506

SEPARATE OPINION OF JUDGE MBAYE

[Translation]

General considerations deemed helpful for a better understanding of the dis-
pute — Applicability of the Thomson-Marchand Declaration — Delimitation|
demarcation — Effectivités and legal title — Purpose and value of colonial
treaties — Nature of treaties of protection — Legal value of Maroua Declara-
tion — Court’s jurisprudence on maritime delimitation, application — Repara-
tion adjudged sufficient for injury suffered and rendering it unnecessary to
determine responsibility therefor.

INTRODUCTION

1. I share the findings reached by the Court; it is absolutely correct:

fa) in concluding, in respect of the Lake Chad region, having deter-
mined the endpoint of the lake boundary at the “mouth of the
Ebeji”, that

— “as regards the settlements situated to the east of the frontier
confirmed in the Henderson-Fleuriau Exchange of Notes of
1931, sovereignty has continued to lie with Cameroon”; and

(b) in confirming, as regards Bakassi, that “sovereignty over the penin-
sula lies with Cameroon”.

In so doing, the Court has made the law prevail over the fait accompli.

2. The proceedings have thus drawn to a close after passing through
numerous phases which, although costing a great deal of time, did at
least have the merit of clarifying the substantive issue before the Court.
This has enabled the Court to achieve a comprehensive and definitive
settlement of a border dispute which for some 19 years has divided
two brother countries of Africa: Cameroon and Nigeria. This dispute, in
the form that it was referred to the Court, concerned the entire course of
the boundary, both terrestrial and maritime, separating the areas over
which each State has jurisdiction.

3. Like the Parties, the Court divided the boundary into a number of
sectors:

— the Lake Chad region,

— the land boundary between Lake Chad and Bakassi,
— Bakassi,

— the maritime boundary.

4. Apart from the preliminary objection that the Court joined to the

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 507

merits by its Judgment of 11 June 1998, three further issues were added to
the matters arising from the points mentioned above. Those issues were:

— the intervention of Equatorial Guinea,
— Cameroon’s responsibility claim,
— Nigeria’s counter-claim.

5. Although I voted in favour of the entire dispositif of the Judgment,
I felt that it would be appropriate to draft a separate opinion setting out
a number of considerations emphasizing certain points that I regard
as being of particular significance, or addressing issues on which my
responses may be somewhat different to those given by the Court. In the
present opinion I will confine myself to brief comments on the Lake Chad
region and Bakassi, after saying a few words about the principle of the
intangibility of colonial frontiers, before going on to make a number of
observations on maritime delimitation and on the issue of responsibility.

6. But first, it seems to me that a few preliminary remarks of a general
nature would be helpful.

SECTION |. GENERAL CONSIDERATIONS

7. I propose to make a number of observations linked to the context
of the dispute which may help to make it more readily understandable.

1. The States in Question

8. The dispute submitted to the Court involved two States of sub-
Saharan Africa, on the one hand Cameroon and on the other Nigeria, a
country regarded on that continent as, relatively speaking, a great Power.
The Agent of Nigeria said as much in guarded terms on 28 February
2002 in opening the first round of his country’s oral argument. He gave
an impressive list of the substantial roles which Nigeria has played and
continues to play in Africa.

It is a fact that, in Africa, Nigeria is perceived as a Power not only in
demographic terms (120 million inhabitants), but also in economic, social
and military terms. Within the sub-region where 11 is situated, that State
is both respected and feared, and those feelings extend over a good part
of western and central Africa. It is not impossible that Nigeria seeks, to
some extent and indeed quite legitimately, to derive advantage from that
fear which it inspires. The circumstances and events of the present dis-
pute would certainly not contradict such an observation.

2. The Means Chosen by the Parties to Defend Their Positions

9. Each of the Parties to the present dispute chose the ground on
which it wished to position itself in order to argue its case.

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 508

Thus in this case, from the filing of the Application right up to the end
of the oral pleadings, one had the impression that there was one Party
which clung for all it was worth to the letter of the law, and one which
relied more on facts, albeit dressed up in a legal guise.

10. On the one side we had Cameroon, which had placed the matter
before the OAU, then the United Nations, and then the Court, and on
the other there was Nigeria, which had criticized Cameroon for each of
these initiatives concerning an issue which, according to Nigeria’s repre-
sentatives, could have been settled by dialogue ard negotiation.

11. Cameroon relied on the principle of uti possidetis juris and gener-
ally on legal titles founded essentially on treaties, agreements, declara-
tions, and decisions of the League of Nations and of the United Nations.

12. Nigeria, for its part, sought out weaknesses capable of under-
mining the validity of the legal titles relied upon by Cameroon, and based
the essence of its position before the Court on efjectivités.

13. This situation cannot have escaped the Court’s notice and neither
the written pleadings nor the argument of the Parties’ counsel have been
able to efface the impression produced by it.

Where Cameroon invoked a legal title, Nigeria spoke of history, of
geography, of ethnology and of the “historical consolidation of title”. Of
course, this is not a criticism, simply an observation. Each party to pro-
ceedings is free to choose the terrain on which it wishes to place the judi-
cial debate.

3. The Raison d'Etre for Respect for Colcnial Boundaries

14. Many countries of sub-Saharan Africa, and more particularly
those of western and central Africa, have been troubled since independ-
ence by an instability which precludes a serious and continuous search
for true solutions to underdevelopment. Such ins:ability fosters poverty.

15. The founding fathers of the African nations, who sought to dis-
prove the forecast that Africa had “got off to a bad start”, had decided,
as the Chamber pointed out in the Frontier Dispute ( Burkina Fasol Repub-
lic of Mali) case, “at their first summit conference after the creation of
the Organization of African Unity”, in resolution AGH/Res.16 (1), to
adopt the principle of uti possidetis juris (LC.J. Reports 1986, p. 565,
para. 22). At all costs they wanted to avoid 1aving the boundaries
bequeathed by the colonial Powers (however absurd, illogical or badly
drawn, and even where they divided ethnic grours or tribes), called into
question. This is clear from the fact that, at the conference of African
peoples held in Accra in December 1958 (thus less than six years before
the Cairo conference), African leaders stated in a resolution on frontiers
that: “the artificial barriers and boundaries drawn by imperialists to
divide the African peoples to the detriment of Afr:cans must be abolished
or adjusted . . .” (cited by Zidane Mériboute in Lz codification de la suc-

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 509

cession d'Etats aux traités — Décolonisation, sécession, unification,
p. 119).

The African nations thus had to choose between two routes. They were
well aware of the evils which could follow from a rejection of the colonial
frontiers in terms of the stability of the new States. They chose to opt for
the intangibility of those frontiers.

16. That is why both Parties in the present case have paid particular
attention to the issue of respect for colonial boundaries. That is a further
reason why I feel I should return to that issue.

17. One of Nigeria’s counsel stated at the hearing of 6 March 2002
that this is an important case and that the Cour:’s decision “will have
serious consequences”. He was absolutely right.

Indeed the whole of Africa has been awaiting the Court’s Judgment,
fearing any impugnment of the principle of the “intangibility of colonial
frontiers”.

18. That is also why I regret that the Court, while not rejecting that
principle (far from it} and applying it in practice, did not find it necessary
to discuss the issue further, merely stating, in relation to Bakassi in par-
ticular, that it “has not found it necessary to pronounce upon the argu-
ments of uti possidetis”.

