INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING

THE NORTHERN CAMEROONS

(CAMEROON ». UNITED KINGDOM)
PRELIMINARY OBJECTIONS

JUDGMENT OF 2 DECEMBER 1963

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU
CAMEROUN SEPTENTRIONAL

(CAMEROUN c. ROYAUME-UNI)
EXCEPTIONS PRELIMINAIRES

ARRET DU 2 DECEMBRE 1963
This Judgment should be cited as follows:

“Case concerning the Northern Cameroons
(Cameroon v. United Kingdom), Preliminary Objections,
judgment of 2 December 1963: I.C.J. Reports 1963, p. 15.”

Le présent arrét doit étre cité comme suit:

« Affaire du Cameroun septentrional
(Cameroun c. Royaume-Uni), Exceptions préliminaires,
Arrêt du 2 décembre 1963: C.I. J. Recueil 1963, p. 15.»

Sales number
N° de vente:

1963
2 December
General List:
No. 48

15

INTERNATIONAL COURT OF JUSTICE

YEAR 1963
2 December 1963

CASE CONCERNING

THE NORTHERN CAMEROONS

(CAMEROON v. UNITED KINGDOM)
PRELIMINARY OBJECTIONS

Preliminary questions : existence of a dispute between Parties ; compliance
of Application with Article 32 (2) of Rules of Court—Trusteeship A gree-
ment for Territory of Cameroons under British Administration—Setsing
of Court and administration of justice—fudicial function and limitations
on its exercise—Termination of Trusteeship Agreement by decision of
General Assembly and legal effects thereof—Alleged breaches of Trusteeship
Agreement—Nature of claim and relief sought—Declaratory judgments—
Inability of Court in present case to render a judgment capable of effective
application.

JUDGMENT

Present: President WINIARSKI; Vice-President ALFARO; Judges
BaSDEVANT, BADAWI, MORENO QUINTANA, WELLINGTON
Koo, SPIROPOULOS, Sir Percy SPENDER, Sir Gerald Firz-
MAURICE, KORETSKY, TANAKA, BUSTAMANTE Y RIVERO,
Jessup, Moreiii; Judge ad hoc Bes a Don; Registrar
GARNIER-COIGNET.
16 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

In the case concerning the Northern Cameroons,

between
the Federal Republic of Cameroon,
represented by

H.E. M. Vincent de Paul Ahanda, Ambassador of the Federal
Republic of Cameroon to Belgium, Luxembourg and the
Netherlands,

as Agent,

and by

Mr. Paul Engo, Judge,

as Assistant Agent,

assisted by

M. Prosper Weil, Professor at the Nice Faculty of Law and
Economics (University of Aix-Marseille),

M. Robert Parant, Judge, Director of Judicial Affairs and of the
Seal, Ministry of Justice,

as Counsel,

M. El Hadji Moussa Yaya, Deputy, Vice-President of the Federal
National Assembly,

M. Eloi Langoul, Conseiller référendaire of the Supreme Court of
Eastern Cameroon, Principal Private Secretary to the Minister
of State for Justice and Keeper of the Seals,

M. François-Xavier Tchoungui, Principal Private Secretary to the
Minister for Foreign Affairs,

as Advisers,

and

M. Charles Debbasch, Lecturer agrégé at the Faculty of Law and
Economics of the University of Grenoble,

M. Paul Isoart, Assistant Lecturer at the Nice Faculty of Law and
Economics (University of Aix-Marseille),

as Experts,

and

the United Kingdom of Great Britain and Northern Ireland,
represented by

Sir Francis Vallat, K.C.M.G., Q.C., Legal Adviser to the Foreign
Office,

as Agent,

and by

Mr. P. J. Allott, an Assistant Legal Adviser, Foreign Office,

as Assistant Agent,

assisted by

Rt. Hon. Sir John Hobson, O.B.E., T.D., Q.C., M.P., Attorney-
General,
17 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

Mr. M. E. Bathurst, C.M.G., C.B.E., a member of the English
Bar,

Mr. D. H. N. Johnson, Professor of International and Air Law in
the University of London,

as Counsel,

and

Mr. P. R. A. Mansfield, West and Central African Department,
Foreign Office,
as Adviser,

THE COURT,
composed as above,

delivers the following Judgment :

On 30 May 1967 the Ambassador of Cameroon to France handed
to the Registraran Application which, referring to a dispute between
his Government and the Government of the United Kingdom,
prayed the Court to adjudge and declare that, in the application of
the Trusteeship Agreement for the Territory of the Cameroons under
British Administration approved by the General Assembly of the
United Nations on 13 December 1946, the United Kingdom failed,
with regard to the Northern Cameroons, to respect certain obli-
gations directly or indirectly flowing from that Agreement. To
found the jurisdiction of the Court the Application relies on Ar-
ticle 19 of the Trusteeship Agreement.

In accordance with Article 40, paragraph 2, of the Statute of the
Court, the Application was communicated to the Government of the
United Kingdom. In accordance with paragraph 3 of the same
Article, the other Members of the United Nations and the non-
member States entitled to appear before the Court were notified.

Time-limits for the filing of the Memorial and the Counter-
Memorial were fixed by an Order of 6 July 1961 and subsequently
extended at the request of the Parties by Orders of 2 November
1961, 25 April and ro July 1962. The Memorial and Counter-
Memorial were filed within the time-limits so extended. In the
Counter-Memorial, filed on 14 August 1962, the Government of the
United Kingdom not only referred to the merits of the case but also
raised preliminary objections under Article 62 of the Rules of Court.
Accordingly, an Order of 3 September 1962 recorded that by virtue
of the provisions of Article 62, paragraph 3, of the Rules of Court,
the proceedings on the merits were suspended and fixed 1 December
1962 as the time-limit within which the Government of Cameroon
might present a written statement of its observations and sub-
missions on the preliminary objections. At the request of the
Government of Cameroon this time-limit was extended to 1 March
1963 by an Order of 27 November 1962 and further extended to
I July 1963 by an Order of 11 January 1963.

6
18 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

The statement having been presented within the time-limit so
extended, the case became ready for hearing in respect of the
preliminary objections.

Pursuant to Article 31, paragraph 2, of the Statute, the Govern-
ment of Cameroon chose M. Philémon Beb a Don, Ambassador of
Cameroon to France, to sit as Judge ad hoc in the present case.

On 19-23, 25-27, 30 September and 1 and 3 October 1963, hearings
were held in the course of which the Court heard the oral arguments
and replies of Sir Francis Vallat, Agent, and Sir John Hobson,
Counsel, on behalf of the Government of the United Kingdom; and
of M. Vincent de Paul Ahanda, Agent, Mr. Paul Engo, Assistant
Agent, and M. Prosper Weil, Counsel, on behalf of the Government
of Cameroon.

In the written proceedings, the following Submissions were pre-
sented by the Parties:

On behalf of the Government of Cameroon,
in the Application:
“May it please the Court:

to notify the present Application, in accordance with Article 40,
paragraph 2, of the Statute of the Court to the Government of the
United Kingdom;

to adjudge and declare, whether the Government of the United
Kingdom appears or not, and after such time-limits as the Court
may fix: that the United Kingdom has, in the application of the
Trusteeship Agreement of 13 December 1946, failed to respect
certain obligations directly or indirectly flowing therefrom on the
various points set out above’;

in the Memorial:

“The submissions of the Federal Republic of Cameroon are as
follows: may it please the Court to find in favour of the submis-
sions of its Application instituting proceedings and, in particular,
to adjudge and declare:

that the United Kingdom has, in the application of the Trusteeship
Agreement of 13 December 1946, failed to respect certain obligations
directly or indirectly flowing therefrom on the various points set
out above.”

On behalf of the Government of the United Kingdom,
in the Counter-Memorial:

“12. The British Government submit that the Court should
hold and declare:
19 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

(i) that, for the reasons stated in Part I of this Counter-Memorial,
the Court has no jurisdiction in this case;

(ii) that, if, contrary to the submission of the British Government,
the Court holds that it has jurisdiction, for the reasons stated
in Parts II and III of this Counter-Memorial, the allegations
made by the Republic of Cameroon of breach of the obligations
of the United Kingdom under the Trusteeship Agreement are
without foundation.”

On behalf of the Government of Cameroon,
in the Observations and Submissions on the preliminary objection:

“On the basis of the foregoing observations, and reserving all its
rights with regard to the merits of the case, the Federal Republic
of Cameroon has the honour to lay the following submissions before
the Court:

May it please the Court:

1. To dismiss the preliminary objection of the United Kingdom
to the effect that the Court should declare that it has no jurisdiction ;

2. To dismiss the preliminary objection of the United Kingdom
based on failure to observe the provisions of Article 32, paragraph 2,
of the Rules of Court;

3. To adjudge and declare that the United Kingdom has, in the
interpretation and application of the Trusteeship Agreement for
the Territory of the Cameroons under British Administration, failed
to respect certain obligations directly or indirectly flowing from the
said Agreement, and in particular from Articles 3, 5, 6 and 7 thereof.”

