjudge and
declare that:
it lacks jurisdiction over the claims brought against the Federal Republic of
Nigeria by the Republic of Cameroon
and/or the claims brought against the Federal Republic of Nigeria by the Republic of
Cameroon are inadmissible to the extent specified in these Preliminary
Objections.
December 1995
Chief Michael AGBAMUCHE SAN
Hon. Attorney-General of the
Federation and Minister of Justice
Agent of the Federal
Republic of Nigeria
__________
SCHEDULE ONE
Schedule of Annexes which are incorrectly
referenced in Volume I of the Cameroon Memorial
__________
CAMEROON/NIGERIA BOUNDARY DISPUTE
SCHEDULE 1
SCHEDULE OF ANNEXES WHICH ARE INCORRECTLY REFERENCED IN
VOLUME 1 OF THE CAMEROON MEMORIAL
Annexure Vol. Paragraph Comments
No. No./Page No./Page No.
No. of in Memorial
Annexure
MC344 7/2819 1.29/18 The quote appearing at paragraph 1.29 of the
Memorial does not appear at MC344. MC344 is a letter dated 4 March 1994 addressed to the
President of the Security Council by the Nigerian
Interim Charge d'Affaires.
MC366 7/2931 1.33/21 The document referred to at paragraph 1.33 of the
Memorial and described as MC366 is actually
annexed at MC367.
MC367 7/2935 1.33/20 The document referred to at paragraph 1.33 and
described as MC367 is actually annexed at
MC366.
MC14 2/89 2.34/57 The reference in paragraph 2.34 of the Memorial
is to Article II of the Anglo-German Agreement
dated 15 November 1893. The correct reference is
Article III.
MC19 2/113 2.51/69 MC19 should be an English translation of a note
dated 13th November 1902 from Baron Von
Richthofen to the Embassy of Great Britain in
Berlin. It is in fact a letter dated 27th May 1895
from Sir Claude MacDonald to the Earl of
Kimberley. What should be MC19 actually
appears at MC26.
MC28 2/159 2.51/69 The document annexed should be the note dated
13th November 1902 from Baron Von Richthofen
to Great Britain (MC 26). It is in fact a Treaty
dated 12th December 1902 establishing a Joint
Boundary Commission for measuring and
demarcating the boundary from Yola to Lake
Chad.
MC84 3/611 2.77/79 The first two sentences of the extract as it appears
at paragraph 2.77 of the Memorial are missing
from MC84.
MC245 5/2007 2.84/81 This should be an extract from International
Boundary Study (IBS) No. 92 (Revised) of 21st
November 1974. It is in fact a summary of the
proceedings of the joint Nigeria/Cameroon
Frontier Commission from 26th March to 4th
April 1971.
MC286 6/2399 2.180/119 The Memorial at paragraph 2.182 gives the
latitudinal geographical value as - latitude: 12_
32'72" 4N. MC286 gives it as - latitude: 12_
32'17" 4N.
MC284 6/2371 2.187/120 The Memorial at paragraph 2.187 gives 25th May
1988 as the date when the contract was approved.
MC284 gives it as 26th May 1988.
MC242 5/1975 2.219/129 Reference is made at paragraph 2.219 of the
Memorial to British Admiralty Map No. 3433. No
map is appended to MC 242.
MC110 3/815 3.16/150 There is a typographical error in the Memorial. At paragraph 3.16 the reference should be to MC110
and not MC112.
"C2" 2/5 3.34/156 The Memorial at paragraph 3.34 refers to the
Milner-Simon Agreement. The document annexed
at MC2 is an Agreement dated 1885 between
Germany and Great Britain. The Milner-Simon
Agreement is annexed at MC107.
MC119 3/915 3.35/157 The Memorial at paragraph 3.35 refers to,
"correspondence during May/June 1961". MC119
is actually a letter dated 29th May 1921 from the
British Ambassador in Paris to the French
Minister of Foreign Affairs.
MC233 5/1915 3.42/159 The document annexed at MC233 does not
support the assertion at paragraph 3.42.
MC70 3/531 3.48/163 The Memorial at paragraph 3.48 refers to a
Meeting in Lagos from 15th-23rd October 1970.
MC70 is actually a letter dated 28th May 1912
from the German Ambassador, Count Metternich
to the British Government.
MC289 6/2415 3.58/166 The Memorial at paragraph 3.58 recites a passage
in italics. MC289 does not contain this passage.
MC116 3/879 3.127/191 MC116 should be League of Nations Assembly
Document 161, of 1920. The same document also
appears as MC179. MC116, therefore, appears to
be missing.
MC135 4/ 3.140/195 MC135 is missing.
MC146 4/1123 3.142/196 The reference appearing at paragraph 3.142 is not
from MC146. It can be found at MC147.
MC147 4/1133 3.144/196 The Memorial at paragraph 3.144 refers to "...
certain questions that the British Administration
had wished to raise in 1919 ...". MC147 does not
appear to relate to this.
MC166 4/12653.152/e1 Ttreetar ing at paragraph 3.152 can be
found at MC 167 and not MC166.
MC203 5/1611 3.170/207 The document annexed should be a Declaration
drawn up by the mandatory powers and approved
by the sub-committee. MC203 is in fact the
Repertory of Practice of UN Organs.
MC203 5/16113.172/e2 Ttreetar ing at paragraph 3.172 can be
found at MC182 and not MC203.
MC203 5/16113.175/e2 Ttreetar ing at paragraph 3.175 can be
found at MC182 and not MC203.
MC200 5/216 3.189 This appears to be the correct annexure, although
paragraph 3.189 of the Memorial gives no
indication of where in the document annexed the
extract is from. MC186 4/1419 3.189/216 The Memorial at paragraph 3.189 refers to page 3
of the Report of 1948, HMSO, Colonial No 244.
MC186 is page 1 of this report and not page 3.
Page 3 can be found at MC185.
MC200 5/1533 3.205/225 MC200 does not contain the exact words which
are quoted at paragraph 3.205 of the Memorial.
The document relates the gist of the extract only.
MC198 5/1503 3.205/225 The 2nd reference to MC198 is a quote from the
Official documents of the Trusteeship Council,
1952. The quote is from MC199 and not MC198.
MC157 4/1181 3.208/229 MC157 does contain an exchange of notes of 9th
January 1931, although the extract at paragraph
3.208 of the Memorial cannot be found.
MC196 4/1465 3.211/231 MC196 should be the HMSO Report for the year
1949. It is actually the Report of the UN Visiting
Mission to Trust Territories in West Africa during
1950.
MC208 5/1667 3.220/235 MC208 is a letter dated 12th February 1958 from
Mr. C G Eastwood to Sir John Macpherson. The
Memorial at paragraph 3.220 refers to a meeting
of 17th February 1959. This can be found at
MC211.