19. Respect for colonial boundaries is a principle of exceptional sig-
nificance in Africa. The strict application of such respect is a prerequisite
for peace and security on that continent. The dispute between Cameroon
and Nigeria has raised new questions as to the principle’s specific scope.
It was the Court’s duty forcibly to reaffirm the obligation of uncondi-
tional respect incumbent upon every African State.

The reason for this was set out by the Court 11 the Frontier Dispute
(Burkina Fasol Republic of Mali) case:

“In fact, however, the maintenance of the territorial status quo in
Africa is often seen as the wisest course, to preserve what has been
achieved by peoples who have struggled for their independence, and
to avoid a disruption which would deprive the continent of the gains
achieved by much sacrifice. The essential requirement of stability in
order to survive, to develop and gradually to consolidate their inde-
pendence in all fields, has induced African States judiciously to con-
sent to the respecting of colonial frontiers, and to take account of it
in the interpretation of the principle of self-determination of
peoples.” (C.J. Reports 1986, p. 567, para. 25.)

4. Nationality and Ethnicity in Africa

20. In relation to the Lake Chad region, the Court encountered the
issue of nationality/ethnicity conflicts that are so frequent in Africa.

We should never lose sight of the fact that, in Africa, the majority of
countries were attributed their nationality only some 50 years ago.

By contrast, ethnic groups have existed, and hz.ve often straddled the

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LAND AND MARITIME BOUNDARY (SEP. GP. MBAYE) 510

international boundaries between the new States, since time immemo-
rial.

As a result certain authors have written that in Africa, “contrary to
what occurred in Europe, the State preceded the Nation”, although this
may not always be the case.

21. Whatever the truth of the matter, a natioaality which has been
superimposed on ethnic groupings is, without the intervention of the
public authorities, felt much less strongly than ethnicity. It may very well
be that two Kanuris (an ethnic group in the Lak: Chad region) of dif-
ferent nationalities feel much closer to one another than a Kanuri and a
Hausa (another ethnic group in that region) of the same nationality. Cer-
tain serious problems of the African continent are explicable on this
basis. One can thus be easily led astray in good faith, attributing to
nationality what is solely a matter of ethnicity. Such a proposition might
be applied in the present case to the Lake Chad region and to the argu-
ments of Nigeria in this respect as regards the Niserian villages.

It was this situation in Africa that impelled Pelissier to write in Les
Paysans du Sénégal, on page 23: “National consciousness has not erased
the rich diversity of a long past . . . Deeply Senegulese for a few decades
only, our regions have been since time immemorial . . . Wolof, Serer,
Toucouleur, Manding, Diola, Balant, etc... .”

22. Throughout the length of the boundary between Cameroon and
Nigeria, it would seem that, for a very long time and notwithstanding the
various political statuses enjoyed by these regions in the course of their
history (German, British or French possessions, trdependence), the indi-
genous populations have settled according to their ethnic affinities and
their economic needs in total disregard of territorial boundaries and
nationality, and that Governments have subseqiently sought to take
advantage of the particular situations thus created. This context did not
escape the attention of the Court in the present czse (see para. 67 of the
Judgment). That is why Africa’s salvation lies in respect for colonial
boundaries, expressed unequivocally and without recourse to subtle dis-
tinctions. Later on we will consider the two exceptions to this proposition.

SECTION 2. DETERMINATION OF THE COURSE OF THE LAKE AND LAND
BOUNDARY BETWEEN THE TWO STATES

23. The Court, as always in disputes like the present case, has deter-
mined the boundary between the two countries with precision, without
assuming the role of a demarcation authority (para. 84 of the Judgment).

24. I deliberately use the word “determination” and am employing it
in a general sense which encompasses the terms “delimitation”, “demar-
cation” and “indication”. I find it particularly appropriate in the present
case, with “determine” meaning here: to indica’‘e with precision. The
Court uses an equivalent term, in particular in pa-agraph 85 of its Judg-

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) sil

ment when it states the purpose of its task as beiny “to specify definitively
the course of the . .. boundary .. .” (emphasis added by the Court). It
nevertheless defines and distinguishes between the two terms delimitation
and demarcation, as we shall see later.

1. The Boundary in the Lake Chad Region

A, The instruments applicable

25. When we address the question of whether or not there exists a
boundary between Cameroon and Nigeria in Lake Chad, we find our-
selves dealing mainly with the /9/9 Milner-Simon Declaration. That
Declaration was clarified in 1930 by the Thomson- Marchand Declaration,
which was confirmed and incorporated in the Henderson-Fleuriau
Exchange of Notes between France and Great Britain on 9 January 1931.

Those instruments had never been challenged until quite recently. They
describe the boundary in some detail from the “junction of the three old
British, French and German boundaries at a point in Lake Chad 13° 05”
latitude north and approximately 14° 05” longitude east of Greenwich”
to the Atlantic Ocean (Preamble to the Thomson-Marchand Declaration).

26. The Thomson-Marchand Declaration contains 138 paragraphs.
Signed on behalf of Great Britain by the Governor of the Colony and the
Protectorates of Nigeria and on behalf of France by the Governor of the
French Cameroons, it is, in my view, together with the Notes and the
accompanying Moisel map, a legally valid agrezment which binds the
two Parties in the present case.

27. Nigeria and Cameroon agree on this point. The Court clearly
stated that:

“the Thomson-Marchand Declaration, as approved and incorpo-
rated in the Henderson-Fleuriau Exchange of Notes, has the status
of an international agreement. The Court acknowledges that the
Declaration does have some technical imperfzctions and that certain
details remained to be specified. However, it finds that the Declara-
tion provided for a delimitation that was sufficient in general for
demarcation.” (Para. 50 of the Judgment.)

28. However, as Nigeria had levied a certain umber of criticisms at
the Declaration, it would not be unhelpful to address that one of those
criticisms which seems to me to carry the most weight for the Respon-
dent, notwithstanding the clear demonstration by the Court in reaching
the conclusion cited above.

B. Legal force and significance of the Thomson-Marchand Declaration

29. For Nigeria, the Exchange of Notes which. might give the Thom-
son-Marchand Declaration the appearance of an agreement in reality did

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 512

not fix the boundary between its territory and that of Cameroon. Nigeria
based its argument on the following provision of the Notes exchanged by
the French and British authorities, in which we read in almost identical
terms that:

“The Declaration is not the product of a boundary commission
constituted for the purpose of carrying out the provisions of
Article 1 of the Mandate, but only the result of a preliminary survey
conducted in order to determine more exactly than was done
in the Milner-Simon Declaration of 1919 the line ultimately to be
followed by the boundary Commission.”

30. I would first of all observe that in the “Notes” from the representa-
tives of France and Great Britain, the above-citec passage is followed by
this passage:

“nonetheless the Declaration does in substance define the frontier;
and . .. it is therefore desirable that the agreement embodied therein
shali be confirmed by the two Governments in order that the actual
delimitation of the boundary may then be entrusted to a boundary
commission, appointed for the purpose in accordance with the pro-
visions of Article | of the Mandate”.

This passage is particularly helpful in shedding ight on the intention of
the signatory parties.

31. Nigeria argued that the Thomson-Marchand Declaration repre-
sented only an announcement of the procedure to be followed and of a
programme to be implemented.