In the oral proceedings the following Submissions were presented
by the Parties:

On behalf of the Government of the United Kingdom,
at the hearing on 23 September 1963:

“For the reasons which I have presented to the Court, I now
submit that it should hold and declare that the Court has no
jurisdiction in this case, and [ sustain the first conclusion in para-
graph 112 of the United Kingdom Counter-Memorial.”’

On behaif of the Government of Cameroon,
after the hearing on 27 September 1963:

“May it please the Court:

I. To dismiss the preliminary objection of the United Kingdom
to the effect that the Court should declare that it has no jurisdiction;

2. To dismiss the preliminary objection of the United Kingdom
based on failure to observe the provisions of Article 32, paragraph 2,
of the Rules of Court;

3. To adjudge and declare that the United Kingdom has, in the
interpretation and application of the Trusteeship Agreement for
20 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

the Territory of the Cameroons under British Administration, failed
to respect certain obligations directly or indirectly flowing from the
said Agreement, and in particular from Articles 3, 5, 6 and 7 thereof.”

On behalf of the Government of the United Kingdom,

at the hearing on 1 October 1963:

“For the reasons given in the Counter-Memorial and the oral
statements presented on behalf of the United Kingdom during the
present hearing, the United Kingdom makes the following sub-
missions:

(x) that there has not at any time been a dispute as alleged in
the Application in this case;

(2) that there has not been or was not on 30 May 1961, as alleged
in the Application, a dispute falling within Article 19 of the Trustee-
ship Agreement for the Territory of the Cameroons under United
Kingdom Administration;

(3) that, in any event, there is no dispute before the Court upon
which the Court is entitled to adjudicate.

May it, therefore, please the Court:

Having regard to each and all of the above submissions, to uphold
the preliminary objections of the United Kingdom and to declare
that the Court is without jurisdiction in the present case and that
the Court will not proceed to examine the merits.”

On behalf of the Government of Cameroon,
at the hearing on 3 October 1963:

“For the reasons given in its pleadings and oral statements, the
Federal Republic of Cameroon has the honour to make the following
submissions:

May it please the Court:

I. To dismiss the preliminary objections of the United Kingdom
to the effect that the Court should declare that it has no jurisdiction ;

2. To declare that it has jurisdiction to examine the merits of the
claim of the Federal Republic of Cameroon to the effect that the
Court should adjudge and declare that the United Kingdom has, in
the interpretation and application of the Trusteeship Agreement
for the Territory of the Cameroons under British Administration,
failed to respect certain obligations directly or indirectly flowing
from the said Agreement, and in particular from Articles 3, 5, 6
and 7 thereof.”

The President having asked the Agent of the Government of the
United Kingdom whether he had any observations to make on the
submissions thus presented by. the Government of Cameroon,
the Agent stated that he had no comment to make in so far as
the submissions related to the question of jurisdiction and the pre-
liminary objections of the United Kingdom.

*
* *
21 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

In order to be in a position to pass upon the submissions of the
Parties, the Court must take into account certain facts which under-
lie the Applicant’s complaints. Although the Court will subse-
quently enter into some points in greater detail, it will, at the
outset, present in broad outline the facts which it has found to be
important to an appreciation of the case.

The historical background of the Application filed by the Re-
public of Cameroon on 30 May 1961 relates to one of the several
important political developments affecting certain territories in the
continent of Africa which have taken place in recent years. The
territory here in question, known as the Northern Cameroons,
formed part of the ‘‘oversea possessions” the rights and titles to
which Germany renounced under Article 119 of the Treaty of
Versailles of 28 June 1919, and which were placed under the Man-
dates System of the League of Nations. In conformity with a decision
of the Council of Four at the Peace Conference, the Governments of
France and Great Britain recommended that the territory which
had been known as the German protectorate of Kamerun should be
divided into two Mandates, the one to be administered by France
and the other by Great Britain. This recommendation was accepted
and the Mandates were established.

After the creation of the United Nations, the French and British
Governments proposed to place these mandated territories under
the International Trusteeship System. Trusteeship Agreements for
the Territory of the Cameroons under British Administration and
for the Territory of the Cameroons under French Administration
with the approval of the General Assembly of the United Nations
entered into force on 13 December 1946.

The Government of the United Kingdom as the Administering
Authority maintained in the Trust Territory of the Cameroons the
same administrative arrangements which it had first instituted
when the Mandate was accepted. Under these arrangements the
territory was divided into a northern region and a southern region.
The Northern Cameroons was itself not a geographical whole but
was in two sections, separated by a narrow strip of the territory of
what was then the British Protectorate of Nigeria which bordered
the entire western side of the Mandate. The Northern Cameroons
was administered as part of the two northern provinces of Nigeria,
Bornu and Adamawa. The Southern Cameroons was administered
until 1939 as a separate Cameroons Province of Southern Nigeria.
Thereafter, the Southern Cameroons was joined for administrative
purposes to the eastern provinces of Nigeria as a separate province.

The Trust Territory of the Cameroons under French Adminis-
tration, which formed the entire eastern and most of the northern
frontier of the Trust Territory of the Cameroons under British

10
22 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

Administration, attained independence as the Republic of Cameroon
on I January 1960. On 20 September 1960 the Republic of Cameroon
became a Member of the United Nations. On 1 October 1961,
pursuant to the results of a plebiscite conducted under the auspices
of the United Nations, the Southern Cameroons joined the Republic
of Cameroon within which it then became incorporated.

Meanwhile, also consequent upon a plebiscite conducted under
the auspices of the United Nations on 11 and 12 February 1961,
the Northern Cameroons on 1 June 1961 joined the Federation
of Nigeria which had become independent on r October 1960 and
which was admitted as a Member of the United Nations six days
later. The Northern Cameroons became and remains a separate
province of the Northern Region of Nigeria.

The situation of the Trust Territories of the Cameroons under
French Administration and of the Cameroons under British Ad-
ministration received much attention from the Trusteeship Council
of the United Nations and from the General Assembly itself. Indeed,
the General Assembly on 5 December 1958 decided to resume its
thirteenth session in February 1959 “‘to consider exclusively the
question of the future of the Trust Territories of the Cameroons
under French Administration and the Cameroons under United
Kingdom Administration’. In addition, the whole question of
administrative unions in trust territories was over many years the
subject of repeated study within the United Nations.

The reports of visiting missions to the two Trust Territories of
the Cameroons under French and British administration respect-
ively, the proceedings of the Trusteeship Council and of the Fourth
Committee of the General Assembly as well as the reports of the
United Nations Plebiscite Commissioner who supervised plebiscites
held in the Trust Territory of the Cameroons under British Ad-
ministration, afford abundant background for the questions raised
by the Republic of Cameroon in its Application of 30 May 1967
instituting proceedings against the United Kingdom. Since proceed-
ings on the merits were suspended as recorded in the Order of
3 September 1962, the Court, as already noted, refers to this body
of material only for the purpose of indicating the setting in which
it has been called upon to consider the Application and Memorial of
the Republic of Cameroon and the Preliminary Objections thereto
which have been filed by the United Kingdom. It is necessary,
however, by way of clarification of what follows, to refer specifically
to three of the resolutions adopted by the General Assembly of
the United Nations.

On 13 March 1959, the General Assembly adopted resolution
1350 (XIII). It recommended that the Administering Authority,
in consultation with a United Nations Plebiscite Commissioner,
organize under the supervision of the United Nations separate
plebiscites in the northern and southern parts of the Cameroons
under British administration ‘“‘in order to ascertain the wishes of

II
23 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

the inhabitants of the Territory concerning their future”, In the
Southern Cameroons, the plebiscite was held on 11 February 1967:
the vote registered a decision “to achieve independence by joining
the independent Republic of Cameroun”. In the Northern
Cameroons a first plebiscite was held on 7 November 1959; the
vote was in favour of deciding their future at a later date. Ac-
cordingly, by resolution 1473 (XIV) of 12 December 1959, the
General Assembly recommended that a second plebiscite be held in
the Northern Cameroons in which the people would. be asked
whether they wished “to achieve independence” by joining the
independent Republic of Cameroon or by joining the independent
Federation of Nigeria. By the same resolution, the General Assembly
recommended that the United Kingdom should meanwhile take
various steps including the initiation without delay of the ‘‘separ-
ation of the administration of the Northern Cameroons from that of
Nigeria and that this process should be completed by 1 October
1960”. It is one of the complaints of the Republic of Cameroon as
Applicant here, that the United Kingdom as Administering Au-
thority failed to take the necessary steps to comply with this
recommendation.