MC255 6/2123 3.237/243 MC255 should be an UN Report re plebiscites
dated 3rd April 1961. It is in fact a roll of taxes
dated 8th July 1980. The correct annexure can be
found at MC224.
MC223 5/1835 3.237/243 The Southern Cameroons Plebiscite Order of
1960 can be found at MC221 and not MC223.
MC221 5/1821 3.241/245 The Southern Cameroons (Constitution) Order in
Council of 1960 can be found at MC223 and not
MC221. MC221 is the Southern Cameroon's
Plebiscite Order in Council 1960.
MC202 5/1589 3.242/245 MC202 is the Nigeria (Constitution) Order in
Council 1951 and not the (Constitution) Order in
Council of 1954 referred to in the Memorial.
MC227 5/1871 3.258/251 MC227 does not include GAOR, 15th Plenary
Session, page 466 as stated in Memorial. M.C.
227 is actually General Assembly Resolution
1608 (XV)
MC355/356 7/2877 and 4.15/335-336 MC355/356 both contain the same document:
Note No. 73/114/Vol. VI/94 dated 14 April 1994.
2883 MC355 alone also contains a note from the
Foreign Minister of Cameroon dated 11 April
1994 (No. 77/CF/DIPL/DI/SDAF/AO).
MC104 3/759 4.45/342 No Memorandum dated 11 January 1917, appears
at MC104. MC104 contains a Memorandum dated
20 June 1917. MC151 4/1149 4.70/352-353 MC151 is dated 13 March 1928, not 13 October
1925 as stated.
MC155 4/1165 4.79/355 The note of 10 September 1930 can be found on
the first page of MC155.
MC172 4/1309 4.80/355 MC172 does not contain any reference to the
replacement of the French President of the
Commission with George Verges.
MC38 2/243 4.169/404 The protocol contained in MC38 does not contain
the information in paragraph 4.69.
MC314, 324, 7/2603, 2679 4.183/410 MC 314, 324 and 327 only contain Decrees:-
327 91/113, 92/284, 93/398 (28 April 1993),
and 2721 93/398/PM/CAB, 93/399/CAB/PM, 93/399 (29
April 1993 and 93/730/PM. There are a large
number of decrees and orders referred to in
paragraph 4.183 which are not contained in
Annexes 314, 324 and 327.
MC263 6/2179 4.185/411 MC263 is Decree No 81/510 of 4 December 1981
creating Districts. It does not appear to relate to
Police Services as stated in paragraph 4.185.
MC379 7/2989 4.189/412 Not all of the schools listed in paragraph 4.189
appear in the list provided at MC379.
MC126 3/969 4.199/417 MC126 is the Report on the British Sphere of the
Cameroons and not the Report of the first
monitoring missions of the UN in the 1950
document T/798 (p.10).
MC1 2/1 4.228/427 MC1 is dated 15 October 1884. The Memorial
refers to protectorate treaties between Germany
and the indigenous Chiefs in 1884 - 1885 but
these are not annexed.
MC91 3/657 4.240/433 MC91 is the 24 Ed of the German Colonial
Gazette and not a memorandum dated 19 April
1913 as is referred to in paragraph 4.240.
MC383 7/3013 4.269/442 The eight maps are not specifically named nor are
corresponding numbers (Memorial maps number)
provided by which these maps can be identified.
MC9 2/55 4.278/446 MC9 is (Inclosure in No. 127) a copy of a letter
from Baron von Soden to Consul Hewett and not
a copy of a letter from the Marquis of Salisbury to
Sir Eric Malet dated 2 November 1888.
MC20 2/117 4.279/447 MC20 is the Joint Report by the Survey
Commissioners on the proposed Anglo-German
Boundary between the Niger Coast Protectorate
and the Cameroons.
MC214 5/1709 4.281/447 MC214 is JRV Prescott "the Evolution of
Nigeria's Boundaries" and not J F Prescott
"Geographical problems associated with the Delimitations of the Nigeria - Kamerun Boundary
1885-1916".
MC91 3/657 4.287/449 MC91 is the German Colonial Gazette 1913, 24th
ed, No. 9; not Vol 24 (1913) no. 10.
MC87 3/637 4.364/474 MC87 is not a telegram but a letter dated 19 April
1913, from the Secretary of State at the Reich
Colonial office to the Secretary of State of
Foreign Affairs. The letter contains no reference
to when the demarcation was completed.
MC195 4/1459 4.425/448 MC195 makes no reference to Bakassi being
placed in the "Cameroons" as suggested in the
Memorial.
MC314 7/2603 4.432/490 MC314 contains only decrees 91/113 and 92/284.
The other orders and decrees listed in paragraph
4.432 in the Memorial are not included.
MC265 6/2195 4.433/491 MC265 is a letter from the Nigerian Consul-
General dated 12 February 1982 and not the
Visitors Book at the Idabato District Office dated
1 July 1976, as stated in paragraph 4.4.33.
MC240 5/1955 5.18/240 The Declaration of the Nigerian - Cameroon Joint
Boundary Commission (12th - 19th August 1970)
was appointed to examine "matters relating to the
delimitation of the precise boundary between
Nigeria and the Cameroon" and not the "problems
relating to the delimitation".
MC245 5/2007 5.27/513 The Cameroon Delegation pointed out and
"positively established" that Admiralty Chart No.
3433 "did not contain as many details necessary"
for their current exercise as did Chart No. 6245.
They did not state it was less reliable.
MC251 6/2079 5.53/521 The Memorial refers to the exchange of letters
dated 12 June and 17 July between President
Ahidjo and General Gowon. MC251 is the
Declaration of Maroua. Are these letters the
documents at pages 2091 and 2092?
MC334 7/2761 6.33/571 MC334 is dated 7 January 1994 while the
reference in the Memorial is 6 January 1994 - Are
these documents one and the same?
MC302 7/2523 6.73/585 Paragraph 6.73 lists MC296, 297, 299, 300, 301,
302. No note of 27 April 1990 is included in the
Annexes referred to.
MC353 7/2867 6.94/591 MC353 shows the date given in the quote
attached to the Memorial as 1984; not 1994.
Which is the correct date?
MC283 6/2357 6.121/599 MC283 referred to in paragraph 6.121 is the
L.C.B.C. contract and does not refer to captured
Cameroonian villages or other alleged Nigerian hostilities.
MC377 7/2979 7.15/633 MC377 lists the villages in the area of Lake Chad,
occupied by Nigerian forces since 1994 and not
since 1987 as suggested by the Memorial at
paragraph 7.15.
