392

DISSENTING OPINION OF JUDGE AJIBOLA

Introduction: Why the case concerning Right of Passage over Indian Terri-
tory should be revisited.

First preliminary objection — Why the Court should not reject it — Ques-
tions of reciprocity — Need to re-examine the requirements of Article 36 (2)
and (4) of the Statute — Contractual concept of good faith — Element of sur-
prise and “unfriendly” act — Analysis and comparison of the Right of Passage
over Indian Territory case vis-d-vis this case — Differences and issue of
precedent —- Other compelling considerations.

Third preliminary objection — Reason for disagreement with the decision of
the Court — Competence of Lake Chad Basin Commission — Whether LCBC
is a regional agency within the meaning of Article 52 of the Charter — Whether
LCBC is a tribunal within the meaning of Article 95 of the Charter.

Fourth preliminary objection and reason for voting in favour.

Fifth preliminary objection and reason for voting against the decision of the
majority Members of the Court — Failure by the Court to address this objec-
tion as framed by Nigeria.

Sixth preliminary objection and reason for voting against the decision of the
Court.

Seventh preliminary objection and reason for voting in favour of upholding
the second part of Nigeria's objection — Application and interpretation of
Articles 74 and 83 of the United Nations Convention on the Law of the Sea.

Eighth preliminary objection and reason for voting against the decision of the
Court.

Reasons for voting in favour of the decision of the majority Members of the
Court on the second preliminary objection and the first part of the seventh pre-
liminary objection.

Conclusion: The need for the Parties to come to Court by way of special
agreement — Need for caution.

INTRODUCTION

The first preliminary objection of Nigeria, filed on 17 December 1995
in this case, gives the Court another opportunity once more to examine
critically its case-law on the provision in Article 36 (2) of the Statute, and
more particularly Article 36 (4), which deals with the question of the
Optional Clause as it relates to the jurisdiction of the Court. Unfortu-
nately, the Court decided to follow its case-law in the Right of Passage
over Indian Territory case of 1957, which I strongly disagree with; hence
my basic reason for appending this dissenting opinion to the Judgment of
the Court. But in addition to disagreeing with the Court with respect to
its decision on the first preliminary objection of Nigeria, in which this

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case-law — decided over 40 years ago — was reaffirmed, I also express
my disagreement with the decision reached by the Court on six other pre-
liminary objections raised by Nigeria.

J. THE First PRELIMINARY OBJECTION

The first preliminary objection of Nigeria is the most important objec-
tion addressed to the Court, and was extensively argued by both Parties.
In fact, if the objection had been accepted by the Court, it would have
disposed of the entirety of the Applications of Cameroon, filed on
29 March 1994 and 6 June 1994 respectively, and in my view the Court
ought to have dismissed the Applications on the basis of this objection.

It appears to me that this first preliminary objection is fundamental
and that it goes to the very root of Cameroon’s Application. The objec-
tion essentially concerns the interpretation of the requirements of para-
graphs 2 and 4 of Article 36 of the Statute of the Court. In order to reach
a decision on whether this preliminary objection should be rejected or
upheld, some relevant issues raised by Nigeria and Cameroon in their
respective arguments and presentations require examination.

Among these issues are:

1. Reciprocity or coincidence as expressed in Article 36 (2) in the
phrase “in relation to any other State accepting the same obligation”,
and the use of the word “reciprocity” in the Optional Clause Declaration
of Nigeria.

2. The question of good faith and the element of surprise.

3. The requirements contained in Article 36 (4) of the Statute of the
Court, namely:

“Such declarations shall be deposited with the Secretary-General
of the United Nations, who shall transmit copies thereof to the
parties to the Statute and to the Registrar of the Court.” (Emphasis
added.)

4. The Judgment in the case concerning Right of Passage over Indian
Territory (1 C.J. Reports 1957, p. 125).

A. Reciprocity

The argument of Nigeria is that Cameroon, in lodging

“its Application on 29 March, acted prematurely and so failed to
satisfy the requirement of reciprocity as a condition to be met before
the jurisdiction of the Court can be invoked against Nigeria”
(CR 98/1, p. 29).

Cameroon lodged its Optional Clause Declaration on 3 March 1994
and filed its Application three weeks thereafter (.c., on 29 March

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1994), whereas Nigeria had accepted the Court’s jurisdiction under
Article 36 (2) of the Statute as far back as 14 August 1965.

The argument of Cameroon is that this objection raised by Nigeria is
“untenable”. Cameroon argues that:

“According to international law pertinent in the matter as well as
the firm jurisprudence of this Court, a State party to the system of
the Optional Clause may bring a case against another State party to
that system immediately after the deposit of its declaration of accept-
ance with the Secretary-General of the United Nations.” (CR 98/3,
p. 47, para. 54.)

It should be noted, in this preliminary objection, that there are two
aspects with regard to the use and application of the word “reciprocity”:
the “statutory reciprocity” embodied in Article 36 (2) of the Statute of
the Court (i.e., “in relation to any other State accepting the same obliga-
tion”) and the word “reciprocity” as used by Nigeria in its Optional
Clause Declaration, wherein Nigeria recognizes “as compulsory ipso
facto and without special agreement, in relation to any other State
accepting the same obligation, that is to say, on the sole condition of reci-
procity . . .” (emphasis added). Therefore, in order for Cameroon to
invoke the jurisdiction of the Court against Nigeria it must clear the two
hurdles: (a) by satisfying the request for “reciprocity” indicated by
Nigeria and also (4) by satisfying the “statutory reciprocity” under
Article 36 (2) of the Statute.

A careful examination of Nigeria’s Optional Clause Declaration has
been the subject of arguments by counsel on both sides and each has
given different interpretations to the use of the word “reciprocity”.

However, if words are to be given their ordinary meaning, Nigeria’s
Optional Clause Declaration contains a clear expression of reciprocity in
terms of coincidence, when it states, inter alia, “in relation to any other
State accepting the same obligation”, and another requirement of reci-
procity when it declares “on the sole condition of reciprocity”. The
former requirement is worded exactly as in Article 36 (2) of the Statute of
the Court. It is therefore not enough for Cameroon to have attempted to
satisfy the statutory requirement of reciprocity by filing its own Optional
Clause Declaration as Nigeria had done in 1965; it must also have
ensured that the same was done in good faith and not surreptitiously.

What is surreptitious about Cameroon’s action? It is its failure to
notify Nigeria formally (perhaps by a diplomatic note) of its intention to
file this case before the Court. After all, both Parties are neighbours.
There are arguments on both sides that somehow Nigeria knew about the
proposed action of Cameroon, that it was announced in the media and
discussed in some other forums like meetings of the Organization of

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African Unity. This appears to me to beg the question. Nigeria ought to
have been formally notified; in my view, this is an apparent prerequisite
which Cameroon cannot ignore and which will later be elaborated upon.

B. The Requirement of Article 36 (4) of the Statute of the Court

Article 36 (4) makes it mandatory for any State filing its Declaration to
deposit the same with the Secretary-General of the United Nations. The
Secretary-General shall in turn transmit copies thereof to the parties to
the Statute and to the Court’s Registrar. This paragraph was added to
Article 36 during the deliberations stage in Committee IV/1 at the San
Francisco Conference.

Shabtai Rosenne, in The Law and Practice of the International Court,
1920-1996, referred to the commentary of Hudson on this particular
point. Hudson considered, “that the insertion of this provision into the
Statute was a ‘detail of housekeeping but one which, in view of uncer-
tainties which had arisen, might prove to be useful’” (Vol. II, p. 753).
Neither Party denies that such a declaration falls within the provision in
Article 102 of the Charter of the United Nations, which also requires the
registration of such documents with the Secretariat. The issue here is not
that Cameroon failed to register the Optional Clause Declaration with
the Secretary-General but that the Declaration was not transmitted to
Nigeria until nearly one year later. What then is the consequence of this
lapse, having regard to the fact that Nigeria demands reciprocity? Of
course, Nigeria’s Optional Clause Declaration had since 1965 been com-
municated to all Members of the United Nations, including Cameroon,
and had been published since then. Reciprocity in this context requires
that Nigeria should have been informed about Cameroon’s Optional
Clause Declaration before its Application was filed with the Court, to
avoid being surprised and to be assured that Cameroon had acted in
good faith.