The plebiscite was held on 11 and 12 February 1961, and on 21
April 1961 the General Assembly adopted resolution 1608 (XV)
which has special significance in this case. The resolution includes
the following three paragraphs:

“2. Endorses the results of the plebiscites that:

(a) The people of the Northern Cameroons have, by a substantial
majority, decided to achieve independence by joining the in-
dependent Federation of Nigeria;

{b) The people of the Southern Cameroons have similarly decided
to achieve independence by joining the independent Republic
of Cameroun;

3. Considers that, the people of the two parts of the Trust Territory
having freely and secretly expressed their wishes with regard to
their respective futures in accordance with General Assembly
resolutions 1352 (XIV) and 1473 (XIV), the decisions made by them
through democratic processes under the supervision of the United
Nations should be immediately implemented;

4. Decides that, the plebiscites having been taken separately
with differing results, the Trusteeship Agreement of 13 December
1946 concerning the Cameroons under United Kingdom adminis-
tration shall be terminated, in accordance with Article 76 6 of the
Charter of the United Nations and in agreement with the Ad-
ministering Authority, in the following manner:

(a) With respect to the Northern Cameroons, on 1 June 1961, upon
its joining the Federation of Nigeria as a separate province of
the Northern Region of Nigeria;

12
24 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

(6) With respect to the Southern Cameroons, on I October 1961,
upon its joining the Republic of Cameroun;”.

The Republic of Cameroon voted against the adoption of this
resolution.

Although in a Memorandum of 1 May 1961 from the Republic
of Cameroon Ministry of Foreign Affairs transmitted to the United
Kingdom (which hereafter will more particularly be referred to)
the position was taken that the Trusteeship could not be terminated
without the consent of the Republic of Cameroon “‘in its capacity
as a State directly concerned’’, the Applicant did not maintain this
position and the fact that the Trusteeship Agreement was termi-
nated by the General Assembly’s resolution 1608 (XV), is now
admitted by both Parties.

Even before the discussions which led up to resolution 1608 (XV),
the Republic of Cameroon expressed its dissatisfaction with the
manner in which the separation of the administration of the Northern
Cameroons from that of Nigeria was being implemented by the
United Kingdom. As early as May 1960, before the Republic of
Cameroon became a Member of the United Nations, its point of view
was expounded on its behalf by the representative of France in the
Trusteeship Council. After its admission to membership of the
United Nations, by a communiqué attached to a note verbale of
4 January 1961 to the United Kingdom, the Republic of Cameroon
asserted on its own behalf that this administrative separation had
not been made effective and that the United Kingdom as Adminis-
tering Authority had not conducted the peoples of the Northern
Cameroons to self-government as provided in Article 76 (b) of the
Charter of the United Nations. Thereafter, and after the plebiscite
of February Ig61, representatives of the Republic of Cameroon
through numerous interventions in the Fourth Committee of the
General Assembly and in the plenary sessions of the Assembly,
made known its objections to certain alleged practices, acts or
omissions on the part of the local trusteeship authorities during the
period preceding the plebiscite and during the course of the plebis-
cite itself which it claimed altered the normal course of the consul-
tation with the people and involved consequences in conflict with
the Trusteeship Agreement. Throughout, the Republic of Cameroon
emphasized its view that the “rule of unity’’ had been disregarded
by the Administering Authority and thereby the political develop-
ment of the Trust Territory had been altered.

These objections, together with the allegations by the Republic
of Cameroon that the Administrative separation recommended in
General Assembly resolution 1473 (XIV) had not been effected, and
the complaint that the whole Trust Territory had not been ad-
ministered as a single administrative unit, were developed in a
Cameroon White Book distributed by it to all Members of the
United Nations in March 1961 when the results of the second

13
25 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

plebiscite in the Northern Cameroons were being debated in the
Fourth Committee of the General Assembly. In response to this
White Book, letters in rebuttal were similarly distributed by
the representatives of the United Kingdom and of Nigeria. It was
following this exchange and the attendant debates that the General
Assembly adopted resolution 1608 (XV) previously referred to.

Following the adoption of the General Assembly’s resolution
1608 (XV), the Republic of Cameroon, on 1 May 1961, addressed a
communication to the United Kingdom in which it referred to
complaints ‘‘of a legal character’? which had been advanced by it
and which it wished to have considered by this Court. The com-
plaints are listed in its communication and they correspond with
those which in the Application are stated to be the matters relating
to the execution of the Trusteeship Agreement on the part of the
Administering Authority and constituting the subject of the dispute
between the Republic of Cameroon and the United Kingdom. Its
communication referred to a dispute concerning the application of
the Trusteeship Agreement and requested the United Kingdom
to enter into a special agreement for the purpose of bringing the
same before this Court. No reference was made in the communi-
cation of the Republic of Cameroon to Article 19 of the Trustee-
ship Agreement which hereafter will be referred to.

To this communication the United Kingdom replied on 26 May
1061 stating that the dispute did not appear to be between it and
the Republic of Cameroon but between the latter and the United
Nations General Assembly. The policies or practices with which the
Republic of Cameroon found fault, the reply goes on to state, had
been endorsed by the United Nations and the United Kingdom did
not deem it proper to submit to the International Court a dispute
concerning these. To refer the matter to this Court, the letter
proceeded to say, would call in question the decision of the General
Assembly as set out in its resolution 1608 (XV) and introduce an
element of uncertainty into a matter decided by the Assembly. For
these stated reasons the United Kingdom declared they were
unable to comply with the request of the Republic of Cameroon to
refer the matter to this Court.

Four days later, on 30 May 1961, the Republic of Cameroon
submitted its Application to the Court, basing the jurisdiction of
the Court on Article 19 of the Trusteeship Agreement which reads
as follows:

“Article 19. Tf any dispute whatever should arise between the
Administering Authority and another Member of the United Nations
relating to the interpretation or application of the provisions of
this Agreement, such dispute, if it cannot be settled by negotiation
or other means, shall be submitted to the International Court of
Justice, provided for in Chapter XIV of the United Nations Charter.”’

14
26 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

Pursuant to General Assembly resolution 1608 (XV), the Trustee-
ship Agreement was terminated, with respect to the Northern
Cameroons, two days later, on I June 1961.

*
* *

The Application lists the following complaints:

“(a) The Northern Cameroons have not, in spite of the text of
Article 5, $B, of the Trusteeship Agreement, been administered
as a separate territory within an administrative union, but as an
integral part of Nigeria.

(6) Article 6 of the Trusteeship Agreement laid down as objectives
the development of free political institutions, a progressively in-
creasing share for the inhabitants of the Territory in the adminis-
trative services, their participation in advisory and legislative
bodies and in the government of the Territory. These objectives, in
the opinion of the Republic of Cameroon, have not been attained.

(c) The Trusteeship Agreement did not authorize the Adminis-
tering Power to administer the Territory as two separate parts,
contrary to the rule of unity, in accordance with two administrative
systems and following separate courses of political development.

(d) The provisions of §7 of Resolution 1473 relating to the
separation of the administration of the Northern Cameroons from
that of Nigeria have not been followed.

(e) The measures provided for in § 6 of the same Resolution in
order to achieve further decentralization of governmental functions
and the effective democratization of the system of local government
have not been implemented.

(f) The conditions laid down by $ 4 of the Resolution for the
drawing up of electoral lists were interpreted in a discriminatory
manner, by giving an improper interpretation to the qualification
of ordinary residence.

(g) Practices, acts or omissions of the local Trusteeship authorities
during the period preceding the plebiscite and during the elections
themselves altered the normal course of the consultation and in-
volved consequences in conflict with the Trusteeship Agreement.”

The formulation of the grievances of the Republic of Cameroon is
stated in differing language in the Application, its Memorial, its
Written Observations and Submissions and its Final Submissions.
It suffices at this point, and in the light of what has already been
said, to quote from the Final Submissions the prayer—

“that the Court should adjudge and declare that the United King-
dom has, in the interpretation and application of the Trusteeship
Agreement for the Territory of the Cameroons under British
Administration, failed to respect certain obligations directly or
indirectly flowing from the said Agreement, and in particular from
Articles 3, 5, 6 and 7 thereof”’.

15
27 NORTHERN CAMEROONS (JUDGMENT OF 2 XII-63)

The Counter-Memorial of the United Kingdom, in Part II thereof,
dealt with the merits of the case, the stated reason being that the
United Kingdom thought assertions of the Republic of Cameroon
should not remain unanswered. Part I of the Counter-Memorial
raised a number of preliminary objections.