32. Cameroon, on the other hand, accorded it the binding force of a
valid legal instrument.

33. It is readily apparent simply from reading paragraph 3 of the two
Notes that there was a will on the part of both parties, Great Britain on the
one hand, France on the other, to resolve the problem of the boundary of
their “possessions”, as they were called at that period. Thus in paragraph 3
the word “confirm” appears twice as does the word “agreement”. It seems
to me not unhelpful to quote paragraph 3, which reads as follows:

“His Majesty’s Government note that the French Government by
their note under reference confirm, for their part, the agreement
embodied in the Declaration; and I have the honour in reply to
inform Your Excellency hereby that His Majesty’s Government
similarly confirm this agreement.”

There was certainly an agreement, as the Court found.

34. In the course of oral argument, Nigeria eventually recognized that
the Declaration was an instrument which both Parties accepted. How-
ever, it noted that the Declaration contained defects which required more
than a simple process of demarcation. Nigeria enumerated 22 such defects,
which the Court examined in detail in paragraphs 86 to 192 of its Judg-
ment. I will not dwell on that.

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 513

35, One of Nigeria’s counsel claimed that the texts delimiting the fron-
tier were so badly drafted in a number of places that they could not be
regarded as instruments of delimitation, and that such delimitation
remained to be effected. Nigeria’s counsel stated that “the colonial bound-
ary agreements of the period 1906 to 1931 did nct produce a conclusive
delimitation in the Lake Chad region”. Counsel then listed 33 villages in
the Lake Chad region which he claimed were Nigerian, with the apparent
exception of one, said to be inhabited by Malian nationals.

The Court did not accept his claim.

C. Delimitation — demarcation

(i) General considerations

36. The Parties stressed the distinction between delimitation and
demarcation (para. 84 of the Judgment). This debate, looked at from a
viewpoint contemporary with the instruments applicable in the present
case, was rightly approached by the Court with caution. It gave a clear
definition (in the paragraph cited) of delimitation on the one hand and
demarcation on the other. But the important thing was to determine the
boundary between the two States. The Court did so without overstepping
its judicial role, confining itself to interpreting and applying the legal
instruments which delimit that boundary.

37. Thus it was for the Court in this case to interpret the Fleuriau-
Henderson Exchange of Notes and the Thomson-Marchand Declaration.
It performed that task successfully.

38. In my view, when the two authorities representing Great Britain
and France speak in their respective Notes of: “the actual delimitation
[délimitations proprement dites]”, what they mean is what in this case
the Parties finally agreed to call “demarcation”.

I believe that, on studying the abundance of detail contained in the
Thomson-Marchand Declaration, one is bound to reach that conclusion,
subject to the defects or “defective delimitations” cited by Nigeria.

39. Nigeria enumerated a number of such defective delimitations, as I
have already pointed out. The Court examined each of them and, through
reasoning based on law or on findings of fact, reached conclusions that I
will not venture to discuss here, even though some of them do not pre-
cisely correspond to those which I myself had reached. Once applied on
the ground, the consequence of choosing one solution rather than another
will, in any event, be relatively minimal.

(ii) The LCBC

40. As regards demarcation, according to Cameroon the Lake Chad
Basin Commission (LCBC) was charged with the task of undertaking the
demarcation of the boundary, although the Commission itself spoke of
delimitation (see Lagos Declaration of 21 June 1¢71).

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 514

41. According to Nigeria, the LCBC also undertook a true delimita-
tion, which of course, in logical terms, justified the Respondent’s position
that there had been no prior delimitation. And Nigeria stressed the fact
that the demarcation works did not bind it, sinc2 it had never accepted
their conclusions.

42. In its 1998 Judgment on the Preliminary Objections, the Court
described the LCBC’s task. In this regard, it speaks of demarcation.

43. Created in 1964, the LCBC became involved with the delimitation
of the boundary following incidents between Cameroon and Nigeria in
1983 in the Lake Chad region. The States concerned agreed to adopt as
working documents dealing with the “delimitation” of the boundaries in
Lake Chad “various bilateral treaties and agreements concluded between
Germany and Great Britain between 1906 and 1913”. The experts pro-
posed that the boundary as thus delimited “be demarcated”.

Thus the LCBC’s task was one of demarcation as the Court found
(LC.J. Reports 1998, pp. 305, 307 and 308, paras 65 and 70) in its Judg-
ment on Nigeria’s preliminary objections. This is reiterated by the Court
in paragraph 55 of the present Judgment, where it indicates: “The Court
observes that the LCBC had engaged for seven years in a technical exer-
cise of demarcation, on the basis of instruments that were agreed to be
the instruments delimiting the frontier in Lake Chad.”

D. Cartography

44. In the present case, there has been an outright battle of maps.

The old maps, in particular those used in the preparation of the Thom-
son-Marchand Declaration (especially the Moisel map), were heavily
criticized by Nigeria. One of its counsel charged that they contained
approximations and even errors, as well as gaps and contradictions.

45. Naturally, maps dating from 1919, 1930 or 1931 will inevitably
reflect the weaknesses of the contemporary techniques employed in their
preparation. But that is not a sufficient reason to reject en bloc the infor-
mation which they provide. Moreover, we should not forget what the
Court has said on maps in general:

“maps merely constitute information which varies in accuracy from
case to case; of themselves, and by virtue solely of their existence,
they cannot constitute a territorial title, that is, a document endowed
by international law with intrinsic legal force for the purpose of
establishing territorial rights. Of course, in some cases maps may
acquire such legal force, but where this is so the legal force does not
arise solely from their intrinsic merits: it is because such maps fall
into the category of physical expressions of the will of the State or
States concerned. This is the case, for example, when maps are
annexed to an official text of which they form an integral part.

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 515

Except in this clearly defined case, maps are only extrinsic evidence
of varying reliability or unreliability which may be used, along with
other evidence of a circumstantial kind, to establish or reconstitute
the real facts.” (Frontier Dispute (Burkina FasolRepublic of Mali)
LC J. Reports 1986, p. 582, para. 54; see also Kasikili/Sedudu Island
(Botswanal Namibia), C.J. Reports 1999 (iT), p. 1098, para. 84.)

However, in the present case, the Anglo-German Agreement of 1913
does accord a certain importance to the maps (see final provisions of that
Agreement).

E. Effectivités and legal title

46. The debate in the present case largely focused on the opposition
between legal title and effectivités.

(i) General considerations

47. In order to make good the alleged absence cf delimitation, Nigeria
invoked effectivités — effectivités which confirmed its historic title. To
illustrate its argument, it cited the occupation of Darak and the sur-
rounding villages by Nigerians, together with a whole series of other facts
which, according to Nigeria, clearly demonstrated the exercise of its sov-
ereignty in the part of the Lake Chad area which it claimed. Nigeria even
contended that there had been acquiescence on the part of Cameroon.

48. The Court addresses this issue at length in paragraphs 64 et seq. of
its Judgment, stating clearly that: “any Nigerian e/fectivités are indeed to
be evaluated for their legal consequences as acts contra legem” (para. 64
of the Judgment).

The Court moreover rejected Nigeria’s argument as to alleged acqui-
escence on the part of Cameroon.

49. I can only approve such conclusions; in particular, the absence of
any acquiescence by Cameroon in the present case is quite clear. Acqui-
escence to an extension of sovereignty over a portion of the national ter-
ritory of a State requires a long period and a clear and unequivocal
voluntary acceptance, which is not the situation ir: the present case. The
circumstances in the Temple of Preah Vihear and El Salvador! Honduras
cases were different from those in the Cameroon v. Nigeria case.

50. Neither during the colonial period, nor during the periods of Man-
date and Trusteeship, nor since independence, has there occurred any
consent by Cameroon which would enable those areas to be considered
as forming part of Nigeria.