C. The Contractual Concept

In its Judgment in the Right of Passage case in 1957, the Court
observed that by merely depositing its declaration of acceptance with the
Secretary-General of the United Nations, the accepting State automati-
cally becomes a party to the Optional Clause system in relation to any
other declarant State. The Court employed the word “contractual” and
stated that: “The contractual relation between the Parties and the com-
pulsory jurisdiction of the Court resulting therefrom are established . . .”
(Right of Passage over Indian Territory, Preliminary Objections, Judg-
ment, .C_J. Reports 1957, p. 146.) If, therefore, such a deposit of a dec-
laration of acceptance is considered to be an offer to States parties to the

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Statute which have not yet deposited their declarations, the important
question is when (ratione personae and ratione temporis) can it be said
that such an offer has been accepted by a new declarant State? The deci-
sion of the Court in 1957 and in all other similar cases, like the Temple of
Preah Vihear case, is that such an offer is deemed to have been accepted
on the date of the deposit of the new acceptance declaration with the
Secretary-General of the United Nations.
The Court stated in this case that:

“The only formality required is the deposit of the acceptance with
the Secretary-General of the United Nations under paragraph 4 of
Article 36 of the Statute.” (Temple of Preah Vihear, Preliminary
Objections, Judgment, I.C.J. Reports 1961, p. 31.)

Although the subject of formation of contracts by correspondence varies
from one domestic legal system to another, it is nevertheless indisputable
that an offer must be communicated to the offeree before a contract can
be considered binding. Judge Badawi, in his dissenting opinion in the
Right of Passage case, confirmed this view when he observed:

“Whatever that moment may be, the position in the present case is
that, in any event, and whatever criterion or moment may be adopted
with regard to the formation of a contract by correspondence, it was
prior to that moment. The present case is similar to one in which
there is an offer which has not yet been dispatched.” (Right of Pas-
sage over Indian Territory, Preliminary Objections, Judgment, I. C.J.
Reports 1957, p. 157.)

It is difficult to perceive of a situation whereby a contract is considered
as binding on a party when that party is unaware of the content and
terms of that contract. There is therefore a cardinal prerequisite condi-
tion that the other party be notified that its offer had been accepted. This
is the obvious omission in this case. Nigeria was not informed about
Cameroon’s Declaration before it (Cameroon) filed its Application before
the Court. Further, in his dissenting opinion, Judge Badawi concluded
that: “The offer by Portugal, contained in its Declaration and addressed
to the other States, had not been accepted by India or, indeed, commu-
nicated to India.” (Jbid, p. 156.)

When the Court was called upon by India in 1957 to decide on its pre-
liminary objections, two vital issues of substance (and not of procedure)
were invoked in interpreting the provision in Article 36 (4); both condi-
tions are patently mandatory because in both cases the word used in the
Article is “shall”. On the first condition, the Court rightly decided that
the declaration must be deposited by the declarant State with the Secre-
tary-General of the United Nations. But the Court failed to require com-
pliance with the second prerequisite condition, that is to “transmit copies

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thereof to the parties to the Statute and to the Registrar of the Court”.
This also is a condition precedent which the declarant State must comply
with before it can validly invoke the jurisdiction of this Court. There
is no other ordinary meaning or interpretation (in accordance with
Article 31 of the 1969 Vienna Convention on the Law of Treaties) that
would ensure that both conditions are given the same interpretation and
meaning. Such a transmission is the only valid and binding means of offi-
cial notification to other States parties, and in this case to Nigeria. To
enable Cameroon to file a proper application before the Court there is
essentially the need for Nigeria to have been notified of Cameroon’s
Declaration, but which was not done until eleven-and-a-half months there-
after, by which time Cameroon had filed its Application. Regrettably
the Court has consistently followed its 1957 decision for over forty years,
on the basis on this case-law in Right of Passage over Indian Territory.

The reasoning of the Court that the requirement of transmission is
purely procedural was based on the view that to state otherwise could
bring about uncertainty as to the moment when jurisdiction can be
invoked. But all that is required of the declarant State is to ensure from
the Office of the Secretary-General of the United Nations that this condi-
tion of transmission has been met by the Secretariat before filing its
application, just as it should ensure that its instrument of declaration had
been properly deposited with the Secretary-General. A declarant State
which knows that the condition of transmission is a prerequisite, like the
deposit, would ascertain that both conditions have been fulfilled before
filing its application; in my view, the issue of uncertainty can thereby be
disposed of without much waste of time. If the requirement of transmis-
sion is made compulsory, the declarant State would nevertheless comply
with both conditions by making the necessary enquiry with the Secretary-
General of the United Nations.

One other point that could have persuaded the Court in 1957 to decide
that the issue of transmission is merely procedural concerned the nature
of India’s Declaration of Acceptance of 28 February 1940, in which it
accepted the jurisdiction of the Court for a specified period “from today’s
date”. This is the obvious difference between the case on Right of Pas-
sage over Indian Territory and the present case. Nigeria’s Declaration is
based on reciprocity and as such it is essential that it be given due notice
and effect.

D. Good Faith and the Element of Surprise

It is Nigeria’s argument that Cameroon’s Application to the Court
came as a surprise and was perhaps filed in a clandestine manner. Nigeria
further alleges the absence of good faith on the part of Cameroon. Cam-
eroon denies all these accusations and states that Nigeria was informed

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about Cameroon’s intention to bring the action before the Court. Cam-
eroon refers to an earlier meeting where it mentions arbitration as a
means of resolving the dispute.

Since 1957, when the Court decided the case on Right of Passage over
Indian Territory, the doctrine of good faith in international law has
further developed considerably. There is the Friendly Relations Declara-
tion of the General Assembly of 1970 (General Assembly resolution 2625
(XXV)), which enjoins States to fulfil in good faith obligations assumed
by them in accordance with the Charter. Article 26 of the Vienna Con-
vention on the Law of Treaties of 1969 also provides that “every treaty in
force is binding upon the parties to it and must be performed by them in
good faith”. The Charter of the United Nations, in paragraph 2 of its
Article 2, requires that Members shall fulfil in good faith their obligations
under the Charter. The Court has also made reference to the principle of
good faith in much of its case-law. In 1974, in the case concerning
Nuclear Tests (New Zealand v. France), the Court observed that:

“One of the basic principles governing the creation and perform-
ance of legal obligations, whatever their source, is the principle of
good faith. Trust and confidence are inherent in international co-op-
eration, in particular in an age when this co-operation in many fields
is becoming increasingly essential.” (LC J. Reports 1974, p. 473,
para. 49.)

One issue of good faith that is very relevant to this particular prelimi-
nary objection is the case concerning Military and Paramilitary Activi-
ties. In this case, the United States purported to act on 6 April 1984 in
such a way as to modify its 1946 Declaration, which in fact sufficiently
and immediately barred the Application filed by Nicaragua on 9 April
1984. (Nicaragua had filed its Optional Clause Declaration on 24 Sep-
tember 1929.)

In that case, the Court found that there was sufficient basis for its juris-
diction. In its Judgment, the Court observed as follows:

“But the right of immediate termination of declarations with indefi-
nite duration is far from established. It appears from the require-
ments of good faith that they should be treated, by analogy, accord-
ing to the law of treaties, which requires a reasonable time for
withdrawal from or termination of treaties that contain no provision
regarding the duration of their validity. Since Nicaragua has in fact
not manifested any intention to withdraw its own declaration, the
question of what reasonable period of notice would legally be required
does not need to be further examined: it need only be observed that
from 6 to 9 April would not amount to a ‘reasonable time’.” (Mili-
tary and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), Jurisdiction and Admissibility,
Judgment, I C.J. Reports 1984, p. 420; emphasis added.)

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If therefore the Court has moved a step ahead since pronouncing its
Judgment in 1957 in the Right of Passage case by accepting the require-
ment of good faith as a prerequisite for the termination of an Optional
Clause declaration, it stands to reason that it could now move further
and do the same in this case.

It is the view of the Court that the principle of good faith plays an
important role in Optional Clause declarations with regard to reciprocity.

The Court observed further in the same Nicaragua case that:

“In fact, the declarations, even though they are unilateral acts,
establish a series of bilateral engagements with other States accept-
ing the same obligation of compulsory jurisdiction, in which the con-
ditions, reservations and time-limit clauses are taken into considera-
tion. 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 inter-
national relations for respect for good faith and confidence in par-
ticularly unambiguous terms . . ” (Military and Paramilitary Activi-
ties in and against Nicaragua (Nigaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, C.J. Reports
1984, p. 418; emphasis added.)

If, ex hypothesi, Nigeria, bemg aware of the fact that Cameroon was
about to file its Application on 29 March 1994 had withdrawn its
Optional Clause Declaration, say on 26 March 1994, putting Cameroon
in a situation similar to that of Nicaragua, the Court would have decided
that Nigeria did not act in good faith and that such withdrawal would
not invalidate the Application of Cameroon. The Court is now being
asked to deal with “the other side of the coin” and, in my opinion, it
ought to give a “reciprocal judgment” by rejecting the Application of
Cameroon as an application filed mala fide.