SCHEDULE TWO
Schedule of inadequacies in the Annexes (volumes II - VII)
to the Cameroon Memorial
CAMEROON-NIGERIA BOUNDARY DISPUTE
SCHEDULE 2
SCHEDULE OF INADEQUACIES IN THE ANNEXES
TO THE CAMEROON MEMORIAL
Reference Comments
MC7 Annex is different from the document described on the frontsheet.
MC8 Front sheet - third reference should be the 16 June and not the 18 June.
The seventh entry on the front sheet is in fact MC7.
MC9 Incorrect annex. However, both the last letter in MC8 and the annex
attached to MC7 are in fact MC9.
MC16 This does not appear to be a complete copy of the map.
The front sheet refers to a map to illustrate the boundary according to an
Agreement of 15 November 1893. However, the map says it illustrated an
Agreement of the 14 April 1893.
MC21 Front sheet says it was signed on the 13 June 1899. The document says it
was signed on the 14 June 1898.
MC22 This is illegible. Is it complete?
MC23 Incomplete copy - difficult to read.
Pages 134/136/137/138/139 illegible.
MC25 Very poor photocopy.
Pages 147/148 incompletely copied.
MC31 Annex is marked "draft". This is not reflected on the front sheet or in the
Memorial at page 484, para 4.399.
MC32 Illegible and incomplete copy.
MC33 Front sheet - incorrect spelling of Muehlberg - should be Mühlberg.
MC34 Enclomsdes ay through Inclosure 5 (p.214). MC39 Top of page 262 illegible.
MC40 Page 271 illegible.
Page 272 illegible.
Page 274 illegible.
MC41 No signature. Is it a complete copy?
MC42 Page 286 incomplete copy.
MC44 Page 303 and page 306 illegible. Incomplete copy.
MC47 Please confirm where this is referred to in the Memorial.
Page 347 incomplete copy.
Page 359 incomplete copy.
Page 366 incomplete copy.
Page 368 incomplete copy.
MC48 Incomplete copy. Stops at page 6 midway through sentence.
MC51 Illegible and incomplete copy.
MC57, 62, 65 and Cannot find any reference to these in the Memorial. Should these also be
81. referred to in paragraph 4.280 of the Memorial.
MC 59 Copying all mixed up.
MC63 Article V of page 495 illegible.
MC64 Manuscript at page 500 illegible.
MC66 Page 512 - manuscript on copy illegible.
MC78 Page 572 difficult to read.
MC92 Please confirm where this is referred to in the Memorial.
MC94 Refers to enclosing 4 maps. Only one enclosed.
MC95 Pages 693/694 identical to pages 665 and 666 in MC92.
MC96 Pages 701 and 702 are identical.
MC97 The letter is from Mr G V Fiddes and not Mr H Read as indicated on the
front sheet.
MC103 Pages 739, 741, 742, 743, 744 and 745 are either very difficult to read or
illegible.
MC104 Should this be dated 20 June, rather than July 1917?
The following pages are difficult to read or illegible - 763, 764, 765, 767,
769 and 775.
MC106 Front sheet should read 19/04/1913 - not 1918.
MC112 Page 842 difficult to read.
MC113 The following pages are illegible - 845, 846, 847, 848, 849 and 850.
MC114 Pages 853, 854, 855, 856, 857 and 859 very difficult to read and in parts illegible.
MC115 What is this? No description on front sheet. Please confirm where it is
referred to in the Memorial?
MC116 Annex has no correlation to front sheet nor is it referred to in the
Memorial.
MC117 Pages 885 to 894 are not part of this exhibit.
Pages 986 and 898 are incomplete copies.
MC118 Pages 907 and 909 are illegible.
MC120 Pages 922 and 923 are illegible.
MC121 Pages 927, 928, 929 and 930 are incomplete.
MC124 Pages 947, 949, 950, 951, 952, 953, 954, 955, 956, 957, 958 and 959 are
illegible.
MC125 23 April should be reference on front sheet - not 27 April.
MC128 Please identify where this is referred to in the Memorial.
MC129 Please identify where this is referred to in the Memorial.
Page 1035 is illegible and incomplete.
MC130 The front sheet says 2 June 1923. It should be 26 June 1923.
MC131 The front sheet indicates that page 43 is included. The pages included
appear to be pages 153, 154 and 155. Is the extract complete?
Also, please identify where this is referred to in the Memorial.
MC133 Please identify where this is referred to in the Memorial and exactly what
is relied upon.
The front sheet indicates that page 2 only is the annex. However, the annex
also contains other pages. It also goes from page 3 (page 1067) straight to
page 12 (page 1068)
MC134 Page 1071 is illegible.
MC135 This annex is completely absent.
MC136 Page 1081. The bottom of the page has been cut off.
Please identify where it is referred to in the Memorial.
MC139 Please identify where this is referred to in the Memorial.
Page 1098 is illegible.
MC140 Page 1102 - illegible.
MC141 Please identify where this is referred to in the Memorial.
Is the excerpt complete?
Pages 1105 and 1106 illegible in parts.
MC142 Please identify where this is referred to in the Memorial. MC143 Page 1113 is an incomplete copy (top right hand corner missing).
MC146 and The annexures appear to be the wrong way round, i.e. annexure 147 is
MC147 attached to the annex 146 front sheet.
In MC146 please confirm whether pages 84 and 85 are relied upon and if
so where they are referred to in the Memorial.
MC149 Please confirm where this is referred to in the Memorial.
Page 78 is an incomplete copy.
The front sheet may be incorrect. It states that the Annexure is 1927
Cameroon under French Mandate report - pages 78/79. However, the
manuscript in the document suggests that it is Permanent Mandate
Commission Minutes - Thirteenth Session 1928.
MC150 Incomplete copy - page 1148 - left hand side cut off.
MC151 The Memorial refers to this at page 353 but the annexure attached does not
have the correct date and does not appear to be the annex referred to on
page 353. Please confirm where MC151 is referred to in the Memorial.
Illegible copy on page 1151.
MC157 The following pages are illegible in parts, 1194, 1195, 1197, 1198, 1199,
1200, 1201, 1202, 1203, 1205, 1206 and 1207.
MC161 Page 1230 illegible.
MC162 The front sheet is incorrect. Letter is dated 29 September 1932 not 30
September 1932.
MC163 Page 1243 is illegible.
MC165 Please confirm where this is referred to in the Memorial.
The front sheet indicates that the annex is the 2 November 1934 -
Permanent Mandate's Commission Minutes - 25th Session page 67. The
exhibits are confused. They seem to be the Permanent Mandate's
Commission Minutes dated 12 June 1934.
What is page 1257/8. It is relied upon in the Memorial? If so, where.
What are pages 1260 to 1263. They appear to be dated 2 November 1934.
Are these relied upon, and if so, please confirm reference in the Memorial.
MC166 What is page 1268? Is it relied upon and if so, confirm reference in
Memorial.