51. Evidence of the absence of acquiescence is indeed provided by the

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 516

very existence of the LCBC, of its work and of the way in which the two
Parties continuously collaborated in the exercise of the functions con-
ferred upon it by the countries involved. In this regard, it makes no dif-
ference that Nigeria subsequently refused to associate itself with the
LCBC’s conclusions.

52. In any event, the Court rightly affirmed tha: where there is a legal
title (and in this case there is a legal title), that title must prevail over
effectivités. The Chamber in the Frontier Dispute ‘Burkina FasolRepub-
lic of Mali) case forcibly restated this in regard to uti possidetis juris.

53. In this connection, note should be taken of the very interesting
passages of the Court’s Judgment (paras. 65 et seg.) in which it addresses
the highly controversial theory of the “historical consolidation of title”,
observing that:

“nothing in the Fisheries Judgment suggests that the ‘historical con-
solidation’ referred to, in connection with the 2xternal boundaries of
the territorial sea, allows land occupation to prevail over an estab-
lished treaty title”.

54. I consider it unnecessary to add to the length of this opinion by
enlarging on what the Chamber said in the Frontier Dispute (Burkina
FasolRepublic of Mali) case. I agree with the Court that the effectivités
in the present case cannot prevail over legal title. In this regard, the
Chamber took up a position which permits of no ambiguity:

“Where the act corresponds exactly to law, where effective admin-
istration is additional to the uti possidetis juris, the only role of
effectivité is to confirm the exercise of the right derived from a legal
title. Where the act does not correspond to the law, where the terri-
tory which is the subject of the dispute is effectively administered by
a State other than the one possessing the legal title, preference
should be given to the holder of the title.” (C.J. Reports 1986,
pp. 586 and 587, para. 63.)

55. The Court has adopted the same position in the present case.

In my view, as regards frontier disputes, the actual continuous and
peaceful display of State functions (which is not the case here) can serve
as the sound and natural criterion of territorial sovereignty.

That principle only holds good, however, on ccndition that “no con-
ventional line of sufficient topographical precision exists or if there are
gaps in the frontiers otherwise established, or if a conventional line leaves
room for doubt” (Reports of International Arbi‘ral Awards (RIAA),
Vol. II, p. 840; Revue générale de droit international public, pp. 165-166,
cited in 1. C.J. Reports 1999 (IT), separate opinior of Judge Kooijmans,
p. 1146, para. 14).

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 517

Qi) The Nigerian villages in Lake Chad

56. I now come to the question of the so-called “Nigerian” villages in
the Lake Chad region. I will not go back over what counsel for Cam-
eroon have already said about these villages, in particular their relatively
recent character, moreover emphasized by the Court in the present Judg-
ment (para. 65), and their establishment following the retreat of the
shores of Lake Chad.

57. 1 would simply mention an issue, already r:ferred to in passing in
my general considerations, on which the Parties cid not enlarge, namely
that of the nationality of villagers settled beside, o: straddling, an African
boundary. This is a phenomenon that we find all over the continent. In
settling under such circumstances, the villagers in question have no sense
at all of doing so in pursuance of a national identity, with which efforts
have only been made to imbue them for just over 40 years, but because it
is a custom in Africa to ignore linear boundaries, which are a foreign
importation, especially when men and women of the same ethnic origin
live on the other side. Moreover, as counsel for Nigeria pointed out in
oral argument, “the villages move with the water’.

This is in all likelihood what has occurred in the case of the Nigerian
villages along the shore of Lake Chad, whose surface has varied consid-
erably over the years in the form of a marked recession of the waters
(para. 58 of the Judgment).

58. By the same token, we find in Gambia v'ilages of Wolofs from
Senegal and vice versa. Often what counts is ethrucity and not national-
ity, which is a recent notion in Africa. One of Nigeria’s counsel recog-
nized that among the Lake Chad villages there is one said to be
Malian — a point which speaks for itself.

59. In the case concerning KasikililSeduau Island (Botswanal
Namibia), the Court had to deal with the problem of the Masubia, who
had settled on the island in dispute, and of whom the Court said “the
activities of the Masubia on the Island were an independent issue from
that of title to the Island” (C.J. Reports 1999 (IT), p. 1106, para. 98).
The existence of a colony of Nigerians in Lake Chad, to the east of the
border, has no bearing on the sovereignty of the territories where they
have been living. That is also a separate issue to that of the title to the
territory where those Nigerians are living.

F. Determination of the mouth of the Ebeji

60. The course of the boundary in Lake Chad raised a problem which
Nigeria opportunely highlighted. This problem represented an example
of the work of interpretation which Nigeria invited the Court to carry out
and which Cameroon accepted that it should do.

61. According to the Thomson-Marchand Declaration, the lake bound-
ary starts from a tripoint with co-ordinates 13°05” latitude north and
approximately 14°05” longitude east.

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LAND AND MARITIME BOUNDARY (SEP. DP. MBAYE) 518

It is also stated that the boundary runs in a straight line.

62. The problem arises in regard to the endpoint of that straight line.
The Declaration places this at the “mouth of the Ebeji” without indicat-
ing the exact co-ordinates. Unfortunately, this river now flows into Lake
Chad down two channels and not from a single mouth. Each Party
endeavoured to show that the mouth contemplated by the applicable
instrument now takes or should take the form of the channel that sup-
ported its respective arguments. Cameroon opted for the western channel
and Nigeria for the eastern one. The LCBC had found a compromise
solution which Nigeria did not accept.

63. The Court had to settle the problem thus posed and it did so.

The Court had to ascertain the intentions of the parties to the Declara-
tion and at the same time seek to place itself at the time when that Dec-
laration was signed. Such a solution was not totally adapted to the
present case. Eventually, based on the relevant fectors, the Court found
itself with three choices:

— to choose one of the two channels,
— to adopt the proposal of the LCBC, or
— to interpret the Declaration itself.

The Court favoured the latter solution. For my part, I would certainly
agree with that.

64, Addressing the concerns of Nigeria, which had spoken of the fate
and conduct of the “Nigerian” inhabitants if the territories which it
claimed were to be recognized as belonging to Cameroon, the Court
acknowledged the undertaking by the Agent of Cameroon on behalf of
his country that the Nigerians remaining in Cameroon would continue to
live there under the same conditions as other persons of other nationali-
ties, just as occurs in other parts of Africa and indeed elsewhere. By
doing so the Court gave legal weight to this unilateral undertaking
invoked in the judicial debate. It was entitled to do so. It thus recorded
that undertaking as follows in the dispositif of the Judgment:

“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
area” (para. V (C)).

On this point we can observe that what is true for Lake Chad is equally
so for Bakassi.

2. Bakassi

65. Nigeria’s essential argument on the issue of Bakassi was that Great
Britain could not cede to Germany what did not belong to it. And
Nigeria then enlarged upon the theory of the existence in this region of

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 519

Kings and Chiefs whose territory could not be disposed of without their
consent. Nigeria recognized that these Kings and Chiefs inhabited the
territory of an “acephalous federation” rather than any form of regional
political subdivision. It nonetheless accorded them international person-
ality and relied for this purpose on a colonial treaty of 1884 (see C below)
and on a number of other arguments, including the nemo dat quod non
habet principle, which the Court examined in detail and to which I will
not return.

66. Nigeria’s argument against the 1913 Franco-German Agreement
further relied on its alleged non-opposability; but any such non-oppos-
ability would since have been made good by the conduct of the parties,
following that of the colonial Powers. But I shall return later to the
matter of the Kings and Chiefs of Old Calabar (ste D below).