It has been strongly canvassed by Cameroon that instituting proceed-
ings before the Court cannot be considered an unfriendly act. However, it
is the practice among States that cases are addressed to the Court when
negotiation and agreement have failed. It is not unusual for States to con-
sider litigation as an unfriendly act especially in the absence of a Special
Agreement. A good example is found in the steps taken by Peru and
Colombia in the Asylum case of 1950, before the Application was
eventually filed by Colombia on 15 October 1949. The “Act of Lima”
agreement signed on 31 August 1949, which permits either of the parties
to file its application before the Court, states in its second paragraph
thus:

“The Plenipotentiaries of Peru and Colombia having been unable
to reach an agreement on the terms in which they might refer the
dispute jointly to the International Court of Justice, agree that pro-

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ceedings before the recognized jurisdiction of the Court may be insti-
tuted on the application of either of the Parties without this being
regarded as an unfriendly act toward the other, or as an act likely to
affect the good relations between the two countries. The Party exer-
cising this right shall, with reasonable advance notice, announce in a
friendly way to the other Party the date on which the application is to
be made.” (Asylum, Judgment, I.C.J. Reports 1950, p. 268; empha-
sis added.)

It is therefore not unusual for a State to consider an application filed with
the Court as “unfriendly” when the same is done without notice from the
applicant or from other expected sources.

E. The Case Concerning Right of Passage over Indian Territory

Two points have to be considered under this heading:

(a) that the present case is easily distinguishable from the Right of Pas-
sage case;

(b) that, even if it is not distinguishable from the Right of Passage case,
the Court ought not to follow that precedent.

(a) The differences

First, it can be clearly observed that the issue of good faith was not
strongly canvassed by India, whereas in Nigeria’s case absence of good
faith on the part of Cameroon was strongly argued on the basis of the
available facts and the law.

Secondly, on 28 February 1940, when India made its Optional Clause
Declaration, it accepted the jurisdiction of the Court for a specified
period “from today’s date” (Right of Passage over Indian Territory, Pre-
liminary Objections, Judgment, I C.J. Reports 1957, p. 146). There is no
such provision in Nigeria’s Declaration; on the contrary it demands reci-
procity from any declarant State.

The issue of reciprocity was not strongly canvassed by India, unlike
Nigeria, and as a result the Court did not put much emphasis on it. The
situation in the present case is different from the situation in the Right of
Passage case, which concerned certain enclaves in India, the right of pas-
sage to which Portugal claimed. In the present case Cameroon is seeking
a determination of all its land and maritime boundaries with Nigeria.
Again in the present case, third States’ rights are involved. In the Lake
Chad area the interests of Chad and Niger are involved, and within the
maritime area the interests of Equatorial Guinea, Sao Tome and Principe,
and Gabon are involved.

(b) The issue of precedent

Asa prelude to his book Precedent in the World Court, Judge Mohamed
Shahabuddeen writes:

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“Decisions of the International Court of Justice are almost as
replete with references to precedent as are decisions of a common
law court. Even though previous decisions are not binding, the Court
relies upon them as authoritative expressions of its views on decided
points of law.” (Emphasis added.)

The principle of stare decisis does not apply in this Court and, that
being so, it has no rule of precedent. Article 59 of the Court’s Statute
expressly states that a decision of the Court is only binding between the
parties and in respect of that particular case. Article 62 of the Statute per-
mits a State which considers that it has an interest of a legal nature which
may be affected by the decision of the Court in a particular case to file a
request to the Court for permission to intervene.

In practice, however, the Court in most cases relies upon and follows
its previous decisions.

While that practice is desirable in order to ensure some degree of cer-
tainty in the jurisprudence of the Court, there are occasions when it is
necessary for the Court, for one reason or the other, not to follow its
previous decisions. The present case is just such a case.

This latter practice is not unknown in the Court and had been employed
in a few cases: in the case concerning Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania the Court declined to follow the strict
rule which it had laid down in the Status of Eastern Carelia case regard-
ing the rendering of an advisory opinion. Similarly, in the Barcelona
Traction case the Court did not follow its decision in the Nottebohm case
on the issue of diplomatic protection.

Of recent, Shabtai Rosenne has taken a keen interest in cases con-
nected with Optional Clause declarations under Article 36 (4) vis-a-vis
the Right of Passage case. He observed in his recent publication, An
International Law Miscellany:

“In the present Court this litigation tactic has been followed in
five cases of high political implication: Nuclear Tests (Australia v.
France) case, the Aegean Sea Continental Shelf case, the Military
and Paramilitary Activities in and against Nicaragua case, and the
two cases Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie.
What is more, in all of these cases the phenomenon of the ‘unwilling
respondent’ (in the first and third, a permanent member of the Secu-
rity Council) was encountered, and in the first two of those cases,
that unwilling respondent refused to have any part in the proceed-
ings, all adding to the difficulties of jurisdiction and admissibility.

The existence of this well-established procedure coupled with the
last five precedents raises serious doubts about the continued

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unchecked application of the doctrine accepted by the Court in the
Right of Passage case. Paragraph 4 was inserted into Article 36 of
the Statute at the San Francisco Conference almost as a matter of
routine, and like any text it is open to more than one interpretation.
Since then, important developments have taken place both as regards
the general law of the depositary of multilateral instruments, formu-
lated for the first time (as stated) in the Vienna Conventions, and in
State practice as exemplified in the cases mentioned.” (P. 92.)

And finally he offered some suggestions, as follows:

“The question can be asked whether what has occurred since the
Right of Passage case does not justify a reconsideration of the doc-
trine of that case should an opportunity to do so present itself. At all
events, it is to be hoped that should occasion arise for a revision of
the Statute, more attention will be paid to the implications of Ar-
ticle 36, paragraph 4, than was given in 1945, and that a method will
be found to protect States which have accepted the jurisdiction
under paragraph 2 from the surprise deposit of a declaration in New
York and the immediate institution of proceedings accompanied by
a request for the indication of interim measures of protection before
the respondent can be (not ‘is’) aware that the declaration has been
deposited; and that the provisions regarding the making of declara-
tions, their modification and their termination and other related
instruments, will be co-ordinated with what is now established law
and practice regarding the exercise of the functions of the depositary
of multilateral treaties and other international instruments.”
(Rosenne, op. cit., pp. 92-93.)

From all that has been said and quoted above, it is clear that the deci-
sion in the case concerning Right of Passage over Indian Territory should
generally be revisited and to regard such case-law as bad law, because the
decision failed to take into proper consideration the second mandatory
condition provided in Article 36 (4) of the Statute of the Court, namely
that States parties “shall” be notified before jurisdiction can be invoked
by any declarant State. Both conditions, of “deposit” and “transmis-
sion”, are mandatory, as set forth in that paragraph 4 of Article 36,
which provision must be complied with by any litigant State that intends
to file its application.

F. Other Compelling Considerations

So many circumstances of this particular case are sufficiently compel-
ling as to persuade the Court to accept the argument of Nigeria, even on
objective grounds. Firstly, Nigeria and Cameroon are neighbours and
will remain so for all time, and it is therefore not in the interests of peace
and good neighbourliness in that region that one Party should be dragged

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to the Court against its wish. The record before the Court is that both
Parties are already involved in the settlement of some of the dispute.
Delimitation and demarcation have been effected in some areas and it
will be in bad faith that the matter is brought to the Court while other
means of settlement of the Parties’ dispute is pending.

Moreover, many cases of delimitation in land and maritime disputes
have been instituted in this Court by way of Special Agreement. A very
recent and successful example is the case concerning the Territorial Dis-
pute (Libyan Arab JamahiriyalChad), which was concluded and judg-
ment delivered on 3 February 1994; by the end of May of that year Libya
had complied with the Judgment of the Court. There are ten other similar
cases: Minquiers and Ecrehos (United KingdomlFrance), I. C.J. Reports
1953, p. 47; Sovereignty over Certain Frontier Land ( Belgiuml Nether-
lands), LC.J. Reports 1959, p. 209; North Sea Continental Shelf (Fed-
eral Republic of Germany! Denmark; Federal Republic of Germany!/Neth-
erlands), I.C.J. Reports 1969, p. 3; Continental Shelf (Tunisial Libyan
Arab Jamahiriya), I C.J. Reports 1982, p. 18; Delimitation of the Mari-
time Boundary in the Gulf of Maine Area (CanadalUnited States of
America), 1 C.J. Reports 1984, p. 246; Continental Shelf (Libyan Arab
Jamahiriyal Malta), I. C.J. Reports 1985, p. 13; Frontier Dispute (Burkina
FasolRepublic of Mali), I.C.J. Reports 1986, p. 554; Land, Island and
Maritime Frontier Dispute (El SalvadorlHonduras: Nicaragua interven-
ing), LC.J. Reports 1992, p. 351; and the pending territorial disputes
Maritime Delimitation and Territorial Questions between Qatar and Bah-
rain and KasikililSedudu Island (BotswanalNamibia).

Three further cases were instituted by unilateral application: Temple of
Preah Vihear (Cambodia v. Thailand), I. C.J. Reports 1962, p. 6; Aegean
Sea Continental Shelf (Greece v. Turkey), 1 C.J. Reports 1978, p. 3; and
Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway), L C.J. Reports 1993, p. 38; however, these cases
deal either with maritime delimitation or with frontier disputes, but not
with both as in the present case.