These objections were developed at considerable-length during
the course of the oral hearing. For reasons which will subsequently
appear, the Court does not find it necessary to consider ail the
objections, nor to determine whether all of them are objections
to jurisdiction or to admissibility or based on other grounds.
During the course of the oral hearing little distinction if any was
made by the Parties themselves between “jurisdiction” and
“admissibility”. There are however two objections which the
Court thinks should be disposed of at this stage.

The first of these objections is the contention of the United
Kingdom that there is no ‘‘dispute”’ between itself and the Republic
of Cameroon. If any dispute did at the date of the Application
exist, it is the United Kingdom’s contention that it was between
the Republic of Cameroon and the United Nations or its General
Assembly.

The Court is not concerned with the question whether or not any
dispute in relation to the same subject-matter existed between the
Republic of Cameroon and the United Nations or the General
Assembly. In the view of the Court it is sufficient to say that, having
regard to the facts already stated in this Judgment, the opposing
views of the Parties as to the interpretation and application of
relevant Articles of the Trusteeship Agreement, reveal the existence
of a dispute in the sense recognized by the jurisprudence of the Court
and of its predecessor, between the Republic of Cameroon and the
United Kingdom at the date of the Application.

The other preliminary objection, that the Court finds it convenient
at this stage to deal with, is based on Article 32 (2) of the Rules of
Court which provides that when a case is brought before it by means
of an application, the application must not only indicate the subject
of the dispute as laid down in Article 40 of the Court’s Statute but
it must also “as far as possible’ specify the provision on which
the Applicant founds the jurisdiction of the Court, and state the
precise nature of the claim and the grounds on which it is based.

In the Observations and Submissions of the Republic of Cam-
eroon, this objection is treated separately as one to the admissi-
bility of the Application and the Memorial.

The Court cannot be indifferent to any failure, whether by
Applicant or Respondent, to comply with its Rules which have
been framed in accordance with Article 30 of its Statute. The Per-
manent Court of International Justice in several cases felt called
upon to consider whether the formal requirements of its Rules
had been met. In such matters of form it tended to ‘‘take a broad

16
28 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

view”. (The “Société Commerciale de Belgique”, P.C.1.J., Series A/B,
No. 78, p. 173.) The Court agrees with the view expressed by the
Permanent Court in the Mavrommatis Palestine Concessions case

(P.C.I.J., Series A, No. 2, p. 34):

“The Court, whose jurisdiction is international, is not bound to
attach to matters of form the same degree of importance which
they might possess in municipal law.”

The Court is quite conscious of the Applicant’s deeply felt concern
over events referred to in its pleadings and if there were no other
reason which in its opinion would prevent it from examining the
case on the merits, it would not refuse to proceed because of the
lack of what the Permanent Court in the case of the Interpretation
of the Statute of the Memel Territory, called a “convenient and
appropriate method in which to bring the difference of opinion
before the Court” (P.C.I.J., Series A/B, No. 49, p. 317).

The Court notes that whilst under Article 40 of its Statute the
subject of a dispute brought before the Court shall be indicated,
Article 32 (2) of the Rules of Court requires the Applicant “‘as far as
possible” to do certain things. These words apply not only to speci-
fying the provision on which the Applicant founds the jurisdiction
of the Court, but also to stating the precise nature of the claim and
giving a succinct statement of the facts and grounds on which the
claim is based. In the view of the Court the Applicant has sufficiently
complied with the provisions of Article 32 (2) of the Rules and the
preliminary objection based upon non-compliance therewith is
accordingly without substance.

+
* *

The arguments of the Parties have at times been at cross-purposes
because of the absence of a common meaning ascribed to such terms
as “interest” and “admissibility”. The Court recognizes that these
words in differing contexts may have varying connotations but it
does not find it necessary in the present case to explore the meaning
of these terms. For the purposes of the present case, a factual
analysis undertaken in the light of certain guiding principles may
suffice to conduce to the resolution of the issues to which the
Court directs its attention.

The geographical propinquity of the Republic of Cameroon to
the former Trust Territory of the Northern Cameroons, and the
degree of affinity between the populations of the two regions, led
the Republic of Cameroon to view the developments regarding the
former Trust Territory with intense concern. The Court cannot
blind its eyes to the indisputable fact that if the result of the
plebiscite in the Northern Cameroons had not favoured joining the
Federation of Nigeria, it would have favoured joining the Republic
of Cameroon. No third choice was presented in the questions framed

17
29 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

by the General Assembly and no other alternative was contem-
poraneously discussed.

The Republic of Cameroon, as a Member of the United Nations
as from 20 September 1960, had a right to apply to the Court and
by the filing of the Application of 30 May 1961 the Court was
seised. This procedural right to apply to the Court, where, whatever
the outcome, all aspects of a matter can be discussed in the objective
atmosphere of a court of justice, is by no means insubstantial.
The filing of an application instituting proceedings, however, does
not prejudge the action which the Court may take to deal with the
case.

In its Judgment of 18 November 1953 on the Preliminary
Objection in the Nottebohm case (I.C.J. Reports 1953, p. 122), the
Court had occasion to deal at some length with the nature of
seisin and the consequences of seising the Court. As this Court said
in that Judgment: “the seising of the Court is one thing, the
administration of justice is another”. It is the act of the Applicant
which seises the Court but even if the Court, when seised, finds
that it has jurisdiction, the Court is not compelled in every case
to exercise that jurisdiction. There are inherent limitations on the
exercise of the judicial function which the Court, as a court of
justice, can never ignore. There may thus be an incompatibility
between the desires of an applicant, or, indeed, of both parties to a
case, on the one hand, and on the other hand the duty of the Court
to maintain its judicial character. The Court itself, and not the
parties, must be the guardian of the Court’s judicial integrity.

In the Free Zones case, the Permanent Court referred to three
different considerations which would lead it to decline to give
judgment on questions posed by the parties. These were raised by
the Court proprio motu. In the Order of 19 August 1929 (P.C.I.J.,
Series A, No. 22, p. 15), the Court in the first place said that—

“the Court cannot as a general rule be compelled to choose between
constructions [of a treaty] determined beforehand none of which
may correspond to the opinion at which it may arrive...”

In the second place, in its Judgment of 7 June 1932 in the same
case (P.C.I.J., Series A/B, No. 46, p. 161) the Court said:

“After mature consideration, the Court maintains its opinion that
it would be incompatible with the Statute, and with its position as
a Court of Justice, to give a judgment which would be dependent
for its validity on the subsequent approval of the Parties.”

Finally the Court went on to say (at p. 162), in regard to paragraph
2 of Article 2 of the Special Agreement which would have involved a

18
30 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

decision by the Court on questions such as specific tariff exemptions
to be established, that the task thus assigned to the Court by the
parties was “unsuitable to the role of a Court of Justice”. Moreover,
the “interplay of economic interests” posed questions—

“outside the sphere in which a Court of Justice, concerned with the
application of rules of law, can help in the solution of disputes
between two States”.

The Court may, of course, give advisory opinions—not at the
request of a State but at the request of a duly authorized
organ or agency of the United Nations. But both the Permanent
Court of International Justice and this Court have emphasized
the fact that the Court’s authority to give advisory opinions must
be exercised as a judicial function. Both Courts have had occa-
sion to make pronouncements concerning requests for advisory
opinions, which are equally applicable to the proper role of the
Court in disposing of contested cases; in both situations, the
Court is exercising a judicial function. That function is circum-
scribed by inherent limitations which are none the less imperative
because they may be difficult to catalogue, and may not frequently
present themselves as a conclusive bar to adjudication in a concrete
case. Nevertheless, it is always a matter for the determination of
the Court whether its judicial functions are involved. This Court,
like the Permanent Court of International Justice, has always
been guided by the principle which the latter stated in the case
concerning the Status of Eastern Carelia on 23 July 1923:

“The Court, being a Court of Justice, cannot, even in giving
advisory opinions, depart from the essential rules guiding their
activity as a Court.” (P.C.I.J., Series B, No. 5, p. 29.)

In the Haya de la Torre case (I.C.]. Reports 1951, pp. 78-79), the
Court noted that both parties sought from the Court a decision
“as to the manner in which the asylum should be terminated”.
It ordered that the asylum should terminate but refused to indicate
means to be employed to give effect to its order. The Court said:

“The interrogative form in which they have formulated their
Submissions shows that they desire that the Court should make a
choice amongst the various courses by which the asylum may be
terminated. But these coursés are conditioned by facts and by
possibilities which, to a very large extent, the Parties are alone in
a position to appreciate. A choice amongst them could not be based
on legal considerations, but only on considerations of practicability
or of political expediency; it is not part of the Court’s judicial
function to make such a choice.”

19
31 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

To determine whether the adjudication sought by the Applicant
is one which the Court’s judicial function permits it to give, the
Court must take into account certain facts in the present case.