Moreover, on the subject of whether Bakassi belonged to one Party or
the other, a number of key questions were raised that cannot be addressed,
in my view, without first considering the validity of colonial treaties.

A. Colonial treaties

(i) The validity of colonial treaties in general

67. Various treaties were signed in Africa between the colonial Powers
and the “kinglets” of the time, as they were called in the history books of
school children of my generation, not without a certain contempt which
numbers of Africans have remarked upon and deplored. In the Bakassi
Peninsula alone, the Agent of Nigeria counted 17 such treaties, on one of
which he focused as being a treaty under international law. This was the
Treaty of 1884 between Great Britain and the Kings and Chiefs of Old
Calabar. Such treaties were concluded by the dozen in the course of the
colonization from which Africa has so greatly suffered. This historical
reality is emphasized by the Court in paragraph 203 of its Judgment.
Their purpose was simply to serve the “dismemberment” decreed against
Africa at the Berlin Conference or earlier.

68. In sub-Saharan Africa, the sole purpose of the protectorates which
resulted from the colonial treaties was to create a system of indirect
administration. They could be distinguished from treaties of protection
which were international in character. The kings and chiefs in the admin-
istrative divisions formed by the villages, districts and provinces took
over the duties of the colonizers. Such situations were not unusual and
could hardly be said to attribute any real personal power to these local
authorities. Thus in Senegal such kings and chiefs collected taxes, admin-
istered justice, took censuses, etc. They still exist ir. certain countries with
or without power. In Senegal a statute gave them their quietus.

69. Such “colonial treaties” protected the inhabitants and the territory
where they lived against other colonial Powers, basically, and quite
simply for the benefit of the European signatory. In the present case the

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 520

treaties involved were indeed colonial protectorate treaties or treaties of
protection.

70. The Court described them as having been ‘entered into not with
States, but rather with important indigenous rulers exercising local rule
over identifiable areas of territory” (para. 205 of the Judgment).

This is a disguised way of saying that they were “colonial treaties”.

71. What view should be taken of colonial treaties?

Thus the agreements or treaties signed in sub-Saharan Africa before or
after the Berlin Conference by the colonizing States with the numerous
“kinglets” (as they were called) were simply intended to warn the other
colonial Powers that specific parts of the black con‘inent were now a pos-
session falling within the zone of influence of a given European State.
Thus, the General Act of the Berlin Conference (Chap. VI, Art. 34) pro-
vides: “The Power which henceforth shall take pcssession of a territory
upon the coast of the African continent situated outside of its present
possessions . . . shall accompany the respective act with a notification
addressed to the other .. . Powers...”

That is true not only of Nigeria and Cameroon but of everywhere else
in Africa. Such treaties of protection of the kind cited by counsel for
Nigeria were signed by the dozen. The Court itself has pointed this out in
its Judgment. They had no validity in international law. To accord them
such validity now would be to open a Pandora’s box. The chiefs them-
selves had no precise idea of the territorial boundaries of the areas which
they governed.

72. The problem here is not to make a value jucgment today concern-
ing those rules and practices but rather, in the context of intertemporal
law, to take note of them. The Court does not have the authority to
revise international law. It is not entitled to assess the practices of past
times, still less to rely on such assessment in support of a decision. The
Court should simply, where necessary, note the characteristics and rules
of the various phases in the development of international Jaw in order to
interpret it and apply it to the facts of the period in question.

73. It should be recalled that the notion of a linear frontier is not an
African one. It was imported into the continent by the colonial Powers.
That does not mean to say that human groupings in pre-colonial Africa
placed no reliance on boundaries. But these were natural: rivers, moun-
tains, forests, etc. The black African concept was one of tribes and ethnic
groups with their chiefs, “wherever they [were] to be found”, as Nigeria’s
Agent put it. The power of the chief was exercised over subjects and to
some extent over villages or townships. When histcrians speak of African
kingdoms or empires what is very often actually meant is groupings of
settlements whose inhabitants acknowledged the sizerainty of a particu-
lar king or chief.

74. Moreover, the colonial treaties in question were rarely signed by
the duly authorized representatives of the colonial State. Often, those
who signed them were explorers, merchants, navigators, sometimes
junior military officers. But these treaties which they signed enabled the

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 521

colonial State whose nationals they were to dispose of the areas con-
quered, explored or simply visited pending their annexation pure and
simple. This word “annexation”, with its ambiguous meaning given the
distance from the countries in question, was a convenient way of reflect-
ing the colonizers’ right to dispose of the territory concerned, the terri-
tory in their “possession” (to employ the term found in the General Act
of the Berlin Conference). It is on this basis that Professor Pierre-
Francois Gonidec states in the Encyclopédie juridique de I’ Afrique on
page 24 of Volume II: “the annexed territories became an integral part of
the territory of the colonial State. In consequence, the latter had a free
right of disposal over them and could cede them to foreign States accord-
ing to its political needs”. And Gonidec continues by giving an example:
“thus we have the 1911 Agreement involving a swap between Germany
and France in Equatorial Africa and Morocco”.

This statement by one of the greatest experts in African law applies
very well to our case. Gonidec adds, moreover: “there was only one Gov-
ernment left, that of the metropole, subject to some form of delegation to
local representatives of the central Power or to the use of traditional
chiefs as auxiliaries of the colonial Power”.

It was this situation that Nigeria invoked in support of its position.
The system of indirect rule, for which there were many reasons, was
employed everywhere in Africa.

75. Finally, I cannot resist the temptation to cite one more passage
from Gonidec:

“In international terms, the annexed countries lost all personality.
In truth, they were considered never to have been legal persons
(since they were not recognized as having the status of States). How-
ever, those carrying out colonial conquest agreed to enter into agree-
ments called ‘treaties’ with African authorities . . . and this implied
that African countries did have international personality. Subse-
quently, however, some legal experts maintained that in reality these
were not genuine treaties but mere agreements under internal law,
basing this argument on the fact that they had not been concluded
between independent States. This enabled those pseudo-protector-
ates to be easily annexed (generally by mere decree).” (Emphasis
added.)

Colonial delimitation treaties were subsequently rehabilitated.

(ii) Specific value of colonial delimitation treaties

76. I wish to return once more to the question of the respect for colo-
nial boundaries.

77. As has already been said, the countries of Africa, meeting in Cairo
in 1964, adopted resolution AGH/Res.16 (1), under which: “all Member
States [of the Organization of African Unity] pledge themselves to respect
the frontiers existing on their achievement of national independence”.

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LAND AND MARITIME BOUNDARY (SEP. O?. MBAYE) 522

78. The Parties agreed that this principle, which they called uti possi-
detis juris, was applicable to the present case. The Court did not see fit to
have recourse to it. I regret that.

This principle clearly means that Nigeria could 1ot challenge today a
boundary which existed for 47 years before its independence and which
Nigeria itself unequivocally accepted as the bouncary between its terri-
tory and that of Cameroon from 1960 to 1977.

If one were not to accept this, what would be the purpose of the prin-
ciple of respect for colonial boundaries? If we refer to paragraphs 19
to 26 of the Court’s Judgment in the Frontier Dispute case, we can clearly
see the importance attached by Africa, and by the Court too, to the prin-
ciple.