It is a well-accepted fundamental principle of international law that the
jurisdiction of the Court is based on consent of the States involved. The
Court echoed this view in the recent case of Maritime Delimitation and
Territorial Questions between Qatar and Bahrain:

“There is no doubt that the Court’s jurisdiction can only be estab-
lished on the basis of the will of the Parties, as evidenced by the rele-
vant texts.” (Jurisdiction and Admissibility, Judgment, I. C.J. Reports
1995, p. 23, para. 43.)

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Rosenne also comments as follows on this same established principle:

“There exists an uncontroverted principle of general international
law according to which no State is obliged to submit any dispute
with another State or to give an account of itself to any international
tribunal. The agreement of the parties to the dispute is the pre-
requisite to adjudication on the merits.” (The Law and Practice of
the International Court, 1920-1996, Vol. II, p. 563.)

With this consensual basis of jurisdiction, it can be strongly argued in
this case that unless such consent is genuinely given, and not forced, the
Court should exercise judicial caution in proceeding with the case on its
merits. Nigeria’s objection is premised on the argument that the Applica-
tion was a surprise and that Nigeria was not given the prerequisite notice
either by Cameroon or by the Secretary-General of the United Nations
before the Application was filed by Cameroon.

In a similar vein it is also important for the Court to consider the issue
of justice underpinning this preliminary objection, and ask whether a
jurisdiction forced on Nigeria, as an unwilling Respondent, would pro-
mote peace and good neighbourliness between the Parties and in that
region. This concept of justice is not abstract; it is to be defined and
determined in accordance with the provision in Article 2, paragraph 3, of
the Charter. Jurisdiction is defined by Rosenne as follows:

“Broadly speaking the expression jurisdiction refers to the power
of the Court to ‘do justice’ between the litigating States, to decide
the case before it with final and binding force on those States. The
expression ‘do justice’ has been used by the Court several times,
notably in the UNAT advisory opinion.” (The Law and Practice of
the International Court, 1920-1996, Vol. IL p. 536.)

It is for all the reasons stated above that I felt convinced that the Court
ought to uphold the first preliminary objection of Nigeria and, therefore,
dismiss the Applications of Cameroon.

Tl. THe THiRD PRELIMINARY OBJECTION

The third preliminary objection of Nigeria is that “the settlement of
boundary disputes within the Lake Chad region is subject to the exclusive
competence of the Lake Chad Basin Commission” (CR 98/5, p. 64).
Nigeria argues that the provisions of the Statute of the Lake Chad Basin
Commission, annexed to an agreement dated 22 May 1964, are binding
on the four States which are signatories to that agreement, including

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Cameroon. It argues further that the provisions of the Statute coupled
with the agreements and other understandings between the four States
parties to the Agreement are binding on them, and thus Cameroon can-
not file its Application under Article 36 (2) of the Statute of the Court.
The two other members of the Commission are Chad and Niger. Cam-
eroon denies the meaning that Nigeria attaches to the function and
power of the Commission. Both Parties refer to the Statute of the Com-
mission as well as the assignments given to it by the four member States
of the Commission.

A careful examination of the duties of the Commission is more than
sufficient to confer on it the task of dealing with all the requests that are
now being submitted by Cameroon to this Court. These assignments can
be viewed in two parts: those that are contained in the Statute, i.e., under
Article IX, paragraphs

“fe) to maintain the liaison between the High Contracting parties
with a view to the most effective utilization of the waters of the
Basin;

{d} to follow the progress of the execution of surveys and work 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;

(g) to examine complaints and to promote the settlement of dis-
putes and the resolution of differences” (emphasis added),

and those that are assigned to the Commission by the authority of the
member States. As evidence of this, two sub-commissions of experts
were, inter alia, assigned to carry out the demarcation and delimitation
of borders in the Lake Chad area, having as their working documents
various conventions and agreements concluded between the former colo-
nial Powers. It is important to emphasize that the sub-commissions were
assigned the duty not only to delimit boundaries but also to demarcate
the same. This exercise was carried out between 1989 and 1990; by 1994
the assignment had been fully completed and awaited the signing and
ratification of the pertinent document by individual Heads of State.
Although the document was ratified by Cameroon last year (after this
case had been filed in the Court), Nigeria did not respond accordingly,
presumably because of the Application of Cameroon pending in the
Court.

One important and convincing argument in favour of upholding this
preliminary objection is the fact that the Commission had already carried
out and completed the work that the Court is now called upon by Cam-
eroon to carry out. The four member States are not disputing the final
work of the Commission and all that is left to be done is the ratification of
the resulting instrument. Apart from the fact that it is difficult, under the
circumstances, to establish a case of any dispute between Nigeria and

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Cameroon within the Lake Chad Basin (except for Darak and adjacent
islands), it can be concluded that the Parties, having submitted their claims
to the Commission, are bound by its decision. The enigma, or the confu-
sion, that might arise in this regard is the apparent bifurcation of judicial
authority within the Lake Chad Basin which could occur if all the four
member States agreed to ratify the Commission’s instrument in the future.

In its further argument Nigeria refers to Article 52 of the United
Nations Charter, and considers the Commission’s assignment as being
within the framework of regional arrangements “or agencies for dealing
with such matters relating to the maintenance of international peace and
security as are appropriate for regional action . . .”. The question here is
whether the Lake Chad Basin Commission can be regarded as a regional
organization. In my view, the Commission can be so regarded and there-
fore qualifies as coming under Article 52 of the Charter. The reason for
this is not far-fetched: as already mentioned, paragraph IX (g) of the
Commission’s Statute empowers the Commission to examine complaints,
promote settlement of disputes and resolve differences. The maintenance
of international peace and security, as stipulated in Article 52 (1) of the
Charter, is in accord with the assignments conferred on the Commission
by this regional group of States.

Another point raised by Nigeria during its argument in the oral
proceedings concerns Article 95 of the United Nations Charter, which
provides that:

“Nothing in the present Charter shall prevent Members of the
United Nations from entrusting the solution of their differences to
other tribunals by virtue of agreements already in existence or which
may be concluded in the future.”

The crucial question here is whether the Lake Chad Basin Commission is
a tribunal. To my mind it is, because it is vested with all the powers, func-
tions and duties of a tribunal and it is competent to act as one. The word
“tribunal” is a generic term that encompasses various dispute settlement
jurisdictions. In Law Terminology, a document of the United Nations,
the word “tribunal” is defined as “person or body exercising adjudicatory
functions outside the regular judicial system, i.e. exercising quasi-judicial
functions”; tribunals are referred to as:

“often established by statutory authority, in which case they are
sometimes called statutory tribunals. Although outside the regular
judicial system they are nevertheless subject to the supervisory juris-
diction of the High Court of Justice by the process of judicial review.
They may be called tribunal, board, commission, committee or coun-
cil and are divided into three categories: administrative tribunal,
domestic tribunal, tribunal of enquiry . . .” (Emphasis added.)

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After all, the assignment of the Commission includes not only the delimi-
tation and demarcation of boundaries within the Lake Chad Basin; it
also includes the function of dispute settlement and it therefore qualifies
as an arbitral or administrative tribunal, as the case may be. Hence
Nigeria rightly invokes the provision in Article 95 of the Charter. An
examination of Article 94 of the Charter, which deals with the issue of
compliance “with the decision of the International Court of Justice”,
clearly distinguishes this Court from the establishment of such a tribunal
as that envisaged in Article 95 as an alternative body that could be set up
instead of an application being filed with the Court.

One point is therefore clear with regard to this preliminary objection:
that the Commission had been assigned and is still seised of the duty to
delimit and demarcate the boundary between both Parties in the Lake
Chad Basin, and the subsequent assignment of the same work to the
Court is, therefore, inadmissible. Hence my conclusion that the Court
lacks jurisdiction. Furthermore, the Commission’s assignment, carried
out for and on behalf of the four member States, is a joint affair, appar-
ently indivisible. Both Parties in the present case are therefore obliged to
recognize and abide by the exclusive competence of the Lake Chad Basin
Commission.

Finally on this preliminary objection, there is need for a note of
caution: that the Court should not be called upon to carry out what
has already been accomplished by the Parties through the Commission.

For all these reasons it is my view that the third preliminary objection
of Nigeria should be upheld.

III. THE FOURTH PRELIMINARY OBJECTION

The Court rejects the fourth preliminary objection of Nigeria that:

“The Court should not in these proceedings determine the bound-
ary in Lake Chad to the extent that that boundary constitutes or is
constituted by the tripoint in the Lake.” (Preliminary Objections of
Nigeria, Vol. I, p. 84, para. 4.12.)

However, I hold a contrary view. The reason for so doing is that, having
regard to the position of the tripoint, it is difficult if not impossible to
entertain the request of Cameroon.