Page 1268 is incomplete.
The Memorial refers to page 94 and page 177. However, these do not form
part of the annex.
MC167 Please confirm where this is relied upon in the Memorial.
Nigeria understands from the front sheet to the Annex that only page 2 is considered by Cameroon to be relevant. Please confirm that Nigeria's
understanding is correct.
MC168 Please identify what is relied upon. The front sheet suggests page 2 only is
relied upon as does the reference in the Memorial.
MC169 Page 1288 is illegible.
MC170 Please confirm exactly what in this annex is relied upon. The front sheet
and the Memorial suggest page 62 only.
MC172 Please confirm exactly what is relied upon. The front sheet refers to a letter
from the Foreign Office to the French Ambassador in London dated 9 July
1937. This is found at pages 1312 to 1313. However, there are other (badly
photocopied) documents in the Annex. Is the front sheet incorrect?
Pages 1314 to 1317 appear to be the pages relied upon in the Memorial.
MC173 Illegible.
MC174 The front sheet does not refer to pages 1332 and 1333.
The front sheet refers to an Agreement relating to the instructions on
marking the boundaries. The Annex is Instructions from the British
government to the British delegation. This is also exhibited at MC175.
MC175 Pages 1337 to 1339 and 1340 to 1343 are the same as 1325 to 1327 and
1328 to 1331. Have they been included in Annex MC174 by mistake? If
so, where is Annex 174.
What are pages 1344 and 1345? Are they relied upon in the Memorial. If
so, please state where.
MC176 Where is this referred to in the Memorial? Are only pages 6 and 7 relied
upon?
MC178 Page 7 of the Protocol is missing.
MC183 Please confirm where this is referred to in the Memorial.
Please also confirm which pages are relied upon in the Memorial.
Pages 1401 to 1403 are incompletely copied.
MC185 Please confirm where this is referred to in the Memorial.
Page 1416 is illegible.
Page 1417 is an incomplete copy.
MC186 Page 1422. Is this the correct excerpt? It does not relate to the Memorial
reference.
MC190 Please confirm where this is referred to in the Memorial.
Please confirm what part of the annex is relied upon.
MC191 Please confirm where this is referred to in the Memorial.
The front sheet is incorrect.MC192 The top of page 1450 has been cut off.
MC193 Please confirm where this is referred to in the Memorial and exactly what
part of the annex is relied upon.
Page 1454 is an incomplete copy.
MC194 Please confirm where this is referred to in the Memorial.
MC196 A very confusing Annex.
The front sheet is incorrect. Pages 50 to 51 are exhibited.
Where do pages 1473 to 1497 come from.
Page 1491 is the same as 1467.
Page 1492 is the same as 1468.
Page 1493 is the same as 1470.
Page 1494 is the same as 1471.
Pages 1473 to 1490 are all out of order.
Page 1473 is illegible.
Page 1476 is incomplete.
Page 1479 is illegible.
Page 1480 incomplete.
Page 1482 incomplete.
Page 1483 illegible.
Page 1484 illegible.
Page 1485 illegible.
Page 1486 illegible.
Page 1487 illegible.
Page 1488 incomplete.
Page 1489 incomplete.
Page 1490 incomplete.
Pages 1495 and 1497 are illegible.MC197 Please confirm where this is referred to in the Memorial.
Please confirm what documents from the Annex are actually relevant. Is it
solely page 337 as indicated in the front sheet?
Is page 337 page 1501 or 1502?
MC198 The front sheet is incorrect. It refers to page 39 only.
Page 1505 is incomplete.
Page 1506 illegible.
Page 1507 incomplete.
Page 1509 incomplete.
Page 1516 incomplete.
MC199 It is appropriate to set out on the front sheet what is included in the Annex.
It is a bundle of pages with no explanation where they come from or why
they are included.
Page 1519 is illegible.
Page 1520 is illegible.
Page 1522 - is this relied upon?
Page 1523 - is this relied upon.
Pages 1527/1528/1529 are incomplete.
Page 1530 is incomplete.
MC200 It is appropriate to identify on the front sheet exactly what documents are
being relied upon. At present it is just a bundle of miscellaneous
documents without reference.
In addition:-
Page 1541 incomplete.
Page 1558 incomplete.
Page 1564 incomplete.
Page 1576 incomplete.
Page 1577 incomplete. Page 1578 incomplete.
MC201 Please state where this is referred to in the Memorial.
Page 1583 partly illegible.
Pages 1584 and 1585 are incomplete.
MC202 Page 1604 illegible.
MC203 The front sheet refers to annexing pages 212 to 218. Pages 214 and 215 are
missing.
MC204 Please confirm exactly what is relied upon in the Memorial.
Page 1621 is an incomplete copy.
Page 1622 an incomplete copy.
Page 1626 incomplete copy.
Please confirm where page 1629 comes from.
MC205 Please confirm whether pages 1634-1639 are relied upon. If they are,
please provide the references in the Memorial.
MC207 Please confirm where this is relied upon in the Memorial.
Page 1654 incomplete.
Page 1656 incomplete.
Page 1659 incomplete.
Page 1660 incomplete.
Page 1661 incomplete.
Page 1662 incomplete.
Page 1664 incomplete.
Please confirm where page 1666 is from.
MC209 Please confirm where pages 1677 to 1684 are referred to in the Memorial.
MC210 Please confirm where this Annex is referred to in the Memorial.
MC211 Please confirm where this Annex is referred to in the Memorial.
MC212 Please confirm where this Annex is referred to in the Memorial.
MC214 Pages 96 and 97 of the Annex are missing.
MC216 Please confirm where this is referred to in the Memorial.
In addition, the document does not appear to be complete. It ends at page
5.MC217 Please confirm where this is referred to in the Memorial. The enclosure
jumps from page 25 to page 32.
MC218 Please confirm where this is referred to in the Memorial.
MC219 Please confirm where this is referred to in the Memorial.
The document appears to be incomplete. Only pages 1 and 4 are annexed.
MC220 Please confirm where this Annex is referred to in the Memorial. The front
sheet refers to page 77 only. However, the Annex contains 53 pages.
Please therefore identify on the front sheet exactly what is relied upon.
In addition:-
Page 1768 incomplete.
Page 1770 incomplete.
Page 1772 incomplete.
Page 1774 incomplete.
Page 1777 incomplete.
Page 1779 incomplete.
Page 1780 incomplete.
Page 1783 incomplete.
Page 1792 incomplete.
Page 1795 incomplete.
Page 1819 incomplete.
MC221 Please confirm the origin of page 1827. Is it part of MC221? Is it relied
upon?
MC224 Please confirm where this is referred to in the Memorial. The pages
included appear to be selective having the following page numbers only:
Pages 1, 21, 22, 51, 52, 53, 86, 87(?), 88(?) and 20.