*
* *

The Applicant’s explanations of what it does and does not ask
the Court to decide, are variously formulated in its written and oral
pleadings. The Court believes that the clearest explanation is to be
found in the Applicant’s Observations and Submissions as follows:

“When a State brings an action before the Court on the basis of
a provision of the nature of Article 19 of the Trusteeship Agreement
for the Cameroons under British administration, it may no doubt
in certain cases, in addition to seeking a finding that a violation
of the Trusteeship Agreement has been committed, ask the Court
to declare that the administering Power is under an obligation to
put an end to that violation. Thus, in the South West Africa cases,
Ethiopia and Liberia in their submissions asked the Court both
for a finding of certain violations (the policy of apartheid, failure
to render annual reports, failure to transmit petitions, etc.) and for
a declaration that South Africa is under an obligation to bring these
violations to an end. But this can only be so when what is involved
is what might be called a ‘continuing violation’ capable of being
stopped pursuant to the Court’s Judgment. When, on the other
hand, the breach of the agreement has been finally consummated
and it is physically impossible to undo the past, the Applicant
State is no longer in a position to ask the Court for more than a
finding, with force of res judicata, that the Trusteeship Agreement
has not been respected by the administering Power.

In the case in point the violations referred to have been finally
consummated, and the Republic of Cameroon cannot ask for a
reshtutio in integrum having the effect of non-occurrence of the
union with Nigeria and non-division of the Territory, or fulfilment
of the objectives laid down in Article 6 of the Agreement, or ob-
servance of Resolution 1473; it can only ask for a finding by the
Court of the breaches of the Trusteeship Agreement committed by
the Administering Authority.”

In the course of his oral argument, Counsel for the Applicant
said:

“The Republic of Cameroon considers in fact that, by administering
the Northern Cameroons as it did, the Administering Authority
created such conditions that the Trusteeship led to the attachment
of the northern part of the Cameroons to a State other than the
Republic of Cameroon.”

In the Cameroon White Book already mentioned, it is said that
“failure to separate the administrations of the two territories
destroyed an essential guarantee of impartiality and effectively
sabotaged the plebiscite’. The White Book continued by saying:

20
32 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

“The only acceptable solution to avoid a monstrous injustice ... is
to declare the plebiscite ... null and void...”

The injustice alleged seems clearly enough to have been “the
attachment of the northern part of the Cameroons to a State other
than the Republic of Cameroon”.

But the Court is not asked to redress the alleged injustice; it
is not asked to detach territory from Nigeria; it is not asked to
restore to the Republic of Cameroon peoples or territories claimed
to have been lost; it is not asked to award reparation of any kind.

It was not to this Court but to the General Assembly of the
United Nations that the Republic of Cameroon directed the argu-
ment and the plea for a declaration that the plebiscite was null and
void. In paragraphs numbered 2 and 3 of resolution 1608 (XV),
the General Assembly rejected the Cameroon plea. Whatever the
motivation of the General Assembly in reaching the conclusions
contained in those paragraphs, whether or not it was acting wholly
on the political plane and without the Court finding it necessary to
consider here whether or not the General Assembly based its
action on a correct interpretation of the Trusteeship Agreement,
there is no doubt—and indeed no controversy—that the resolution
had definitive legal effect. The plebiscite was not declared null and
void but, on the contrary, its results were endorsed and the General
Assembly decided that the Trusteeship Agreement should be
terminated with respect to the Northern Cameroons on x June
1961. In the event, the termination of the Trusteeship Agreement
was a legal effect of the conclusions in paragraphs 2 and 3 of reso-
lution 1608 (XV). The Applicant here has expressly said it does not
ask the Court to revise or to reverse those conclusions of the General
Assembly or those decisions as such, and it is not therefore neces-
sary to consider whether the Court could exercise such an authority.
But the Applicant does ask the Court to appreciate certain facts
and to reach conclusions on those facts at variance with the con-
clusions stated by the General Assembly in resolution 1608 (XV).

If the Court were to decide that it can deal with the case on the
merits, and if thereafter, following argument on the merits, the
Court decided, inter alia, that the establishment and the maintenance
of the administrative union between the Northern Cameroons and
Nigeria was a violation of the Trusteeship Agreement, it would
still remain true that the General Assembly, acting within its
acknowledged competence, was not persuaded that either the
administrative union, or other alleged factors, invalidated the
plebiscite as a free expression of the will of the people. Since the
Court has not, in the Applicant’s submissions, been asked to review
that conclusion of the General Assembly, a decision by the Court,
for example that the Administering Authority had violated the

2r
33 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

Trusteeship Agreement, would not establish a causal connection
between that violation and the result of the plebiscite.

Moreover, the termination of the Trusteeship Agreement and the
ensuing joinder of the Northern Cameroons to the Federation of
Nigeria were not the acts of the United Kingdom but the result of
actions of the General Assembly, actions to which the United
Kingdom assented. Counsel for the Republic of Cameroon admit-
ted that it was the United Nations which terminated the Trustee-
ship. He said:

“Cameroon is not asking the Court to criticize the United Nations;
Cameroon is not asking the Court to say that the United Nations
was wrong in terminating the Trusteeship; Cameroon is not asking
the Court to pronounce the annulment of resolution 1608. The
Court, of course, would not be competent to do that...”

The administrative union, as established during the Trusteeship,
whether legally or illegally, no longer exists. The Republic of
Cameroon, however, contends that its interest in knowing whether
that union was a violation of the Trusteeship Agreement, is not a
merely academic one. It in fact contends that there was a causal
connection between the allegedly illegal administrative union and
the alleged invalidity of the plebiscite. Counsel for the Republic of
Cameroon made this contention clear in a passage already quoted.

But the Applicant has stated that it does not ask the Court to
invalidate the plebiscite; indeed as noted, it recognizes the Court
could not do so. It has not asked the Court to find any causal
connection between the alleged maladministration and the result of
the vote favouring union with the Federation of Nigeria. Asa result,
the Court is relegated to an issue remote from reality.

If the Court were to proceed and were to hold that the-Applicant’s
contentions were all sound on the merits, it would still be impossible
for the Court to render a judgment capable of effective application.
The role of the Court is not the same as that of the General Assem-
bly. The decisions of the General Assembly would not be reversed
by the judgment of the Court. The Trusteeship Agreement would
not be revived and given new life by the judgment. The former
Trust Territory of the Northern Cameroons would not be joined
to the Republic of Cameroon. The union of that territory with the
Federation of Nigeria would not be invalidated. The United
Kingdom would have no right or authority to take any action with
a view to satisfying the underlying desires of the Republic of
Cameroon. In accordance with Article 59 of the Statute, the
judgment would not be binding on Nigeria, or on any other State,
or on any organ of the United Nations. These truths are not
controverted by the Applicant.

The function of the Court is to state the law, but it may pronounce
judgment only in connection with concrete cases where there

22
34 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

exists at the time of the adjudication an actual controversy in-
volving a conflict of legal interests between the parties. The
Court’s judgment must have some practical consequence in the
sense that it can affect existing legal rights or obligations of the
parties, thus removing uncertainty from their legal relations. No
judgment on the merits in this case could satisfy these essentials
of the judicial function.

*
+ *

The Trusteeship Agreement with respect to the Northern Cam-
eroons having been validly terminated by resolution 1608 (XV), the
Trust itself disappeared; the United Kingdom ceased to have the
rights and duties of a trustee with respect to the Cameroons;
and what was formerly the Trust Territory of the Northern Cam-
eroons has joined the independent Federation of Nigeria and is
now a part of that State.

Looking at the situation brought about by the termination of the
Trusteeship Agreement from the point of view of a Member of the
United Nations, other than the Administering Authority itself, it
is clear that any rights which may have been granted by the
Articles of the Trusteeship Agreement to other Members of the
United Nations or their nationals came to an end. This is not to say
that, for example, property rights which might have been obtained
in accordance with certain Articles of the Trusteeship Agreement
and which might have vested before the termination of the Agree-
ment, would have been divested by the termination. It is the fact,
however, that after 1 June 1961 when the Trust over the Northern
Cameroons ceased to exist, no other Member of the United Nations
could thereafter claim any of the rights or privileges in the Northern
Cameroons which might have been originally granted by the
Trusteeship Agreement. No such claim could be made on the
United Kingdom which as trustee was funcius officio and divested
of all power and authority and responsibility in the area. No such
claim could be made on Nigeria, which now has sovereignty over
the territory, since Nigeria was not a party to the Trusteeship
Agreement and never had any obligations under it. Nor is it
apparent how such a claim could be made against the United
Nations itself. Moreover, pursuant to Article 59 of the Statute a
judgment of the Court in this case would bind only the two Parties.