Cameroon disagrees with this preliminary objection and argues that
the case-law of the Court does not support the argument of Nigeria. Both
Parties made mention of the Frontier Dispute ( Burkina Fasol Republic of
Mali}, where the Chamber of the Court conceded that it had jurisdiction
to adjudicate on the case notwithstanding the fact that the endpoint of
the frontier lies on the frontier of another, third State. The view of Cam-
eroon is that the Frontier Dispute case, as well as the case of the Terri-

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torial Dispute (Libyan Arab JamahiriyalChad), are case-law that cannot
be distinguished from this present case as claimed by Nigeria.

As I have mentioned earlier in this opinion, a case of this nature
requires the unequivocal consensus of both Parties to enable the Court to
be seised of the matter. For example, both the Frontier Dispute and Ter-
ritorial Dispute cases were brought before the Court by Special Agree-
ment. Another important factor in favour of Nigeria’s argument is the
fact that its interests and those of Chad and Niger are interwoven within
the Lake Chad Basin, in respect of which the Commission has performed
its obligations of demarcation and delimitation.

But the position of Chad with regard to the tripoint is more relevant in
this case when compared to the cases of Frontier Dispute and Territorial
Dispute. Mention has been made of earlier clashes between Nigeria and
Chad in the same area which might or might not affect the tripoint. It can
therefore be said that the interests of Chad and to some extent those of
Niger constitute the subject-matter of this case which, to my mind, can-
not be heard on the merits without Chad intervening as a party. Of
course the immediate answer on this could be the invocation of Article 59
of the Statute, in that the decision of the Court is binding only on the
parties. However, this is a case which is in line with the cases of East
Timor (Portugal v. Australia) and Certain Phosphate Lands in Nauru
(Nauru v. Australia). The earlier case of Monetary Gold Removed from
Rome is also relevant here. The point has been made by Cameroon that
its Applications relate only to the issue of the boundary between it and
Nigeria. The issue here is not what Cameroon files or says but what,
practically, is on the ground as to the position of the tripoint between
Chad and the Parties. Quite definitely, the frontier between Cameroon
and Nigeria will affect the frontier between Cameroon and Chad by vir-
tue of the tripoint. A desirable situation that would certainly confer juris-
diction on the Court would be the seising of the Court by way of special
agreement between Cameroon, Nigeria and Chad. For all these reasons
my conclusion is that the fourth preliminary objection of Nigeria ought
to be upheld.

IV. THE FIFTH PRELIMINARY OBJECTION

In my view, the Court ought to uphold the fifth preliminary objection
as framed by Nigeria which regrettably it rejected, hence my disagree-
ment with the decision of the Court. There are two important reasons
which underlie my decision to take a contrary view to that of the Court:
in effect the Court has failed to respond to the preliminary objection as
framed and presented by Nigeria, and further the conclusions reached by
the Court are contradictory in terms.

Nigeria in its fifth preliminary objection maintains that there is no dis-
pute between it and Cameroon “concerning boundary delimitation as

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such throughout the whole length of the boundary from the tripoint in
Lake Chad to the sea”. It maintains that there simply is no evidence of
such a dispute, either in Cameroon’s original Application or in its Addi-
tional Application filed on 6 June 1994. It went further to particularize
the objection 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” (Preliminary Objections of Nigeria, Vol. I, p. 87).

Cameroon denies the assertion of Nigeria and argues that in fact there
are not only disputes within the Lake Chad Basin area and on the fron-
tier to the sea but that there are also maritime delimitation disputes. The
question put to Nigeria by the Court was not limited to the land bound-
ary but speaks of the whole boundary. Consequently, in the conclusion
reached by the Court, its finding is that there is a dispute between the
Parties concerning the “boundary as a whole”. It is thus clear that,
strictly speaking, the fifth preliminary objection of Nigeria as put before
the Court has not been specifically addressed. The Court ought to have
limited itself to the preliminary objection as framed by Nigeria and there-
fore it cannot be said that the fifth preliminary objection of Nigeria has
been properly dealt with.

As claimed by Nigeria there has been partial demarcation of the
boundary. In fact, Nigeria points out that “something a little over 200
miles of the present boundary has been clearly demarcated by the erec-
tion of boundary pillars” (CR 98/2, p. 21). This is not denied by Cam-
eroon. Nigeria goes further to state:

“Even taking a generous view of the extent of the boun-
dary affected by these local incidents (say, 1/4 of a mile of boundary
for each ‘incident’) they concern, even if all of them were relevant
(which they are not), perhaps some 10 or a dozen miles of
its length. That cannot be taken as representing doubt or dispute
as to the whole length of that 1,000-mile boundary.” (CR 98/2,
p. 25.)

Thus it may be concluded that, contrary to the claim of Cameroon, the
area in dispute can be considered as relatively minor or even negligible.

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In any case, at least it is clear from the alleged facts of the incidents and
disputes presented by the Parties that there is no question of the entire
length of the boundary from Lake Chad to the sea being in dispute.

Another aspect of Nigeria’s fifth preliminary objection concerns the
legal and geographical scope of the boundary dispute. It appears that, in
the view of the Court, Nigeria has not definitively made its position clear
regarding the course of the boundary, or at least does not agree with the
claim of Cameroon. Equally, the Court cannot ascertain from the answer
given by Nigeria (based on the question put to it as already referred to)
what is its own view of the legal scope of the dispute either now or in the
future. Since Nigeria has not filed its Counter-Memorial, it is not bound
to disclose its line of defence at this stage of the procedure. Hence, as
concluded by the Court, “the exact scope of this dispute cannot be deter-
mined at present” (Judgment, para. 93). Yet the Court still concluded
that “a dispute nevertheless exists between the two Parties, at least as
regards the legal bases of the boundary” (ibid). In my view, these are
contradictory statements which I do not agree with. In fact, Cameroon’s
claim in its Application ought to have been restricted to the disputed
boundary locations and area of incidents, which amount to less than
5 per cent of the entire boundary.

Again, the Court ought to have restricted its Judgment to the prelimi-
nary objection as framed by Nigeria, and amplified therein under the
enumerated four points. Based on this view, the Court initially and
rightly concluded that: “On the basis of these criteria, there can be no
doubt about the existence of disputes with respect to Darak and adjacent
islands, Tipsan, as well as the Peninsula of Bakassi.” (Paragraph 87 of the
Judgment.)

The Court should therefore have concerned and indeed limited itself
exclusively to this clear area of boundary disputes, undenied by both
Parties. This view is further confirmed by the Court when it observes:

“All of these disputes concern the boundary between Cameroon
and Nigeria. However, given the great length of that boundary,
which runs over more than 1,600 km from Lake Chad to the sea, it
cannot be said that these disputes in themselves concern so large a
portion of the boundary that they would necessarily constitute a dis-
pute concerning the whole of the boundary.” (Para. 88.)

In effect, the Court on this preliminary objection considered the entire
area from Lake Chad to the sea as being in dispute rather than the loca-
tions referred to by Nigeria.

The Court’s failure to limit its decision to the preliminary objection of
Nigeria as framed calls into question its Judgment in view of the non

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ultra petita rule. The Court addressed a similar matter in submissions in
the Asylum case U.C.J. Reports 1950, p. 402). It is not for the Court to
expand or enlarge the scope of the preliminary objection as framed and
presented by an applicant, nor is the Court called upon to modify it suo
motu; the objection must be considered and decided upon as put forward
by the Applicant in its preliminary objection.

For example, France and the United Kingdom, in their Special Agree-
ment in the Minquiers and Ecrehos case, asked the Court to decide which
of the parties owns these group of islands. The Court might perhaps have
decided that the islands had the status of “res nullius” or of “condo-
minium” U.C.J. Reports 1953, p. 52), but it was obliged to restrict itself
to determining “which of the Parties has produced the more convincing
proof of title to one or the other of these groups, or to both of them”
(ibid. ).

Rosenne, in The Law and Practice of the International Court, 1920-
1996, is of the opinion that,

“in principle it is the duty of the Court, in deciding on the basis of
international law the disputes that are submitted to it, to limit itself
to the terms of its remit — the special agreement, the submissions, or
the question put for an advisory opinion, as the case may be. This —
the non ultra petita rule — gives the parties the last word in the
ability of the Court to settle their dispute.” (Vol. I, p. 173.)

In conclusion, had the Court followed this principle and restricted
itself to the content of the fifth preliminary objection, as formulated and
argued by Nigeria, it might have arrived at a decision different from the
one reached in regard to this objection.

It is for all these reasons that I have voted against the decision of the
Court.

V. THE SIXTH PRELIMINARY OBJECTION

I voted against the decision on the sixth preliminary objection because
lam convinced that Nigeria is justified in its objection that the Applica-
tion filed by Cameroon does not meet the required standard of adequacy
as to the facts on which its Application is based, particularly in relation
to the dates, circumstances and precise locations of the alleged incursions
and incidents by Nigeria, in alleged breach of its international responsi-
bility. A careful perusal of Cameroon’s Applications reveals incongrui-
ties, irregularities, imprecision and mistakes.