Please confirm the origin of the documents.
MC228 Please confirm where this is referred to in the Memorial.
MC229 Page 1883 is illegible.
Page 1884 is illegible.
Page 1885 is illegible.
MC231 Please confirm where this is referred to in the Memorial.MC232 Please confirm where this is referred to in the Memorial.
MC236 Please confirm where this is referred to in the Memorial.
MC239 Page 1949 is illegible.
Page 1953 is illegible.
Is the Annex complete? It appears to end mid-sentence on page 1953.
Pages 2037, 2039 and 2043 are incomplete.
MC248 Page 2057 and 2058 are supposed to be maps 2 and 3.
Is page 2057 complete?
It will be necessary to identify page 2058.
MC251 The front sheet mentions two documents to be considered as Annexes to
the Declaration of Maroua. Are they pages 2091 and 2092? If so, the front
sheet is incorrect as it speaks of a letter from President Gowon dated 17th
June 1975. It is actually dated 17th July 1975.
It is necessary to clarify the identity of pages 2093-2098 (inclusive).
Where are they referred to in the Memorial?
MC252 Where is this referred to in the Memorial?
MC257 Page 2144 is a poor copy.
Page 2145 is incomplete.
MC258 Page 2151 is a poor copy.
Page 2152 is a poor copy.
Page 2153 is marked as a page "2" but so is page 2152.
Is this is a complete copy of this document?
MC260 Page 2165 illegible.
Page 2166 illegible.
Page 2167 illegible.
Page 2168 illegible.
MC261 Is the front sheet correct? It speaks of the 15th June 1981. Should it be the
5th June 1981.
Page 2172 is incomplete.
MC264 Do we have a complete copy of the annex?
Page 2190 is numbered page 3. Page 2191 numbered page 5.
Page 2193 is numbered page 3.
Page 2194 is numbered page 5.
MC268 Where is this referred to in the Memorial?
MC271 Page 2235 is incomplete
Page 2236 incomplete.
Page 2252 incomplete.
MC272 In parts the following pages are illegible.
Page 2260.
Page 2261.
Page 2262.
Page 2263.
Page 2264.
Page 2265.
Page 2266.
Page 2267.
Page 2268.
Page 2269 stops mid-sentence.
The Annex has pages 24, 25, 26 and 27. It then goes on to 83, 84, 85, 86,
87, 88, 89, 90 and 91. Upon what exactly is reliance being placed? Is it
solely page 84?
MC275 Please confirm where this is referred to in the Memorial and exactly what
documents are being relied upon.
Page 2304 illegible.
Page 2305 better copy required.
Page 2306 better copy acquired.
Page 2307 better copy required. Page 2308 better copy required.
Page 2309 incomplete.
Page 2310 illegible.
Page 2311 illegible.
Page 2312 ends mid-sentence.
MC278 Please confirm where this is referred to in the Memorial. It appears as if
the document is dated 26.5.1986. The front sheet states 25.5.1986.
MC281 Page 2352. Please confirm what this is referred to in the Memorial. It is
not identified on the front sheet.
MC282 Please confirm where this is referred to in the Memorial.
MC283 The front sheet is wrong. It refers to No. 94/F/SED/2000. The document
actually appears to be No. 94/F/SED/200.
MC285 Do pages 2391 to 2397 form part of the document at pages 2389 to 2390?
They are not referred to on the front sheet.
MC286 Page 2404 illegible.
MC288 Page 2413 ends mid-sentence.
MC289 The document annexed is the same document to that annexed at 288.
Which one is the correct document? Neither is dated.
Where is the document described under the front sheet of 289.
MC290 Page 2421 illegible.
MC291 Please confirm where this is referred to in the Memorial. Only pages 74
and 75 are supplied. Is anything else relied upon? This document appears
for a second time as MC294.
MC293 Pages 3 & 5 only are provided.
MC294 This Annex is precisely the same as MC291.
Page 75 cuts off mid-sentence.
MC295 This is the same as MC293. Which document is correctly described on its
front sheet. Is there a document missing? If so, please provide a copy.
MC296 The front sheet is incorrect. It should read document No:
387/MTLS/MIAT/DAP/SDAA/SAA. (DAP is omitted).
The front sheet fails to describe the other documents also enclosed. Where
are they referred to in the Memorial? Are they relied upon?
Page 2494 almost illegible.
Page 2496 impossible to read manuscript.
MC298 Please identify where this is referred to in the Memorial.
Page 2505 stops mid-sentence. The Annex would appear to be incomplete.MC299 The date on the front sheet may be incorrect. The front sheet dates the
document as 2 May 1990. The document itself bears a date of 28 May
1990 (although it is not wholly clear whether this is the date of despatch or
receipt).
The manuscript on page 2509 is illegible.
MC300 Page 2513 illegible.
Page 2514 illegible.
Page 2515 illegible.
Page 2516 illegible.
Page 2517 illegible.
MC301 Page 2521 manuscript illegible.
Page 2522 signature illegible.
MC302 Page 2525 manuscript illegible.
MC303 Page 2532 illegible in part.
The Memorial refers to pages 2 and 3 only (2532/2533). What are pages
2535-2537? Are they relied upon? If so, please confirm where they are
referred to in the Memorial.
MC304 Page 2541 illegible.
MC305 Is only page 89 relied upon? What is page 2548? Is it relied upon? If so
please identify where it is referred to in the Memorial.
MC306 Pages 2553 and 2554 are difficult to read.
MC307 Page 2557 is difficult to read.
MC308 Page 2561 unclear photocopy.
Page 2562 unclear photocopy.
MC309 Please confirm where this is referred to in the Memorial. Does the text of
the Report commence on page 2566 or is there a page missing?
MC310 The front sheet is incorrect. The document is dated 27 June 1991. The
front sheet refers to it being dated 26, 27 and 28 June 1991. The meeting
following which the report was prepared, took place on 26 and 27 June
only.
MC311 Page 2577 manuscript illegible.
MC314 The decree number 91/113 of 29 November 1991 is also included but is
not referred to on the front sheet.
MC317 Please confirm where this is referred to in the Memorial.
The document is described on the front sheet as being 18 February 1992.
However it appears to be dated 21 January 1992. Is it the correct
document? The manuscript is illegible on page 2633. The conclusion to the annex appears to be the same as that exhibited at MC222.
MC318 Please confirm where this is referred to in the Memorial.
MC320 Page 2651 is the same as Page 2652. Is the note complete?
Page 2653 is illegible.
MC321 Please confirm where this is referred to in the Memorial.
MC322 The document is the same as MC317. It appears that the correct place for
the document is MC322.
Page 2674 is incomplete on the left hand side.