The Chamber stated:

“Although there is no need, for the purposes of the present case,
to show that this is a firmly established principie of international law
where decolonization is concerned, the Chamter nonetheless wishes
to emphasize its general scope, in view of its exceptional importance
for the African continent and for the two Parties” (C.J. Reports
1986, p. 565, para. 20);

and continued:

“Tt is a general principle, which is logically connected with the
phenomenon of the obtaining of independenc:, wherever it occurs.
Its obvious purpose is to prevent the independence and stability of
new States being endangered by fratricidal struggles provoked by the
challenging of frontiers following the withdrawal of the administer-
ing power.” (Ibid. }

79. When African States speak of uti possidetis ,uris, they employ the
phrase “intangibility of colonial frontiers”. These words best reflect their
common view. Of course it would be unreasonable to conclude from this
that frontiers are immutable. They can certainly be modified, not by
invoking their technical defects but only in accordance with the rules of
international law — in other words, by mutual agreement or by judicial
decisions. In the latter case, the forum seised of the matter must confine
itself to interpreting the instruments determining the boundary and must
not rewrite them. In other words, it may remedy material defects but not
alleged legal errors. Two cases illustrate this point. The case of the mouth
of the Ebeji (a material defect) and the case of the “Nigerian” villages of
Lake Chad (an alleged legal error). This second case would involve a
legal rectification. The same applies to the historical consolidation
invoked by Nigeria in respect of Bakassi. The Court does not have a
power of rectification. A court cannot change a clear provision. That
would exceed its power.

80. My general conclusion on the dispute is the same as that of the

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LAND AND MARITIME BOUNDARY (SEP. GP. MBAYE) 523

Court: there is indeed a boundary between Nigeria and Cameroon. That
boundary derives from the following instruments:

— the Thomson-Marchand Declaration,
— the 1913 Agreements,
— the Order in Council of 1946.

Any other decision would have represented an a:tempt by the Court to
change the law so as to make it coincide with what it regarded as being
normal and fair and consistent with the reality on the ground. That
approach is possible in intellectual and political terms. But the Court
states the law. It has a jurisprudence, which it is bound to respect and
which it is not entitled to change save in case of absolute necessity and on
the basis of sound legal reasoning. That is not the case here.

81. In this respect, it will be recalled that, in relation to an alleged
“clash” of new declarations of acceptance of the compulsory jurisdiction
of the Court with declarations already existing, Nigeria was perfectly well
aware of the Court’s established jurisprudence on this question; but what
Nigeria wanted was in essence that the Court shold change what actu-
ally existed. The Court did not agree to follow that route. It remained
firm to its jurisprudence. The Court’s mission is to contribute to the
establishment of peace by applying the law. That law must be applied in
all cases.

82. Returning to my general conclusion in the present dispute, it
should be noted that in the Encyclopédie juridique de Afrique, in Vol-
ume 1] dealing with “international law and interna:ional relations”, there
is a chapter devoted to “national territory”. That chapter was written by
Professor Chemillier-Gendreau and Mr. Dominique Rosenberg. In para-
graph (2), entitled “the case-by-case situation between African States”,
there is a subheading “C” entitled “the boundaries between Cameroon
and Nigeria”.

I should like to quote what the Encyclopaedia has to say:

“On 12 July 1884, the territories of Camercon became a German
Protectorate and that was notified to the other Powers on 15 Octo-
ber 1884. On 5 June 1885 a British Protectorate, initially called the
Oil Rivers Protectorate and then the Niger Coast Protectorate, was
established to the west of that of Cameroon . . . [These two posses-
sions] were definitively delimited by the Agrzements of 11 March
and 12 April 1913.” (Encyclopédie juridique de l'Afrique, p. 76.)

Later in the same text we read the following:

“Thus the boundary runs from Lake Chad up to the River Gamana
on the basis of the above-mentioned agreements of 1931, with the
subsequent transverse section of the boundary from the River
Gamana to Mount Kombon being a British colonial boundary
which became the international boundary a'ter the plebiscites of
1961.” (bid, p. 77.)

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 524

The authors then summarized the situation as follows: “Thus from the
River Gamana to the Cross River, then to the sea, the boundary is that
laid down by the Anglo-German Agreements of 11 March 1913.” (Ency-
clopédie juridique de l'Afrique, p. 76.)

83. This is the lake and land boundary as derived from the law rather
than from faits accomplis. The conclusion reached by the Court confirms
this. As it says, “Bakassi is Cameroonian”. And this is indeed what
was said by one of Africa’s greatest jurists — who also happens to be
Nigerian. The letter produced to the Court in which he states that
Bakassi belongs to Cameroon is a fact which the Court had in its
possession, even though it reframed from relying on it.

Having discussed the colonial treaties, I will turn now to two issues
related to such treaties: the 1884 Treaty and the question of the Kings
and Chiefs of Old Calabar.

B. Legal force of the 1884 Treaty

84. The Treaty of Protection of 1884 between Great Britain and the
Kings and Chiefs of Old Calabar resembles a great many other agree-
ments establishing a colonial protectorate of the kind described below by
Sibert. Its legal force is the same, as can be seen from a reading of the
extract provided by counsel for Nigeria.

85. Great Britain was not bound, in terms of the contemporary prac-
tice, by the adage nemo dat quod non habet, for the good reason that the
territory whose boundaries it had agreed to determine jointly with another
colonial Power had been “annexed” by it. How could it have been
required to be bound by this adage, given that Ge-many itself was under
no obligation to comply with the terms of a “treaty” of whose very exis-
tence it may well have been entirely unaware. In ary event, Germany was
protected by the well-known rule regarding the relative effect of
treaties (res inter alios acta).

86. The Parties did not place any emphasis or the treatment of this
question in the Arbitral Award concerning the I:land of Palmas (non-
opposability to the Dutch Government of the Spanish-American Peace
Treaty of 10 December 1898 ceding to the United States the Philippines
and its dependencies, including the Island of Palmas, occupied since 1677
by the Netherlands (R/A A, Vol. V, pp. 471-473)), cespite the fact that the
Award was quoted in extenso by counsel for Nigeria.

87. The Court could not simply place a parenthesis around that part
of the 1913 Agreement which relates to Bakassi, on the sole ground that
the “City States belonging to the Kings and Chiefs of Old Calabar” were
covered by it.

It followed that Nigeria’s argument based on “historical consolidation
of title” was bound to fail here, as it did in the Lake Chad region.

Thus it was to the instruments of 1913 that the Court had to look in
order to determine the course of the boundary in “he present case, inter-
preting or clarifying them as required.

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 525

88. Moreover, as I have already indicated, I believe we should avoid
involving ourselves too much in the semantic controversy as between
“delimitation” and “demarcation”. The essential les in what the Parties
asked of the Court in pursuance of its task of adjudication: to determine
the boundary between the two States concerned, in accordance with its
Statute.

C. The question of the Kings and Chiefs of Old Calabar

89. There were a certain number of us, in particular before the accession
of African States to independence, who fought against the doctrinal notions
of “terra nullius” or “absence of sovereignty” which had served as a pre-
text for colonization. Our struggle was a political one. African historians
came to the rescue of the politicians in order to restore the dignity of the
African kings and chiefs and to re-establish the truth about the past.

90. African kings and chiefs were indeed the lawful representatives of
their subjects. However “they governed not the land but the people”
(Encyclopédie juridique de l'Afrique, Vol. 2, pp. 68-69). Counsel for
Nigeria stated as much.