Some of these incongruities are patent from the Applications as filed
on 29 March 1994 and 6 June 1994. With reference to the requirement to
be satisfied by Cameroon, its Applications must specify,

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“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” (Art. 38 (2) of the Rules;
emphasis added).

While it is true that Cameroon sufficiently specified the legal grounds
upon which its Applications are based, it has, however, failed to specify
adequately the precise nature of the claim or to provide a “succinct state-
ment of the facts and grounds on which the claim is based”.

For Cameroon to invoke Nigeria’s international responsibility and
consequent obligation to make reparation, it is not enough for Cameroon
to make general and unsubstantiated statements about incidents. Cam-
eroon must supply full particulars of the place, the time and the nature of
the alleged incidents, and also make it clear precisely how these were
serious enough to call into question Nigeria’s international responsibility
as recognized by international law.

It is true, as the Court stated, that “succinct” does not mean “com-
plete”, but it connotes conciseness, and that is a requirement which Cam-
eroon failed to satisfy in its Applications. In its oral argument Nigeria
contended that

“the respondent State, and the Court, need, as a minimum, to know
four things — the essential facts about what is alleged to have
occurred, when it is supposed to have taken place, precisely where it
is supposed to have taken place (especially in relation to any relevant
boundary), and why the Respondent is thought to bear international
responsibility for the incident” (CR 98/2, p. 28).

In its pleadings Cameroon stated that, in order to establish Nigeria’s
responsibility, its Applications were only indicative of the nature of such
responsibility and that the allegations contained therein would be ampli-
fied when the matter reached the merits stage.

However “indicative” such a statement may be, it must be sufficiently
clear as to the nature of Nigeria’s responsibility. And since Cameroon
fails in this regard, the Court ought not to reject Nigeria’s sixth prelimi-
nary objection.

VI. THE SEVENTH PRELIMINARY OBJECTION

The seventh preliminary objection of Nigeria contends that there is
“no legal dispute concerning delimitation of the maritime boundary
between the two Parties which is at the present time appropriate for reso-
lution by the Court” (Preliminary Objections of Nigeria, Vol. I, p. 113).
In support of this contention Nigeria gave two reasons:

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413 LAND AND MARITIME BOUNDARY (DISS. OP. AJIBOLA)

“(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) Secondiy, at the juncture when there is a determination of the
question of title over the Bakassi Peninsula, the issues of mari-
time delimitation will not be admissible in the absence of suf-
ficient action by the Parties, on a footing of equality, to effect a

delimitation ‘by agreement on the basis of international law’.
(Preliminary Objections of Nigeria, Vol. I, p. 113.)

On the first reason, I agree with the conclusion reached by the Court
that this is simply a question of method. It is true that the Court deter-
mines its procedure and could easily arrange its own adjudicatory process
so as to ensure that the land disputes are dealt with first, before embark-
ing on the maritime dispute. As a matter of fact, this does not appear to
me as an issue of preliminary objection and as such it has been rightly
rejected.

However, I hold a contrary view to the conclusion reached by the
Court on the second strand of Nigeria’s seventh preliminary objection.
Here the issue is an important one under international law, as it relates to
the provisions of the United Nations Law of the Sea Convention of 1982.
What Nigeria contends here is that the issue of maritime delimitation is
inadmissible in the absence of negotiation and agreement by the Parties
on a footing of equality to effect a delimitation. In other words, Nigeria
alleges that Cameroon failed to seek first an attempt for a delimitation by
agreement based on international law under the principles and provisions
of the United Nations Convention on the Law of the Sea of 1982. The
relevant provisions are Articles 74 and 83. Article 74, paragraphs 1 and 2,
provides as follows:

“1. The delimitation of the exclusive economic zone between
States with opposite or adjacent coasts shall be effected by agree-
ment 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.” (Emphasis added.)

Article 83, paragraphs 1 and 2, 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

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time, the States concerned shall resort to the procedures provided
for in Part XV.” (Emphasis added.)

As quoted above, the provisions of the two Articles are similar, but
while one deals with the exclusive economic zone (Art. 74), the other
deals with the issue of the continental shelf (Art. 83). Furthermore, both
Parties are signatories to the Convention, which they have also ratified.
The question now is whether these provisions are binding on both of
them; in my view, there is no doubt about that. Before instituting an
application in this Court, it is a condition precedent that both Parties
ought to attempt genuinely to agree on the settlement of their maritime
boundary dispute, failing which such a matter could be brought before
the Court. These are mandatory provisions for both Parties. Cameroon,
for its part, contends that there was no compelling reason to negotiate
nor reach an agreement before filing an application before the Court, and
went further to state that attempts were made to reach an agreement but
failed. While it may be true to say that there was an attempt to negotiate
and agree on their maritime boundary delimitation up to point G, there
is however no evidence to indicate that there was any attempt to reach
such an agreement regarding their maritime disputes beyond that point.
To institute therefore an action in the Court without compliance with the
provisions set out above, under the Law of the Sea Convention, is a fatal
omission which makes such an application inadmissible. In any case, the
Court, pursuant to Article 38 of the Statute, must apply international law
and “international conventions, whether general or particular . . .”
(para. 1 (a)). This has always been the position under general interna-
tional law and it was first affirmed by the Court in 1969 in the North Sea
Continental Shelf cases, which emphasize the need for parties to be given
the opportunity to negotiate, when it held that

“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 . . .” (North Sea
Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47).

A clear guideline was expressed in the Gulf of Maine Chamber case that
first an agreement must be sought, following negotiations which should be
conducted in good faith with a clear and honest intention of achieving a
successful result. And the Chamber went on to state in its Judgment that:

“Where, however, such agreement cannot be achieved, delimita-
tion should be effected by recourse to a third party possessing the
necessary competence.” (Delimitation of the Maritime Boundary in
the Gulf of Maine Area, I. C.J. Reports 1984, p. 299.)

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It is therefore immaterial to determine whether this is a procedural or a
substantive issue. What is clear is that the process of negotiation and
attempt to reach an agreement in good faith must precede any reference
to a third-party adjudication. In any event, I strongly believe that with-
out complying with the prerequisite condition of negotiation and attempt
to reach an agreement, Cameroon failed to comply with a requirement of
substance and not just a merely procedural one. This is not a question of
jurisdiction under Article 36 (2) of the Statute, but one of admissibility.
My conclusion is that the Applications of Cameroon are not admissible
as regards a dispute over the maritime boundary.

VII. THE EIGHTH PRELIMINARY OBJECTION

The last preliminary objection of Nigeria appears to me to be a sound
one, which ought to be upheld by the Court. Unfortunately the Court
also rejects it. Here, Nigeria argues “that the question of maritime delimi-
tation necessarily involves the rights and interests of third States and is to
that effect inadmissible” (Preliminary Objections of Nigeria, Vol. I,
p. 133). It states that there are five States involved within the Gulf, which
is “distinctly concave”. These States are Equatorial Guinea, Gabon, Sao
Tome and Principe, and the two Parties in the present case. Nigeria, in its
argument, tries to distinguish and differentiate the situation of this par-
ticular case from other cases like those of the Frontier Dispute, the Con-
tinental Shelf (Libyan Arab JamahiriyalMalta) as well as the Continen-
tal Shelf (TunisialLibyan Arab Jamahiriya). Cameroon, on its part,
argues to the contrary, that all these cases are relevant and that they
should be followed in the present case. Besides, it invokes the provision
of Article 59 to the effect that a judgment in this case would be binding
on no other States than the Parties.

The subject-matter of this preliminary objection concerns maritime
delimitation beyond point G, which relates to the exclusive economic
zone. Agreed, that a delimitation exercise between the Parties may not
affect the interests of third States as such, but, in this particular case, it is
difficult to effect any maritime delimitation beyond point G without call-
ing into question the interests of other States, particularly Equatorial
Guinea and Sao Tome and Principe. In accordance with the jurispru-
dence of the Court, it cannot decide a dispute between two parties with-
out the consent of those States whose interests are directly affected,
unless they intervene in such a matter.

It is for all these reasons that the Court ought to refuse the Application
of Cameroon based on maritime delimitation of the area beyond point G
and uphold the eighth preliminary objection of Nigeria.