MC323 Please confirm where this is referred to in the Memorial.
MC324 No copy of the document referred to on the front sheet as Presidential
Decree No. 93/398 of 28 April 1993 is found in the Annex.
There appear to be 2 copies of Decree No. 93/399 described on the front
sheet. Pages 2685 to 2696 and 2697 to 2708 are the same.
Page 2683 is illegible in part.
MC325 What is page 2713. It is not identified on the front sheet. Is it relied upon
and if so please confirm where it is referred to in the Memorial.
MC327 Pages 2723-2731 and 2733 are very poor copies.
MC329 Is page 2741 complete?
MC331 The front sheet is the same as MC332. The document exhibited appears to
be correct.
MC332 Page 2753 is illegible.
MC333 Please confirm where this is referred to in the Memorial.
MC334 The top of page 2763 has been cut off.
MC337 Front sheet states that the document is dated 9 February 1994. The
document is marked 19 February 1994.
MC338 Page 2781 is incomplete.
MC340 Please confirm where this is referred to in the Memorial.
MC341 The front sheet gives the date as 21st February 1994. This is not correct. It
should read 20th April 1994.
The Annex contains 2 documents not one as specified on the front sheet.
What is page 2796?
MC342 BIS Please confirm where this is referred to in the Memorial.
MC343 Page 2817 is illegible.
MC345 This is incomplete. Page 2828 ends mid-sentence.
MC346 Page 2832 is not described on the front sheet. Is it relied upon and if so
please confirm where it is referred to in the Memorial.
MC350 Page 2853 the left hand side has been cut off.
MC351 Please confirm that only pages 5, 13 and 14 of the exhibits are relied upon.
Pages 2859 and 2860 are also in MC268 (at pages 2219 and 2220). MC352 The document is the same as MC342 BIS. From the description on the
front sheet, MC352 appears to be missing (with the exception of the last 4
pages).
MC355 The frontsheet shows the date as 12 April. The document appears to be
dated 11 April. Pages 2880 and 2881 appear to be MC356.
MC358 The top of page 2893 has been cut off (manuscript).
MC362 Pages 2912 and 2914 are incomplete.
MC367 Page 2937 is incomplete and finishes mid-sentence.
MC369 Please confirm where this is referred to in the Memorial.
MC371 Page 2953 is very difficult to read. What is the document at pages 2954
and 2955. This is not referred to on the front sheet. Is it relied upon and if
so where is it referred to in the Memorial.
MC375 Please confirm where this is referred to in the Memorial.
The front sheet is incorrect. It describes the letter as number 3.27/02 etc. It
is in fact number E.27/02 etc.
MC376 Please confirm where this is referred to in the Memorial.
MC378 Please confirm where this is referred to in the Memorial.
MC381 Please confirm where this is referred to in the Memorial.
Page 3004 and 3005 are incomplete copies. There appears to be a page
missing from the Annex.
MC382 Please confirm where this is referred to in the Memorial.
LIST OF ANNEXES
TO
NIGERIA'S PRELIMINARY OBJECTIONS
Volume II: NPO 1 - NPO 60
NPO Description Date
1. Letter from President Ahidjo of Cameroon to President 23 May 1981
Shagari of Nigeria
2. Letter from President Shagari of Nigeria to President Ahidjo of 25 May 1981
Cameroon
3. Letter from President Ahidjo to President Shagari togethe16 July 1981
with a reply dated 20 July 1981
4. Minutes of the Second Session of the Nigeria/Cameroon Joint 5 November 1993
Commission held at Abuja
5. Nigeria's Declaration Recognizing as Compulsory the 14 August 1965
Jurisdiction of the Court (extracts from ICJ Yearbook 1993/4
at page 108/109)6. CameroD oeslaraton ognizing as Compulsory the 3 March 1994
Jurisdiction of the Court (extracts from ICJ Yearbook 1993/4
at page 87)
7. Depositary Notification from the Secretary-General of the 9 February 1995
United Nations relating to the Declaration by Cameroon
8. Letter and Telex from the Registrar of the International Court29 March 1994
of Justice to Nigeria's Minisitry of External Affairs
9. Convention and Statute of the Lake Chad Basin Commission 22 May 1964
together with a Protocol of Amendment dated 22 October 1972
10. Minutes of a Meeting between Nigeria and Cameroon held at 9 June 1965
Mamfe for Preliminary Discussions on the Danare/Boudam
boundary dispute
11. Minutes of a Meeting between Nigeria and Cameroon held at 7 June 1965
Ikom for Preliminary Discussions on the Danare/Boudam
Boundary Dispute
12. Joint Report on the first stage of the Nigeria/Cameroon 8 June 1966
Boundary Survey of May 1966
13. Minutes of a Meeting of the Joint Nigeria/Cameroon Boundary 14 August 1970
Commission held at Yaounde
14. Declaration of the Joint Nigeria/Cameroon Boundary 14 August 1970
Commission (in English and French)
15. Minutes of a Meeting of the Joint Nigeria/Cameroon Technical 23 October 1970
Committee held at Lagos
16. Report of the Joint Nigeria/Cameroon Boundary Commission 23 October 1970
held at Lagos
17. Report of the Nigerian Delegation to a Meeting of the Joint 4 April 1971
Nigeria/Cameroon Boundary Commission held at Yaounde
18. Report of the Cameroon Delegation to a Meeting of the Joint 4 April 1971
Nigeria/Cameroon Boundary Commission held at Yaounde
19. Declaration of the Joint Nigeria-Cameroon Boundary 4 April 1971
Commission made at Yaounde
20. Minutes of a Meeting of the Joint Nigeria/Cameroon Boundary 14 June 1971
Commission held at Lagos
21. Declaration of the Joint Nigeria-Cameroon Boundary 21 June 1971
Commission made at Lagos (in English and French)
22. Minutes and Joint Communique from a Meeting of the 5 May 1972
Nigeria/Cameroon Permanent Consultative Committee held at
Yaounde
23. Joint Communique on a State visit by the Nigerian Head of 6 August 1972
State to Garoua
24. Joint Communique on the Meetings of the Heads of State of 1 September 1974
Nigeria and Cameroon held at Kano
25. Maroua Declaration (in English and French). 1 June 1975
26. Draft/Joint Communique on a State visit to Nigeria by the 14 January 1982
Cameroonian Head of State27. Translation of a Republic of Cameroon Diplomatic Note to the 21 October 1977
Embassy of Nigeria - No. 10700/DIPL/1/S/AF
28. Embassy of Nigeria Diplomatic Note to the Republic of 10 November 1977
Cameroon - No. 152/77
29. Republic of Cameroon Diplomatic Note to the Embassy of 21 June 1978
Nigeria No. 6108/DIPL/1 (with English translation)
30. Embassy of Nigeria Diplomatic Note to the Republic of 29 August 1978
Cameroon - No. 114/78
31. Republic of Cameroon Diplomatic Note to the Embassy of 14 September 1978
Nigeria - No. 9005/DIPL/1 (with English translation)