91. Before the acts of independence of the 1960s (and still today) it
was and is necessary to correct the mistakes of a betrayal of history. Afri-
can leaders were very well aware of this when their countries acceded to
independence; they urged it. But in 1964 they preferred to align them-
selves not with historical truth but with the law, in Jecreeing that colonial
boundaries should not be touched. They thus closed the road to any
secessionist notions. That is why, when Biafra defied the principle in
1967, they united behind Nigeria in order to fight the secessionists.

92. What of the colonial protectorates?

According to Max Huber (sland of Palmas case):

“it is not an agreement between equals; it is rather a form of internal
organisation of a colonial territory, on the basis of autonomy for the
natives. .. And thus suzerainty over the native State becomes the
basis of territorial sovereignty as towards other members of the com-
munity of nations” (RIAA, Vol. IT, p. 858; Kevue générale de droit
international public, Vol. XLII, 1935, p. 187).

Once again, it is not a matter of casting a value >udgment on rules that
prevailed in the late nineteenth and early twentieth century, but of noting
with due objectivity what they meant at the time. Colonial protectorates
do not generally meet the criteria of statehood (see Bengt Brons in Jnter-
national Law — Achievements and Prospects, Vol. 1, p. 54).

Colonial protectorates are described by Marcel Sibert as follows: “a
Power sought to extend its exclusive right of action over ‘non-civilized’
countries . . . which it did not wish to annex immediately as colonies”
(Traité de droit international public, Vol. I, p. 157, para. 111).

One is entitled to disagree with such a practice —- as I do personally —
and above all with the terms used.

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LAND AND MARITIME BOUNDARY (SEP. O?. MBAYE) $26

93. The fact remains that this was legally true o* entire territories and
even more so of townships under the influence of kings or chiefs, as well
as of other rules of which we disapprove today. This form of protection
had a purely personal value. The individual protected was the chief, even
if, through the misuse of language, the word “territory” was to be found
in the agreements. He was protected against his local rivals, against slav-
ery and against other disasters and above all his territory was protected,
and carefully delimited (sometimes on the basis of gunshot range as in
Gambia), against other colonizers. When the General Act of the Berlin
Conference speaks of the “possessions” of the “signatory Powers”, it
makes no distinction between those Powers which had acquired posses-
sions and those which had taken on protectorates.

The foregoing remarks apply to the Kings and Chiefs of Old Calabar.

The questions posed by Judge Kooijmans in regard to these Kings and
Chiefs produced replies which were ambiguous, nat to say embarrassed,
and which confirm the above remarks, which have had a decisive effect
on the identification of the point where the boundary reaches the sea.

D. Terminal point of the boundary on the coast

94. The land boundary terminates at the sea.

It is surprising that Nigeria should have located this terminal point on
the Rio del Rey.

95. Cameroon pointed out that Nigeria sought to rely on prior nego-
tiations in order to make the Akwayafe disappear from the definition of
the boundary (despite more recent negotiations) and to replace it with the
Rio del Rey. But Nigeria could not do otherwise as long as it sought to
shelter behind the fragile screen of the Kings and ‘Chiefs of Old Calabar
in order to protect its position in regard to Bakassi. It fortified this screen
with the notion of “historical consolidation”, which could have no effect
on the legal title of Cameroon.

96. The boundary is clearly defined by the 1912 Agreements (the last
instruments accepted by the Parties and concluded by their colonial pre-
decessors). Both Parties agreed on this, if we leave out of account the
matter of the Kings and Chiefs of Old Calabar. Following the thalweg of
the River Akwayafe, it terminates at the midpoint of a line joining
Bakassi Point to King Point and it is from here thet the maritime delimi-
tation must start.

97. This is a reply to Nigeria’s eighth preliminary objection, which
moreover lost much of its force once it was accepted that the boundary
had been clearly delimited and that its endpoint on the coast was indeed
that indicated by the 1913 Agreement. This objection was also weakened
as regards its second limb by the fact that Equatorial Guinea intervened
in the case, even if it did so, as was made clear by the Court, “without
being a party”, as it was perfectly entitled to do.

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 527

98. It is true that Nigeria contended that the Yaoundé II and Maroua
Agreements did not indicate the starting point of the dividing line between
the two States’ maritime areas as being situated at the “mouth” of the
Akwayafe.

99. But this argument is contradicted by the negotiations between the
two countries, which referred to the 1913 Agreement, and by British
Admiralty Chart No. 3433, which served as the basis for those Agree-
ments, and on which the Heads of State of Cameroon and Nigeria
marked a line and appended their signatures.

SECTION 3. THE MARITIME BOUNDARY

100. As regards the maritime boundary, the Court had to address the
request by Cameroon “for the tracing of a precise line of maritime
delimitation”. In support of that request, Cameroon had produced an
equitable line.

101. The most important issue in regard to the determination of the
maritime boundary concerned the Maroua Declaration, whose validity
was challenged by Nigeria, its importance being emphasized by the Court
in the following terms:

“If the Maroua Declaration represents an international agreement
binding on both parties, it necessarily follows that the line contained
in the Yaoundé II Declaration, including the co-ordinates as agreed
at the June 1971 meeting of the Joint Boundary Commission, 1s also
binding on them.” (Para. 262 of the Judgmert.)

1. The Maroua Declaration

A. Identification of the problem

102. As regards the question of whether or not negotiations had taken
place, and as the Court had already pointed out when examining
{Nigeria’s] seventh preliminary objection,

“it ha[d] not been seised on the basis of Article 36, paragraph 1, of
the Statute, and, in pursuance of it, in accordance with Part XV of
the United Nations Convention on the Law of the Sea relating to the
settlement of disputes arising between the patties to the Convention
with respect to its interpretation or application” (C.J. Reports
1998, pp. 321-322, para. 109).

The Court explained that

“[ilt ha[d] been seised on the basis of declarations made under
Article 36, paragraph 2, of the Statute, which declarations do not
contain any condition relating to prior negotiations to be con-
ducted within a reasonable time period” (ibic!., p. 322, para. 109).

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 528

The Court did nonetheless state that: “Cameroon and Nigeria entered
into negotiations with a view to determining the whole of the maritime
boundary” (1 C.J. Reports 1998, p. 322, para. 110) and that “[it was
during these negotiations that the Maroua Declaration relating to the
course of the maritime boundary up to point G was drawn up” (ibid. ).

We may conclude from these passages that there were indeed negotia-
tions between the two Parties with an undetermined geographical objec-
tive and that these negotiations resulted, up to point G, in an agreement
known as the “Maroua Declaration”.

That Declaration was regarded by Cameroon a: legally binding on the
two Parties, whereas Nigeria took the contrary view.

103. It should be recalled that Nigeria had raised an eighth prelimi-
nary objection. The Court joined that objection to the merits. Before
dealing with the maritime delimitation, it was necessary to settle the inci-
dental point raised by this eighth Nigerian objection. I have already
stated the Court’s finding above in respect of the ‘irst limb of that objec-
tion.

104. Nigeria also argued that the question of the maritime delimita-
tion between its territory and that of Cameroon -1ecessarily affected the
rights and interests of third States and that Cameroon’s claim in this
regard was accordingly inadmissible.

105. The Court had stated in its 1998 Judgmen: that this eighth objec-
tion “d{id] not have, in the circumstances of the case an exclusively pre-
liminary character” (1. C.J. Reports 1998, p. 326, operative para. 118 (2))
and took the view that it was thus required to decide how far beyond
point G it could extend the line separating the two Parties’ respective
maritime areas.