144
416 LAND AND MARITIME BOUNDARY (DISS. OP. AJIBOLA)

VIII. THe SECOND PRELIMINARY OBJECTION AND THE FIRST
PART OF THE SEVENTH PRELIMINARY OBJECTION

However, I agree with the decision of the Court in rejecting the second
preliminary objection of Nigeria, whereby it maintains that for a period
of 24 years prior to the filing of Cameroon’s Application both Parties had
accepted a duty to settle all boundary disputes through “the existing
boundary machinery” and that this constitutes an implied agreement and
that Cameroon is thereby estopped from invoking the jurisdiction of the
Court. I believe that, having regard to all the facts presented by both
Parties in this case, Cameroon is not estopped from invoking the jurisdic-
tion of the Court and that this duty cannot override the provision in
Article 33 of the Charter which permits parties to seek the settlement of
their disputes by “negotiation, enquiry, mediation, conciliation, arbitra-
tion, judicial settlement .. . or other peaceful means of their own choice”.
In addition, Nigeria referred its grievance concerning the armed incident
of 1981 to the Organization of African Unity. In the circumstance, it is
difficult to agree with Nigeria that this is a case of pacta sunt servanda or
estoppel.

Furthermore, I agree with the decision of the Court, as already men-
tioned above, that the first part of Nigeria’s seventh preliminary objec-
tion deals with the matter of methodology and as such the objection,
which in my opinion is unconvincing, has been rightly rejected by the
Court.

CONCLUSION

The general conclusion J have reached with regard to the eight prelimi-
nary objections filed by Nigeria is that, whereas I agree generally with the
decisions of the Court on the second and the first part of the seventh pre-
liminary objections, I do however disagree with the decisions reached by
the Court on the first, third, fourth, fifth, sixth and the second part of the
seventh and the eighth preliminary objections respectively.

As already mentioned, the most important objection raised by Nigeria
is the first one, which deals with Article 36 of the Statute, particularly its
paragraphs 2 and 4. Needless to say that there would have been no need
for the Court to consider the remaining seven preliminary objections if
the first one had been upheld.

I am also of the view that the Right of Passage over Indian Territory
case is no longer good case-law. In 1957, when the Court had the first
opportunity of interpreting the provision in Article 36 (4), the decision,
while positively and effectively asserting the legal position as to the
deposit of the declaration of acceptance: as a condition precedent to
invoking the jurisdiction of the Court, failed to do the same with regard

145
417 LAND AND MARITIME BOUNDARY (DISS. OP. AJIBOLA)

to the second prerequisite condition: that copies of such instruments
must be transmitted to all member States. That precisely is what the
Court is called upon to regularize in this case, which it failed to do. This
is a unique opportunity for the Court to do so, in order not to drag an
unwilling Respondent to Court without its real consent. To do so may
not be in the interests of peace within that enclave. Most cases of this
nature that have come to the Court have come by way of Special Agree-
ment and it would have been better for the Parties to be persuaded by the
Court to bring the case in this manner. That would not be a unique
attempt, having regard to what happened in the case concerning the
Maritime Delimitation and Territorial Questions between Qatar and Bah-
rain. There are other considerations of a compelling nature to warrant an
exercise of caution on the part of the Court. If one considers the fact that
Cameroon is seeking the delimitation of the entire maritime and land
boundary between it and Nigeria, the fact that there had been allegations
and counter-allegations of border incidents and the fact that the Parties
have on the ground various commissions to effect demarcation, delimita-
tion and pacific settlement of disputes — all these facts are cogent
reasons why the Parties should be enjoined to come to Court by way
of Special Agreement.

Furthermore, it is essential that the Court should handle this matter
with care to ensure that peace will reign within that region at the end of
this litigation. In this regard there is also need for caution to ensure
that the jurisdiction of the Court will not be an exercise in futility if, for
example, what is required of the Court is ultimately accomplished by the
Lake Chad Boundary Commission.

Finally, in dealing with cases between States, adherence to the general
principles of international law as expressed in Article 2, paragraph 1, of
the Charter (regarding the principle of the sovereign equality of Mem-
bers) must be observed. As stated above, the jurisdiction of the Court is
based on genuine consent of the parties and nothing should be done to
derogate from this basic principle. As observed in the dissenting opinion
of Judge Chagla in the Right of Passage over Indian Territory case:

“I should like to make one general observation with regard to the
question of the jurisdiction of the Court. It has been said that a good
judge extends his jurisdiction. This dictum may be true of a judge in
a municipal court; it is certainly not true of the International Court.
The very basis of the jurisdiction of this Court is the will of the State,
and that will must clearly demonstrate that it has accepted the juris-
diction of the Court with regard to any dispute or category of dis-
putes. Therefore, whereas a municipal court may liberally construe
provisions of the law which confer jurisdiction upon it, the Interna-
tional Court on the other hand must strictly construe the provisions

146
418 LAND AND MARITIME BOUNDARY (DISS. OP. AJIBOLA)

of the Statute and the Rules and the instruments executed by the
States in order to determine whether the State objecting to its juris-
diction has in fact accepted it.” (C.J. Reports 1957, p. 180.)

(Signed) Bola AJIBOLA.

147


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

TREATMENT IN HUNGARY OF
AIRCRAFT AND CREW OF

UNITED STATES OF AMERICA

(UNITED STATES OF AMERICA v. HUNGARIAN
PEOPLE’S REPUBLIC)

ORDER OF JULY 12th, 1954

1954

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

TRAITEMENT EN HONGRIE
D’UN AVION DES ETATS-UNIS

D’AMERIQUE ET DE SON EQUIPAGE

(ETATS UNIS D’AMERIQUE c. REPUBLIQUE
POPULAIRE DE HONGRIE)

ORDONNANCE DU 12 JUILLET 1954
This Order should be cited as follows :

“Case of the treatment in Hungary of aircraft of
United States of America
Order of July rath, 1954: I. C.J. Reports 1954, P. 99.”

La présente ordonnance doit étre citée comme suit :
«Affaire du traitement en Hongrie d'un avion des
États-Unis d'Amérique
Ordonnance du 12 juillet 1954: C.I.J. Recueil 1954, p. 99.»

Sales number 121
No de vente:

99

COUR INTERNATIONALE DE JUSTICE

+ | 1954
ANNÉE 1954 Le 12 juillet
Rôle général

n° 22

12 juillet 1954

TRAITEMENT EN HONGRIE
D'UN AVION DES ÉTATS-UNIS
D’AMERIQUE ET DE SON ÉQUIPAGE

ÉTATS-UNIS D’AMERIQUE c. REPUBLIQUE
POPULAIRE DE HONGRIE)

ORDONNANCE

Présents : Sir Arnold McNair, Président ; M. GUERRERO, Vice-
Président; MM. ALVAREZ, BASDEVANT, HACKWORTH,
WINIARSKI, KLAESTAD, BADAWI, READ, Hsu Mo, Levi
CARNEIRO, ARMAND-Ucon,  KOJEVNIKOV,  Juges ;
M. GARNIER-COIGNET, Greffier adjoint.

La Cour internationale, de Justice,
ainsi composée,
après délibéré en chambre du conseil,

vu les articles 36 et 48 du Statut de la Cour;

rend l'ordonnance suivante :

Considérant que le 3 mars 1954, l'ambassadeur des Etats-Unis
d'Amérique aux Pays-Bas a déposé au Greffe une requête datée
du 16 février 1954, signée par l'agent du Gouvernement des
États-Unis d'Amérique, introduisant devant la Cour une instance
contre le Gouvernement de la République populaire de Hongrie
au sujet « de certains actes accomplis par ce dernier Gouvernement
de concert avec le Gouvernement de l’Union des Républiques
socialistes soviétiques » ;

4
AVION DES É.-U. ET ÉQUIPAGE (ORDONN. DU 12 VII 54) 100

Considérant qu’à la même date l'ambassadeur des États-Unis
d'Amérique aux Pays-Bas a déposé au Greffe une autre requête,
datée du 16 février 1954, signée par l’agent du Gouvernement
des États-Unis d'Amérique, introduisant devant la Cour une
instance contre le Gouvernement de l’Union des Républiques
socialistes soviétiques pour la même question, le Gouvernement
des États-Unis exprimant le désir que les deux requêtes soient
examinées en même temps ;

Considérant que la requête introduisant l'instance contre la
République populaire de Hongrie a été dûment communiquée
par le Greffe au ministre des Affaires étrangères de Hongrie, le
3 mars 1954;

Considérant que les deux réquétes ont été dûment communiquées
par le Greffe à tous les Membres des Nations Unies, par l'entremise
du Secrétaire général des Nations Unies, ainsi qu’aux autres Etats
admis à ester en justice devant la Cour;

Considérant que la requête introduisant l'instance contre la
République populaire de Hongrie a été directement communiquée
le 3 mars 1954 par le Greffe à l'ambassadeur de l’Union des Répu-
bliques socialistes soviétiques aux Pays-Bas et que communication
de la requête des États-Unis d'Amérique introduisant l'instance
contre l’Union des Républiques socialistes soviétiques a été faite
à la même date au ministre des Affaires étrangères de Hongrie ;

Considérant que la requête introduisant l'instance contre la
République populaire de Hongrie contient le paragraphe suivant :