The claim of the Republic of Cameroon is solely for a finding of a
breach of the law. No further action is asked of the Court or can be
added. Normally when the Court pronounces a judicial condem-
nation there is room for the application of Article 94 of the Charter.
That is not the case here. Normally under the International Trustee-
ship System such a finding, if the Court were competent to make
it, might lead the General Assembly to do whatever it thought

23
35 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

useful or desirable in the light of the judgment pronounced as
between a Member of the United Nations and an Administering
Authority for the territory in question. In the present case, however,
the General Assembly is no longer competent pursuant to the
termination of the Trusteeship as a result of resolution 1608 (XV).

Nevertheless, it may be contended that if during the life of the
Trusteeship the Trustee was responsible for some act in violation
of the terms of the Trusteeship Agreement which resulted in
damage to another Member of the United Nations or to one of its
nationals, a claim for reparation would not be liquidated by the
termination of the Trust. Of course Article 19 of the Agreement
which provided for the jurisdiction of the Court in the cases which
it covered, was terminated with all other Articles of the Agreement,
so that after 1 June 19617 it could not be invoked as a basis for the
Court’s jurisdiction. The Application in the instant case was filed
before 1 June 1961 but it does not include, and the Applicant
has expressly stated that it does not make, any claim for reparation.

The Court is aware of the fact that the arguments of both Parties
made frequent references to the Judgment of the Court of 21 Decem-
ber 1962 in the South West Africa cases. The arguments dealt with
the question whether conclusions arrived at in the consideration
of the Mandates System under the League of Nations were appli-
cable to the Trusteeship System under the United Nations, and
whether, and if so to what extent, Article 19 of the Trusteeship
Agreement of 1946 for the Cameroons was to be given in certain
respects an interpretation similar to that given to Article 7 of the
Mandate for South West Africa.

The Court does not find it necessary to pronounce an opinion on
these points which, in so far as concerns the operation or adminis-
tration of the Trusteeship for the Northern Cameroons, can have
only an academic interest since that Trusteeship is no longer in
existence, and no determination reached by the Court could be
given effect to by the former Administering Authority.

Nevertheless, for the purpose of testing certain contentions in
this case, the Court will consider what conclusions would be reached
if it were common ground that Article 19 of the Trusteeship Agree-
ment of 13 December 1946 for the Cameroons under British Adminis-
tration was designed to provide a form of judicial protection in
the particular interest of the inhabitants of the territory and
in the general interest in the successful functioning of the Inter-
national Trusteeship System; that this judicial protection was pro-
vided and existed side by side with the various provisions for adminis-
trative supervision and control through the Trusteeship Council, its
visiting missions, hearing of petitioners, and action by the General
Assembly; that any Member of the United Nations had a right to

24
36 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

invoke this judicial protection and specifically that the Republic of
Cameroon had the right to invoke it by filing an application in this
Court. It would then follow that in filing its Application on 30 May
1961, the Republic of Cameroon exercised a procedural right which
appertained to it—a procedural right which was to be exercised
in the general interest, whatever may have been the material
individual interest of the Republic of Cameroon. But within two
days after the filing of the Application the substantive interest
which that procedural right would have protected, disappeared
with the termination of the Trusteeship Agreement with respect
to the Northern Cameroons. After 1 June 1961 there was no “‘trust
territory” and no inhabitants for whose protection the trust
functions could be exercised. It must be assumed that the General
Assembly was mindful of the general interest when, acting with-
in its competence, it decided on the termination of the Trust
with respect to the Northern Cameroons and the joinder of the
Northern Cameroons to the Federation of Nigeria. Thereafter, and
as a result of this decision of the General Assembly, the whole
system of administrative supervision came to an end. Thereafter
the United Nations could not, under the authority of Article 87 of
the Charter, send into the Territory a visiting mission to report
on prevailing conditions. The Trusteeship Council could no longer
examine petitions from inhabitants of the Territory, as indeed it
decided at its 1178th meeting on Ir January 1962. The General
Assembly could no longer make recommendations based upon its
functions under Chapters XII and XIII of the Charter.

The Court cannot agree that under these circumstances the
judicial protection claimed by the Applicant to have existed
under the Trusteeship System, would have alone survived when
all of the concomitant elements to which it was related had dis-
appeared. Accordingly, the Republic of Cameroon would not have
had a right after 1 June 1961, when the Trusteeship Agreement
was terminated and the Trust itself came to an end, to ask the
Court to adjudicate at this stage upon questions affecting the rights
of the inhabitants of the former Trust Territory and the general
interest in the successful functioning of the Trusteeship System.

7
* co

Throughout these proceedings the contention of the Republic of
Cameroon has been that all it seeks is a declaratory judgment of
the Court that prior to the termination of the Trusteeship Agree-
ment with respect to the Northern Cameroons, the United Kingdom
had breached the provisions of the Agreement, and that, if its
Application were admissible and the Court had jurisdiction to
proceed to the merits, such a declaratory judgment is not only
one the Court could make but one that it should make.

25
37 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

That the Court may, in an appropriate case, make a declaratory
judgment is indisputable. The Court has, however, already indicated
that even if, when seised of an Application, the Court finds that it
has jurisdiction, it is not obliged to exercise it in all cases. If
the Court is satisfied, whatever the nature of the relief claimed,
that to adjudicate on the merits of an Application would be
inconsistent with its judicial function, it should refuse to do so.

Moreover the Court observes that if in a declaratory judgment
it expounds a rule of customary law or interprets a treaty which
remains in force, its judgment has a continuing applicability. But
in this case there is a dispute about the interpretation and appli-
cation of a treaty—the Trusteeship Agreement—which has now
been terminated, is no longer in force, and there can be no oppor-
tunity for a future act of interpretation or application of that
treaty in accordance with any judgment the Court might render.

In its Interpretation of Judgments Nos. 7 and 8 (the Chorzdw
Factory ) (P.C.1.J., Series A, No. 13, p. 20) the Court said:

“The Court’s Judgment No. 7 is in the nature of a declaratory
judgment, the intention of which is to ensure recognition of a
situation at law, once and for all and with binding force as between
the Parties; so that the legal position thus established cannot
again be called in question in so far as the legal effects ensuing
therefrom are concerned.”’

The Applicant, however, seeks to minimize the importance of
the forward reach of a judgment of the Court. It has maintained
that it is seeking merely a statement of the law which would
“constitute a vital pronouncement for the people of Cameroon”.
It has indeed asked the Court not to consider the aftermath of its
judgment and in this connection it has cited the judgment of the
Court in the Haya de la Torre case, quoted above. But there is a
difference between the Court’s considering the manner of com-
pliance with its Judgment, or the likelihood of compliance, and,
on the other hand, considering whether the judgment, if rendered,
would be susceptible of any compliance or execution whatever,
at any time in the future.

As the Court said in the Haya de la Torve case, it cannot concern
itself with the choice among various practical steps which a State
may take to comply with a judgment. It may also be agreed, as
Counsel for the Applicant suggested, that after a judgment is
rendered, the use which the successful party makes of the judgment
is a matter which lies on the political and not on the judicial plane.
But it is not the function of a court merely to provide a basis for
political action if no question of actual legal rights is involved.
Whenever the Court adjudicates on the merits of a dispute, one or
the other party, or both parties, as a factual matter, are ina position
to take some retroactive or prospective action or avoidance of

26
38 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

action, which would constitute a compliance with the Court’s
judgment or a defiance thereof. That is not the situation here.

*
* *

The Court must discharge the duty to which it has already called
attention—the duty to safeguard the judicial function. Whether or
not at the moment the Application was filed there was jurisdiction
in the Court to adjudicate upon the dispute submitted to it, circum-
stances that have since arisen render any adjudication devoid of
purpose. Under these conditions, for the Court to proceed further
in the case would not, in its opinion, be a proper discharge of its
duties.

The answer to the question whether the judicial function is
engaged may, in certain cases where the issue is raised, need to wait
upon an examination of the merits. In the present case, however,
it is already evident that it cannot be engaged. No purpose ac-
cordingly would be served by undertaking an examination of the
merits in the case for the purpose of reaching a decision which,
in the light of the circumstances to which the Court has already
called attention, ineluctably must be made.

*
* *

For the reasons which it has given, the Court has not felt called
upon to pass expressly upon the several submissions of the Respond-
ent, in the form in which they have been cast. The Court finds that
the proper limits of its judicial function do not permit it to entertain
the claims submitted to it in the Application of which it has been
seised, with a view to a decision having the authority of res judicata
between the Republic of Cameroon and the United Kingdom. Any
judgment which the Court might pronounce would be without
object.

For these reasons,
THE Court,
by ten votes to five,

finds that it cannot adjudicate upon the merits of the claim
of the Federal Republic of Cameroon.

Done in English and in French, the English text being authorita-
tive, at the Peace Palace, The Hague, this second day of December,
one thousand nine hundred and sixty-three, in three copies, one

27
39 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

of which will be placed in the archives of the Court and the others
transmitted to the Government of the Federal Republic of Cam-
eroon and to the Government of the United Kingdom of Great Britain
and Northern Ireland, respectively.