32. Republic of Cameroon Diplomatic Note to the Embassy of 24 October 1978
Nigeria No. 10389/DIPL/SAT
33. Republic of Cameroon Diplomatic Note to the Embassy of 30 October 1978
Nigeria - No. 10629/DIPL/1
34. Letter from Nigerian Commissioner for External Affairs to the November 1978
Nigerian Head of State reporting on the outcome of meetings
with Cameroon held on 1 - 4 November in Jos
35. Joint Communique of the Joint Nigeria/Cameroon 4 November 1978
Commission made at Jos
36. Embassy of Nigeria Diplomatic Note to the Republic of 22 January 1979
Cameroon - No. 7/79
37. Republic of Cameroon Diplomatic Note to the Embassy of 2 February 1979
Nigeria - No. 1146/DIPL/1/S/AF (with English translation)
38. Republic of Cameroon Diplomatic Note to the Embassy of 10 June 1980
Nigeria - No. 5415/DIPL/1
39. Embassy of Nigeria Diplomatic Note to the Republic of 8 October 1985
Cameroon - No. 163/85
40. Embassy of Nigeria Diplomatic Note to the Republic of 8 January 1986
Cameroon - No. 08/86
41. Republic of Cameroon Diplomatic Note to the Embassy of 7 February 1986
Nigeria - No. 900/DIPL/D1/A (with English translation)
42. Letter from the Government of Cameroon to Nigeria's 7 February 1986
Ministry of External Affairs
43. Republic of Cameroon Diplomatic Note to the Embassy of 13 June 1986
Nigeria - No. 3975/DIPL/DI/A/AF (with English translation)
44. Embassy of Nigeria Diplomatic Note to the Republic of 28 August 1986
Cameroon - No. 141/86
45. Republic of Cameroon Diplomatic Note to the Embassy of 14 October 1986
Nigeria - No. 7210/DIPL/D1/A
46. Embassy of Nigeria Diplomatic Note to the Republic of 26 March 1987
Cameroon - No. 46/87
47. Republic of Cameroon Diplomatic Note to the Embassy of 13 April 1987
Nigeria - No. 2702/DIPL/D1/A/AF
48. Embassy of Nigeria Diplomatic Note to the Republic of 17 August 1987 Cameroon - No 109/87
49. Republic of Cameroon Diplomatic Note to the Embassy of 14 August 1987
Nigeria - No. 6024/DIPL/D1/A
50. Embassy of Nigeria Diplomatic Note to the Republic of 8 March 1988
Cameroon - No. 51/88
51. Protocol of the Inaugural Session of the Joint Nigeria- 28 August 1987
Cameroon Commission held at Yaounde
52. Minute of a Meeting of Experts from Nigeria and Cameroon 29 August 1991
53. Joint Communique adopted by the Nigerian and Cameroonian 29 August 1991
Ministers of External Affairs and Relations
54. Minutes of a Joint Meeting of Nigerian and Cameroonian 19 December 1991
Experts on Boundary Matters held at Abuja (in English and
French)
55. Minutes of the Third Session of the Nigeria/Cameroon Joint 13 August 1993
Meeting of Experts on Boundary Matters (including Joint
Communiqué)
56. Republic of Cameroon Diplomatic Facsimile to the Federal 19 January 1994
Republic of Nigeria - No. 13/DIPL/D1
57. Letter from the Nigerian Minister of Foreign Affairs to 20 January 1994
Cameroon's Minister of External Relations
58. Republic of Cameroon Diplomatic Note to the Embassy of 8 February 1994
Nigeria - No. 70457/DIPL/D1/SDAF
59. Embassy of Nigeria Diplomatic Note to the Republic of 8 February 1994
Cameroon - No. 32/114/Vol V1/94
60. Letter from the Head of State of Nigeria to the President of 14 February 1994
Cameroon
Volume III: NPO 61 - NPO 87
NPO Description Date
61. Extracts from the Minutes of the 30th Session of the Lake 25 April 1985
Chad Basin Commission
62. Minutes of the 5th Conference of the Heads of State (Lake 29 April 1985
Chad Basin Commission)
63. Extracts from the Minutes of the 31st Session of the Lake 21 December 1985
Chad Basin Commission
64. Extracts from the Minutes of the 32nd Session of the Lake 14 May 1986
Chad Basin Commission
65. Extracts from the Minutes of the 33rd Session of the Lake 9 December 1986
Chad Basin Commission
66. Extracts from the Minutes of the 34th Session of the Lake 26 October 1987
Chad Basin Commission
67. Minutes of the 6th Conference of Heads of State (Lake Chad 29 October 1987
Basin Commission) and the Final Communique68. Extracts from Minutes of the 35th Session of the Lake Chad 16 January 1988
Basin Commission
69. Extracts from the Minutes of the Special Session of the Lake 2 August 1988
Chad Basin Commission
70. Extracts from the Minutes of the 36th Session of the Lake 1 December 1988
Chad Basin Commission
71. Extracts from the Minutes of the 37th Session of the Lake 24 May 1989
Chad Basin Commission
72. Extracts from the Minutes of the 38th Session of the Lake 30 November 1989
Chad Basin Commission
73. Extracts from the Minutes of the 7th Conference of Heads of 14 February 1990
State (Lake Chad Basin Commission)
74. Extracts from the Minutes of the 39th Session of the Lake 21 November 1990
Chad Basin Commission
75. Extracts from the Minutes of the 40th Session of the Lake 15 January 1992
Chad Basin Commission
76. Extracts from the Minutes of the 41st Session of the Lake 6 April 1983
Chad Basin Commission
77. Minutes of the 8th Conference of Heads of State (Lake Chad 23 March 1994
Basin Commission) and the Final Communique
78. Embassy of Nigeria Diplomatic Note to the Republic of 14 April 1994
Cameroon No: 72/114/Vol VI/94
79. Embassy of Nigeria Diplomatic Note to the Republic of 14 April 1994
Cameroon No: 73/114/Vol VI/94
80. Embassy of Nigeria Diplomatic Note to the Foreign and 20 April 1994
Commonwealth Office and others No 215/94
81. Republic of Cameroon Diplomatic Note to the Embassy of 8 April 1994
Nigeria No: 77/CF/DIPL/SDAF/AO
82. Minutes of a Meeting of Experts of the Joint Commissions 30 August 1991
held at Yaounde, Cameroon
83. Joint Communique adopted by the Ministers of External 29 August 1991
Affairs and Relations
84. Part A: References in Cameroon's application to various
alleged border incidents;
Part B: References in Cameroon's additional application of 6
June 1994 to various alleged border incidents
85. Republic of Cameroon Diplomatic Note to the Embassy of 21 October 1993
Nigeria No: 5688/DIPL/D1/SDAF/AO, and Appendix
86. Embassy of Nigeria Diplomatic Note to the Republic of 13 May 1991
Cameroon No: 98/114/Vol III/91
87. Minutes of a meeting between Mr Leopold Oyono of 24 January 1994
Cameroon and Ambassador M G Bello of Nigeria _________
FOOTNOTES
1 At a meeting between the President and the representatives of the Parties held on 14 June
1994 the Agent of Cameroon informed the President that it had not been the intention of
Cameroon to present a separate Application, but rather that the Additional Application was
intended as an amendment of the initial Application. See ICJ Reports 1994 p.105 (Order of 16
June 1994).