« Le Gouvernement des États-Unis, en présentant à la Cour la
présente requête, déclare accepter la juridiction de la Cour dans la
présente affaire. Il ne semble pas qu’à ce jour, le Gouvernement
hongrois ait remis une déclaration à la Cour, et bien qu'il ait été
invité à le faire par le Gouvernement des Etats-Unis dans la note
jointe en annexe, il n’a fait aucune réponse utile à cette invitation.
Le Gouvernement hongrois est cepéndant qualifié pour reconnaître
la juridiction de la Cour en la matière et il lui est loisible, lorsque
cette requête lui sera notifiée par le Greffier, conformément au Régle-
ment de la Cour, de prendre les mesures nécessaires pour que soit
confirmée la juridiction de la Cour à l’égard des deux parties au
différend. ;

Ainsi, le Gouvernement des Etats-Unis fonde la juridiction de la
Cour sur les considérations qui précèdent et sur l’article 36, para-
graphe 1, du Statut. »

Considérant que, dans une lettre adressée au Greffe le 14 juin
1954 par le chargé d’affaires de la République populaire de Hongrie
aux Pays-Bas il est dit:

«.... le Gouvernement de la République populaire hongroise n’est
pas à même de se soumettre en ce cas à la compétence de la Cour
internationale de Justice » ;

2

fe)
AVION DES É.-U. ET ÉQUIPAGE (ORDONN. DU I2 VII 54) IOI

Considérant que copie de cette lettre a été communiquée à
l'agent du Gouvernement des États-Unis d'Amérique, par lettre
du 16 juin 1954;

Considérant que, dans ces conditions, la Cour doit constater
quelle ne se trouve en présence d'aucune acceptation par le
Gouvernement de la République populaire de Hongrie de la
juridiction de la Cour pour connaître du différend faisant l’objet
de la requête dont elle a été saisie par le Gouvernement des Etats-
Unis d'Amérique, et qu’en conséquence, elle ne peut donner suite
à cette requête ;

La Cour

ordonne que l'affaire soit rayée du rôle.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le douze juillet mil neuf cent
cinquante-quatre, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-

tivement au Gouvernement des États-Unis d'Amérique et au
Gouvernement de la République populaire de Hongrie.

Le Président,
(Signé) Arnold D. McNair.

Le Greffier adjoint,
(Stgné) GARNIER-COIGNET.

6


                          SEPARATE OPINION OF PRESIDENT DONOGHUE

      Reasons for vote in favour of subparagraph (5) of the dispositive paragraph of the
Judgment  Both Parties consider that the Court has sufficient information to delimit the outer
continental shelf  However, Court has scant evidence regarding any outer continental shelf 
Methodology that achieves an equitable delimitation of the 200-nautical-mile zones does not
necessarily result in equitable delimitation of the outer continental shelf.

       1. I have voted in favour of subparagraph (5) of the dispositive paragraph of the Judgment,
pursuant to which the maritime boundary continues beyond 200 nautical miles until it reaches the
outer limits of the continental shelf or the area where the rights of third States may be affected.
I submit this opinion in order to indicate the reasons why I have cast this vote and why I do so with
reluctance.

       2. As the Court notes, both Parties have asked the Court to delimit the continental shelf beyond
200 nautical miles from the baselines from which the breadth of the territorial sea is measured
(the “outer continental shelf”). Each Party has proposed that the Court do so by extending the
boundary line that it proposes  an equidistance line on the part of Somalia and the parallel of
latitude on the part of Kenya. The Court can reasonably assume that each Party has called upon the
Court to delimit the outer continental shelf in full awareness of the fact that a maritime boundary
established by the Court need not follow the course proposed by a party.

       3. Each Party also has a comprehensive appreciation of the strength, and potential weaknesses,
of its own submission to the Commission on the Limits of the Continental Shelf (the “CLCS” or
“the Commission”). Neither Party has questioned the other Party’s entitlement to outer continental
shelf or the other Party’s claim that, in certain parts of the area in which the Parties’ claims overlap,
such entitlement extends to the 350-nautical-mile constraint set out in Article 76, paragraph 5, of the
United Nations Convention on the Law of the Sea (“UNCLOS”). All indications, therefore, are that
both Parties consider that the Court has sufficient information to arrive at an equitable delimitation
of the outer continental shelf. It is on this basis that I have reached the conclusion that the Court
should delimit the outer continental shelf in this case.

       4. My hesitancy about the Court’s decision to delimit the outer continental shelf in this case
stems from the fact that the Court has scant evidence regarding the existence, shape, extent and
continuity of any outer continental shelf that might appertain to the Parties. The Court is not
well positioned to identify, even approximately, any area of overlapping entitlement and thus to
arrive at an equitable delimitation of any area of overlap.

        5. For avoidance of doubt, I note that my misgivings about the Court’s decision to delimit the
outer continental shelf are not animated by procedural concerns. The fact that the CLCS has not yet
made a recommendation relating to the outer limits of the continental shelf of either State is not in
itself an obstacle to equitable delimitation of the outer continental shelf.

      6. This case is entirely different from other cases in which a tribunal has delimited the outer
continental shelf of two States. In Delimitation of the Maritime Boundary in the Bay of Bengal
(Bangladesh/Myanmar), the International Tribunal for the Law of the Sea (“ITLOS”) noted that there
was “uncontested scientific evidence” that “practically the entire floor of the Bay of Bengal,
including areas appertaining to [both Parties]”, was covered with a “thick layer of sedimentary rocks”

                                                  -2-

(Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment,
ITLOS Reports 2012, p. 115, paras. 445-446). The Annex VII Tribunal in the Bay of Bengal
Maritime Boundary Arbitration between Bangladesh and India took note of the reasoning of ITLOS
and of the maritime delimitation between Bangladesh and Myanmar and concluded that
both Bangladesh and India had entitlements to outer continental shelf (Bay of Bengal Maritime
Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, RIAA, Vol. XXXII, p. 138,
paras. 457-458).

      7. In Ghana/Côte d’Ivoire, the Special Chamber of ITLOS had the benefit of an affirmative
CLCS recommendation in relation to Ghana. It observed that the geological situation of Côte d’Ivoire
was “identical” to that of Ghana (Delimitation of the Maritime Boundary in the Atlantic Ocean
(Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017, p. 136, para. 491).

       8. In the present case, the Court has no comparable evidence regarding the existence, extent,
shape or continuity of any outer continental shelf appertaining to either Party. The Parties submitted
to the Court the executive summaries of their submissions to the Commission (although not the
submissions themselves). Submissions by States to the CLCS are unilateral assertions made with a
view towards maximizing the area of continental shelf that the State can claim. It cannot be assumed
that the Commission will adopt any State’s submission.

      9. My doubts about the Court’s decision to delimit the outer continental shelf do not result
from the particular course of the boundary that the Court has established. The lack of information
about any area of overlapping entitlement would be of concern whether that delimitation had
proceeded along the parallel of latitude, as Kenya proposed, along an equidistance line, as Somalia
proposed, or along the adjusted equidistance line established in the Judgment.

       10. I also offer a brief observation about the methodology that is appropriate to the delimitation
of the outer continental shelf.

        11. In relation to delimitation of the 200-nautical-mile zones, the key determinant of an
equitable delimitation is normally the coastal configuration of the two States (represented by base
points when an equidistance methodology is applied). The area of overlapping entitlement is
identified on the basis of the projection in the seaward direction of each party’s relevant coast,
i.e. “the coast [of each Party] . . . [that] generate[s] projections which overlap with projections from
the coast of the other Party” (Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment, I.C.J. Reports 2009, pp. 97-98, para. 99). An equidistance line, constructed using base
points on the parties’ coasts, provides an initial indication of an equitable apportionment of the area
of overlap, to be adjusted if special and/or relevant circumstances so warrant.

       12. Beyond 200 nautical miles from the coasts of two adjacent States, on the other hand, any
area of overlapping entitlement is not determined by the configuration of the coasts of the two States,
but rather by application of the geomorphological and geological criteria set out in Article 76 of
UNCLOS. Coastal configuration only becomes relevant to a State’s entitlement to outer continental
shelf if it has been established (on the basis of the criteria set out in Article 76, paragraph 4, of
UNCLOS) that the outer edge of a State’s continental margin extends so far as to reach a distance of
350 nautical miles from the baselines from which the breadth of its territorial sea is measured, where
the State’s entitlement is limited by the 350-nautical-mile constraint contained in Article 76,
paragraph 5, of UNCLOS.

                                                  -3-

       13. In delimitation between two adjacent States, it is simple (and therefore inviting) to continue
a delimitation line past the 200-nautical-mile limit, using a directional arrow. However, because the
juridical basis for entitlement to outer continental shelf is entirely different from the basis for
entitlement within 200 nautical miles, it cannot be presumed that a line that achieves an equitable
delimitation of the 200-nautical-mile zones will also result in equitable delimitation of overlapping
areas of two States’ outer continental shelf.

                                                              (Signed)   Joan E. DONOGHUE.

                                             ___________