(Signed) B. WiNIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.

Judge SprropouLos makes the following declaration:

I do not share the view of the Court. I consider that the Appli-
cation of the Republic of Cameroon is admissible and that the Court
has jurisdiction to examine the merits of the dispute of which it is
seised.

Judge KorETSKY makes the following declaration:

I cannot agree with the Judgment of the Court, as it has been
reached without observance of relevant rules and principles laid
down in the Rules of Court.

The Judgment was adopted in the stage of an examination of a
preliminary objection, which delimits itself quite precisely from the
stage of an examination of the merits of an Application. The Court
passed by the question of its jurisdiction and turned to the question
of the inadmissibility of the claims of the Republic of Cameroon.

If the question of inadmissibility is raised, not on the ground
of non-observance of the purely formal requirements of the Rules,
e.g. non-observance of Article 32 (2) of the Rules, but in respect
of the substance of the Application (ratione materiae), then the Court
should first decide on its jurisdiction and subsequently consider the
plea of inadmissibility. This is a broadly accepted rule. I venture to
cite, from among many authoritative opinions, the statement of
Judge Sir Percy Spender in his Separate Opinion in the Interhandel
case (1.C.J. Reports 1959, p. 54) that the Court was obliged first
to satisfy itself that it has jurisdiction and then to treat a plea to
the admissibility of the Application. The same was said by Judge
Sir Hersch Lauterpacht in his Dissenting Opinion (#bid., p. 100)
“that according to the established practice of the Court preliminary
objections must be examined—and rejected—before the plea of
admissibility is examined”.

28
40 NORTHERN CAMEROONS (JUDGMENT OF 2 XII 63)

But the Court has said in this case, without dealing with the
question of its jurisdiction, that a judgment on the claims of the
Republic of Cameroon “would be without object”—that is, the
Court has appraised Cameroon’s claims on their merits. Such an
appraisal could only be made at a later stage in the proceedings
(on the merits), and by such an appraisal the Court substituted for
the stage of deciding on preliminary objections to jurisdiction the
stage of deciding the case on its merits.

One cannot regard rules of procedure as being simply technical.
They determine not only a way of proceeding but procedural rights
of parties as well. Their strict observance in the International Court
of Justice, one might say, is even more important than in national
courts. The Court may not change them en passant in deciding a
given case. A revision of the Rules of Court should be effected
(if necessary) in an orderly manner and, in any case, the changed
rules should be known to parties beforehand.

Thus the Court, in accordance with the Rules of Court, ought
first to have decided whether it had—or had not—jurisdiction in
this case without prejudging its future decision in this case on the
merits and then, observing the Rules of Court, to have passed to a
further stage of the proceedings connected with the examination of
the claims of the Republic of Cameroon on their merits.

Judge Jessup makes the following declaration:

In view of the reasoning in the Judgment of the Court, with
which I entirely agree, I do not find it necessary to explain why I
believe that, if it were necessary to pass upon the jurisdictional
issues which have been raised, the reasoning in pages 422 to 436 of
my Separate Opinion in the South West Africa cases (I.C. J. Reports
1962, p. 319) would be equally valid here.

Judges WELLINGTON Koo, Sir Percy SPENDER, Sir Gerald Fitz-
MAURICE and MORELLI append to the Judgment of the Court
statements of their Separate Opinions.

Judges BADAWI and BusTAMANTE Y RIVERO and Judge ad hoc
BEB Aa Don append to the Judgment of the Court statements of
their Dissenting Opinions.

(Initralled) B. W.
(Initialled) G.-C.


                                                                             340

             DÉCLARATION DE M. LE JUGE IWASAWA

[Traduction]

   Droit des peuples à l’autodétermination — Expression libre et authentique de la
volonté du peuple concerné — Principe de l’intégrité territoriale — Pouvoir
discrétionnaire de la Cour de décider s’il échet de donner un avis consultatif —
Principe du consentement de l’Etat au règlement judiciaire.

   1. Je souscris aux conclusions tirées par la Cour dans le dispositif du
présent avis consultatif. Etant donné que certains aspects du raisonne-
ment suivi par la Cour pour arriver à ces conclusions ne sont peut-être
pas suﬃsamment clairs, j’aimerais proposer ce que je crois comprendre de
son raisonnement. J’en proﬁte pour préciser les raisons pour lesquelles
j’appuie ces conclusions.
   2. La Cour est l’organe judiciaire principal des Nations Unies. Il est de
jurisprudence constante que « [l]’avis est donné par la Cour non aux Etats,
mais à l’organe habilité pour le lui demander ; la réponse constitue une
participation de la Cour, elle-même « organe des Nations Unies », à l’ac-
tion de l’Organisation et, en principe, elle ne devrait pas être refusée ».
(Interprétation des traités de paix conclus avec la Bulgarie, la Hongrie et la
Roumanie, première phase, avis consultatif, C.I.J. Recueil 1950, p. 71), et
« seules des « raisons décisives » pourraient l’inciter [à refuser de donner un
avis consultatif]… Aucun refus, fondé sur le pouvoir discrétionnaire de la
Cour, de donner suite à une demande d’avis consultatif n’a été enregistré
dans l’histoire de la présente Cour. » (Licéité de la menace ou de l’emploi
d’armes nucléaires, avis consultatif, C.I.J. Recueil 1996 (I), p. 235, par. 14.)
   3. En l’espèce, la Cour signale que
     « l’avis est demandé sur la question de la décolonisation, qui intéresse
     particulièrement les Nations Unies. Les interrogations soulevées par
     la demande s’inscrivent dans le cadre plus large de la décolonisation,
     et notamment du rôle de l’Assemblée générale en la matière, un cadre
     dont elles ne peuvent être dissociées. » (Voir le paragraphe 88 du pré-
     sent avis consultatif.)
La Cour conclut donc que le prononcé de l’avis sollicité aurait pour eﬀet
de contourner le principe du consentement de l’Etat au règlement judi-
ciaire de son diﬀérend avec un autre Etat (ibid., par. 90).
   4. La dynamique de la décolonisation est le droit des peuples à l’auto-
détermination, dont l’un des éléments essentiels est l’expression libre et
authentique de la volonté du peuple concerné. La Cour a insisté sur ce
point en 1975, en déclarant que « l’application du droit à l’autodétermina-
tion suppose l’expression libre et authentique de la volonté des peuples
intéressés » (Sahara occidental, avis consultatif, C.I.J. Recueil 1975, p. 32,
par. 55).

                                                                              249

                 séparation des chagos (décl. iwasawa)                      341

   5. En réponse à la question a), la Cour conclut que le processus de
décolonisation de Maurice n’a pas été validement mené à bien en 1968
(voir le paragraphe 174 du présent avis consultatif). D’après ce que j’en
comprends, la Cour tire cette conclusion pour deux raisons : première-
ment, le détachement de l’archipel des Chagos n’a pas été fondé sur l’ex-
pression libre et authentique de la volonté du peuple concerné (par. 172) ;
et, en second lieu, ce détachement était contraire au principe de l’intégrité
territoriale (par. 173).
   6. Si l’absence d’expression libre et authentique de la volonté du peuple
concerné est en soi un motif justiﬁant la conclusion de la Cour (par. 172),
elle constitue également le fondement de la conclusion de la Cour sur le
principe de l’intégrité territoriale. La Cour conﬁrme que tout détache-
ment par la puissance administrante d’une partie d’un territoire non auto-
nome, « à moins d’être fondé sur la volonté librement exprimée et
authentique du peuple du territoire concerné », est contraire au droit à
l’autodétermination (par. 160). Le principe de l’intégrité territoriale s’ap-
plique au territoire non autonome formant une unité territoriale. En l’es-
pèce, la Cour conclut que, au moment de son détachement de Maurice en
1965, l’archipel des Chagos faisait partie intégrante de ce territoire non
autonome (par. 170). Il peut arriver qu’une partie d’un territoire non
autonome soit scindée ou qu’un territoire non autonome soit divisé en
plusieurs Etats. La séparation ou la division d’un territoire non autonome
n’est pas contraire au principe de l’intégrité territoriale dès lors qu’elle est
fondée sur la volonté libre et authentique du peuple concerné. Le para-
graphe 173 de l’avis suggère que, dans le cas de Maurice, le détachement
de l’archipel des Chagos était contraire au principe d’intégrité territoriale
parce qu’il n’était pas fondé sur l’expression libre et authentique de la
volonté du peuple concerné.
   7. En réponse à la question b), la Cour rappelle les obligations du
Royaume-Uni et de tous les Etats Membres selon le droit international
applicable à la décolonisation.
   8. Du fait de son détachement de Maurice, l’archipel des Chagos a été
incorporé dans une nouvelle colonie du Royaume-Uni connue sous le
nom de Territoire britannique de l’océan Indien (BIOT). Ainsi, l’archipel
des Chagos doit être considéré comme un territoire non autonome au
sens du chapitre XI (« Déclaration concernant les territoires non auto-
nomes ») de la Charte des Nations Unies, même si le Royaume-Uni n’a
pas fourni de renseignements conformément à l’article 73 e) de la Charte.
En tant que puissance administrante, le Royaume-Uni a des obligations
internationales à l’égard de l’archipel des Chagos, notamment celle de res-
pecter le droit des peuples à l’autodétermination, ainsi que les obligations
découlant du chapitre XI de la Charte. En l’espèce, il découle de ces obli-
gations que le Royaume-Uni est tenu, dans les plus brefs délais, de mettre
ﬁn à son administration de l’archipel des Chagos.
   9. Le respect du droit à l’autodétermination étant une obligation erga
omnes, tous les Etats ont un intérêt juridique à ce que ce droit soit protégé
(voir Timor oriental (Portugal c. Australie), arrêt, C.I.J. Recueil 1995,