2 The translation of this Note forms the first page of Annexe MC 355 to the Memorial: the
Annexe reference number is omitted from the text of paragraph 1.67 of the Memorial.
3 Cf Aegean Sea Continental Shelf Case (Greece v Turkey) ICJ Reports 1978 p.3 at p.36
(paragraph 86).
4 See (1946) 40 AJIL Supp 45 (emphasis added). The Court in 1969 treated it as "the starting
point of the positive law on the subject": ICJ Reports 1969 at pp. 114-115.
5 In the North Sea Continental Shelf Cases ICJ Reports 1969 p.6 at p.23, the Court noted that,
"if, for instance, the Parties are unable to enter into negotiations, - any cartographer can de
facto trace [an equidistance] boundary on the appropriate maps and charts and those traced by
competent cartographers will for all practical purposes agree." But it refused to treat
equidistance as the rule of law for delimiting the continental shelf between adjacent or
opposite coasts.
6 Ibid at p.35 (paragraph 53), repeated at p.36 (paragraph 55).
7 Ibid. at p.42 (paragraph 72) (twice repeated). To similar effect, ibid. at p.98 (Judge Padilla
Nervo, separate opinion).
8 To use the Court's language in the North Sea Continental Shelf Cases ICJ Reports 1969 p.6
at p.27 (paragraph 34). The Court refused in the circumstances of that case to determine the
point at which the obligation to negotiate would be satisfied: ibid. (paragraph 35).
9 Cf North Sea Continental Shelf Cases ICJ Reports 1969 p.6 at pp. 47-8 (paragraph 87),
where the Court held that a negotiation between the parties which failed to deal with the
specific factual situation due to the conflicting legal positions of the parties did not constitute
a negotiation in good faith, as required by international law.
10 Gulf of Maine Case (Canada/United States of America) ICJ Reports 1984 p.247 at p.299
(paragraph 112) (emphasis added). Cf ibid. at p.311 (paragraph 154) ("primary rule").
11 Case concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) ICJ Reports
1982 p.18 at p.43 (paragraph 37).12 The Court distinguished between these two phases, of negotiation between the parties and
judicial delimitation: Case Concerning Maritime Delimitation in the Area between Greenland
and Jan Mayen (Denmark v Norway) ICJ Reports 1993 p.38 at p.63 (paragraph 57).
13 See eg. Delimitation of the Continental Shelf (United Kingdom v France), decision of a
Court of Arbitration, 30 June 1977, 18 UNRIAA p.3, at p.44 (paragraph 66); Case concerning
the Continental Shelf (Tunisia v Libyan Arab Jamahiriya) ICJ Reports 1982 p.18 at p.68-71
(paragraphs 90-96) (and cf Tunisia/Libya (Application for Revision and Interpretation) ICJ
Reports 1985 p.192 at p.206 (paragraph 27); Gulf of Maine Case (Canada/United States of
America) ICJ Reports 1984 p.246 at pp.279-87 (paragraphs 61-76); Maritime Delimitation
Case (Guinea/Guinea Bissau), decision of a Court of Arbitration, 14 February 1985, 77 ILR
635 at pp. 654-656 (paragraphs 31-6); Case concerning the Continental Shelf (Libyan Arba
Jamahiriya/Malta) ICJ Reports 1985 p.13 at pp.28-29 (paragraphs 24-25); Case concerning
Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway)
ICJ Reports 1993 p.38 at pp.55-56 (paragraph 38). In the Aegean Sea Case (Greece v Turkey)
ICJ Reports 1978 p.3, Turkey (which did not appear before the Court) nonetheless argued that
the Court should not entertain the case because the parties had agreed that there should be
"frank, thoroughgoing" negotiations: at p.11 (paragraph 27). The Court rejected the argument.
But even in this case, there was no question that the parties had notice of each other claims
and had sought to resolve them through a series of meetings, even agreeing in principle to
refer to dispute to the Court; ibid. at pp.8-10 (paragraphs 16-22), 36-37 (paragraphs 87-8), 44-
4 (paragraphs 101-6). The case is to be explained as one where negotiations had in fact
occurred and the parties were well aware of each other's positions. The Court did not require,
in terms of the 1969 Judgment, that these negotiations be "finally abortive": above, paragraph
7.20 and footnote 8.
1 See Ministry of External Relations, Republic of Cameroon, Note, 21 October 1993,
enclosing amended minutes to the Joint Meeting held in August (NPO 85). The proposal for a
Gulf of Guinea Commission was a Nigerian initiative, raised with Cameroon by diplomatic
note dated 13 May 1991 (NPO 86). A Joint Communiqué following a Ministerial Meeting in
August 1991 stated that:
"In furtherance of the objectives of the above Treaty, the Cameroonian side agreed to a
Nigerian proposal for the establishment of the Gulf of Guinea Commission comprising beside
Nigeria and Cameroon, Gabon, Equatorial Guinea and São Tomé e Principe and proposed to
host the first meeting of experts responsible for drafting the basic instrument setting up said
Commission after necessary consultation by Nigeria with the other countries concerned."
Joint Communiqué, Yaoundé, 29 August 1991, p. 3, (NPO 53).
2 The only subsequent indication of the position of the parties, prior to the unheralded
commencement by Cameroon of the present proceedings, was given at a meeting between the
Cameroon Minister of External Relations and the Nigerian Ambassador, held on 24 January
1994. The Nigerian Ambassador again raised the issue of the proposed Gulf of Guinea
Commission, to which the Cameroon reply was only that Equatorial Guinea was "of the view
that the border between Cameroon and Equitorial [sic] Guinea be demarcated [sic] first before
meeting with Nigeria to determine the tripartite point." Minutes of the Meeting between the
Honourable Minister of External Relations HE Mr Leopold Oyono and HE Ambassador MG
Bello, 24 January 1994; (NPO 87).
Preliminary Objections of the Federal Republic of Nigeria