                                                                            250

                séparation des chagos (décl. iwasawa)                     342

p. 102, par. 29 ; Conséquences juridiques de l’édification d’un mur dans le
territoire palestinien occupé, avis consultatif, C.I.J. Recueil 2004 (I),
p. 172, par. 88), tous les Etats Membres ont le devoir de favoriser la réa-
lisation de ce principe et d’aider l’Organisation des Nations Unies à
s’acquitter de ses responsabilités en ce qui concerne l’application de ce
principe (Déclaration relative aux principes du droit international tou-
chant les relations amicales et la coopération entre les Etats conformé-
ment à la Charte des Nations Unies, résolution de l’Assemblée
générale 2625 (XXV)). En l’espèce, il découle de cette obligation que tous
les Etats Membres doivent coopérer avec l’Organisation des Nations Unies
pour assurer le parachèvement de la décolonisation de Maurice (voir le
paragraphe 180 du présent avis consultatif).
   10. Dans son avis consultatif, la Cour déclare que la décolonisation de
Maurice doit être achevée « dans le respect du droit des peuples à l’auto-
détermination » (par. 178), sans plus de précisions. Elle souligne que « [l]es
modalités nécessaires pour assurer le parachèvement de la décolonisation
de Maurice relèvent de l’Assemblée générale des Nations Unies,
dans l’exercice de ses fonctions en la matière » (par. 179). Ainsi, la Cour
ne détermine pas le statut juridique éventuel de l’archipel des Chagos et
n’indique pas non plus les modalités précises selon lesquelles le droit à
l’autodétermination devrait être mis en œuvre dans le cas de l’archipel des
Chagos. La Cour donne son avis sur les questions posées par l’Assem-
blée générale dans la mesure nécessaire pour aider celle-ci à s’acquitter de
ses fonctions en matière de décolonisation. Donner un avis de cette
manière n’équivaut pas à trancher un diﬀérend territorial entre le
Royaume-Uni et Maurice. Par ces motifs, je conviens que le prononcé de
l’avis sollicité n’aurait pas pour eﬀet de contourner le principe du consen-
tement de l’Etat au règlement judiciaire de son diﬀérend avec un autre
Etat (par. 90).

                                                 (Signé) Yuji Iwasawa.

                                                                          251


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE AVENA ET AUTRES
RESSORTISSANTS MEXICAINS

(MEXIQUE c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE DU 5 FÉVRIER 2003

2003

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING AVENA AND OTHER
MEXICAN NATIONALS

(MEXICO v. UNITED STATES OF AMERICA)

ORDER OF 5 FEBRUARY 2003
Mode officiel de citation:

Avena et autres ressortissants mexicains
(Mexique c. Etats-Unis d’ Amérique), ordonnance
du 5 février 2003, C.I.J. Recueil 2003, p. 96

Official citation:

Avena and Other Mexican Nationals
(Mexico v. United States of America), Order
of 5 February 2003, I C.J. Reports 2003, p. 96

N° de vente:

Sales number

ISSN 0074-4441
ISBN 92-1-070971-3

864

5 FÉVRIER 2003

ORDONNANCE

AVENA ET AUTRES RESSORTISSANTS MEXICAINS
(MEXIQUE c. ÉTATS-UNIS D’AMERIQUE)

AVENA AND OTHER MEXICAN NATIONALS
{MEXICO v. UNITED STATES OF AMERICA)

5 FEBRUARY 2003

ORDER
96

COUR INTERNATIONALE DE JUSTICE

2003 ANNÉE 2003
5 février
Rôle général
n° 128 5 février 2003

AFFAIRE AVENA ET AUTRES
RESSORTISSANTS MEXICAINS

(MEXIQUE c. ÉTATS-UNIS D'AMÉRIQUE)

ORDONNANCE

Présents: M. GUILLAUME, président; M. SH, vice-président; MM. Opa,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESH-
CHETIN, M7 Hiccins, MM. PARRA-ARANGUREN, KOOIMANS,
REZEK, AL-KHASAWNEH, BUERGENTHAL, ELARABY, juges;
M. CouvreEvr, greffier.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,

Vu Particle 48 du Statut de la Cour et les articles 44 et 45, para-
graphe 1, de son Règlement,

Vu la requête enregistrée au Greffe de la Cour le 9 janvier 2003, par
laquelle les Etats-Unis du Mexique ont introduit une instance contre les
Etats-Unis d'Amérique en raison de «violations de la convention de
Vienne sur les relations consulaires» du 24 avril 1963 qui auraient été
commises par les Etats-Unis d'Amérique,

Vu la demande en indication de mesures conservatoires présentée par
les Etats-Unis du Mexique le 9 janvier 2003,

Vu l'ordonnance du 5 février 2003 par laquelle la Cour a indiqué cer-
taines mesures conservatoires ;

Considérant que la Cour, dans cette ordonnance, a déclaré qu’«il est
97 AVENA ET AUTRES (ORDONNANCE 5 II 03)

manifestement de l'intérêt des deux Parties de voir définitivement déter-
minés leurs droits et obligations respectifs aussitôt que possible» et que
«dès lors il convient que la Cour, avec la coopération des Parties, veille à
parvenir à un arrêt définitif dans les meilleurs délais»;

Considérant qu’aux fins de se renseigner auprès des Parties le président
de la Cour a reçu leurs représentants le 5 février 2003;

Compte tenu des vues des Parties,

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite:

Pour le mémoire des Etats-Unis du Mexique, le 6 juin 2003;

Pour le contre-mémoire des Etats-Unis d'Amérique, le 6 octobre 2003;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le cinq février deux mille trois, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement des Etats-Unis du Mexique et
au Gouvernement des Etats-Unis d'Amérique.

Le président,
{ Signé) Gilbert GUILLAUME.

Le greffier,
(Signé) Philippe COUVREUR.


488

SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

The operative part of the Judgment should only reply to the final submissions
of the Parties.

1. Ihave voted for the operative part of the Judgment, with the excep-
tion of point V (C), but my favourable vote does not mean that I share
each and every part of the reasoning followed by the Court in reaching its
conclusions.

2. I have voted against point V (C) of the operative part of the Judg-
ment where the Court:

“Takes note of the commitment undertaken by the Republic of
Cameroon at the hearings that, ‘faithful to its traditional policy of
hospitality and tolerance’, it ‘will continue to afford protection to
Nigerians living in the [Bakassi] Peninsula and in the Lake Chad

299

area .

3. The reasons for my dissent are the following.
4. Very recently, on 14 February 2002, the Court stated:

“The Court would recall the well-established principle that ‘it is
the duty of the Court not only to reply to the questions as stated in
the final submissions of the parties, but also to abstain from deciding
points not included in those submissions’ (Asylum, Judgment, I CJ.
Reports 1950, p. 402). While the Court is thus not entitled to decide
upon questions not asked of it, the non ultra petita rule nonetheless
cannot preclude the Court from addressing certain legal points in its
reasoning.” (Arrest Warrant of 11 April 2000 (Democratic Republic
of Congo v. Belgium), Judgment, 1 C.J. Reports 2002, pp. 18-19,
para. 43.)

5. Neither Cameroon nor Nigeria has requested the Court in its sub-
missions to take note of the commitment undertaken by Cameroon at the
hearings that “it will continue to afford protection to Nigerians living in
the [Bakassi] Peninsula”. Therefore, in my opinion, the Court had to
abstain from taking note of such commitment in the operative part of the
Judgment, even though the Court is entitled to address it in its reasoning,
as it did in paragraph 317 of the Judgment.

(Signed) Gonzalo PARRA-ARANGUREN.

189