In very clear terms, the Court stated (para. 297 of the Judgment) and
repeated that “it [could] take no decision that might affect rights of
Equatorial Guinea, which [was] not a party to the proceedings” (para. 307
of the Judgment). On this point ! will make (infra, para. 136) an observa-
tion that I consider to be logical and fair.

106. The Court thus had to determine whether or not there was an
existing delimitation as far as point G. I think it is unnecessary for me to
emphasize the need to effect this delimitation without disassociating it
from the land delimitation, that is to say, to determine the starting point
on the coast for the maritime delimitation (see Nigeria’s eighth prelimi-
nary objection). The answer is obvious.

107. Nigeria insisted that this delimitation must take place after the
determination of its starting point on the coast. It subsequently moved
this point to the east to the Rio del Rey. But for over five years Nigeria
negotiated on the basis of a different point, situa:ed further to the west,
on the River Akwayafe.

108. In any event, the incidental issue was settled. The Court held that
the starting point for the maritime delimitation was the terminal point of

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LAND AND MARITIME BOUNDARY (SEP. CP. MBAYE) 529

the 1913 boundary on the line joining Bakassi Point and King Point. This
conclusion follows from what the Court decided as to the validity of the
1913 Agreement.

109. From that starting point as far as point 12, :he agreement between
the Heads of States which gave rise to the so-called “compromise line”
(Yaoundé If Agreement) had to be treated as having been definitively
accepted by the Parties. The compromise line was extended by a line as
far as point G. The Court regarded the line starting from the coast and
ending at point G as a legally established maritime delimitation.

From point 12 to point G, the delimitation is governed by a decision
known as the “Maroua Declaration”. That decision, as I have already
said, was regarded by Cameroon as an agreement binding on both
Parties, whereas Nigeria took the contrary view.

110. The Court settled the issue as to whether the Maroua Declaration
of 1 June 1975 was binding on both Cameroon and Nigeria. In its view:

“the Maroua Declaration constitutes an international agreement
concluded between States in written form and tracing a boundary; it
is thus governed by international law and constitutes a treaty in the
sense of the Vienna Convention on the Law of Treaties (see Art. 2,
para. 1), to which Nigeria has been a party since 1969 and Cam-
eroon since 1991, and which in any case reflects customary interna-
tional law in this respect” (para. 263 of the Judgment).

111. This conclusion, as pointed out earlier, applies ipso jure to the
Yaoundé IT Declaration.

112. Nigeria considered that the Maroua Declaration was tainted by
two defects and that it was not bound by it. It seems to me to be helpful
to return to this point.

113. First, Nigeria contended that President Gowon, who signed the
Agreement, could not bind his country without the consent of the
“Supreme Military Council”.

114. Secondly, Nigeria contended that the alleged agreement had been
neither ratified nor published.

I should like to address first the issue of ratification.

B. The question of the ratification of the Maroua Declaration

115. Nigeria took the view that the internal legal requirements in
regard to the ratification of the Declaration were not satisfied.

116. From a purely formal point of view, one is entitled to discuss, as
Nigeria did, the issue of whether or not the Maroua Declaration is a
treaty in the strict sense of the term. The Court settled that point.

117. But is it necessary for a declaration of the type in question to be
a treaty in the formal sense of the term in order to produce effects in the
circumstances of the present case? The Court has always answered such a

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 530

question in the negative. If the Maroua Declaration were to be dis-
regarded, that would be a serious precedent, which would certainly under-
mine the legal security which should govern relations between States,
in particular where those relations are established at the highest levels of
State authority. Under Article 7, paragraph 2 (a). of the Vienna Conven-
tion on the Law of Treaties, Heads of State are included among those
State authorities who are entitled to represent their countries “without
having to produce full powers”.

118. That is why I wholeheartedly agree with the Court’s decision that
“the Maroua Declaration, as well as the Yaoundé IT Declaration, have to
be considered as binding and as establishing a lega! obligation on Nigeria”
(para. 268 of the Judgment) as a result of the circumstances in which it
was adopted.

119. Many writers consider generally, without even relying on a cat-
egory of “agreements in simplified form”, as one of Cameroon’s counsel
did, that the ratification of treaties is not always necessary. In the present
case the Court, considering that “[b]Joth customary international law and
the Vienna Convention on the Law of Treaties leave it completely up to
States which procedure they want to follow”, observed that here the two
Heads of State had come to an agreement and further concluded that the
“Declaration entered into force immediately upon its signature” (para. 264
of the Judgment). À prime concern of writers, and with reason, is the
question of legal security in international! relations. In this regard Mar-
cel Sibert writes in his Traité de droit international public that:

“in the interest of morality and sincerity in international relations, in
the interest also of the effectiveness that one is entitled to expect of
States’ treaty-making activities, it is desirable that the Law of Nations
should continue to evolve in regard to ratification and finally to
abandon its extreme positions and to adopt the doctrine of the ‘juste
milieu’ that we have felt entitled to advocate” (Vol. IT, p. 230,
para. 904).

120. And what Sibert specifically recommends :s to apply Nicolas Poli-
tis’s proposition (quoted by Sibert) that: “under the new international
order. . . a tendency seems to be developing no longer to regard as abso-
lute and unconditional the right to refuse to ratily” (op. cit., p. 230).

C. The question of the powers of the Nigerian signatory of the Maroua
Declaration

121. The second defect alleged by Nigeria against the Maroua Decla-
ration is that President Gowon had no power to sign it, which amounts
to saying that the Agreement was void.

122. In the event of conflict between international law and domestic
law, it is the former which must prevail. And this is what the Vienna

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 531

Convention on the Law of Treaties does (see Sir Robert Jennings, in
International Law —~ Achievements and Prospects, pp. 65 and 166).

123. According to Article 27 of the Convention, “a party may not
invoke the provisions of its internal law as justification for its failure to
perform a treaty”.

This provision continues as follows: “this rule is without prejudice to
Article 46”.

Counsel for Cameroon accordingly drew attention to the pertinence of
Article 46 of the Convention in the present case.

He recalled that:

“I. A State may not invoke the fact that is consent to be bound
by a treaty has been expressed in violation of a provision of its inter-
nal law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any
State conducting itself in the matter in accordance with normal prac-
tice and in good faith.”

Counsel drew attention to the fact that any violation capable of invali-
dating the competence of President Gowon at the time must be “mani-
fest”, as Article 46, paragraph 2, cited above provides.

Counsel, after discussing the point at length, reached the conclusion
that President Gowon did indeed have the power to bind his country.

He added that, in any event, the alleged violation of the provision of
Nigeria’s internal law by President Gowon (if there was one) was far
from being “manifest”, given all the constitutional legislative or admin-
istrative changes that had taken place in regarc to the powers of the
Head of the Nigerian State, particularly between 1966 and 1978. He
emphasized that the complexity of the legislation in question was such
that it was unreasonable to expect President Ahidjo, co-signatory of the
Agreement, to be aware that his interlocutor, in signing the Maroua Dec-
laration and the final communiqué which accompanied it, was manifestly
violating a provision of internal Nigerian law.

124. As the Court noted: “there is no general legal obligation for States
to keep themselves informed of legislative and constitutional develop-
ments in other States which are or may become important for the inter-
national relations of these States” (para. 266 of the Judgment).

125. It follows from this that, without even addressing the issue of
ratification, the Court was entitled to hold that the Maroua Declaration
represented an obligation undertaken by both Parties and was accord-
ingly opposable to both of them. It duly did so, adding that:

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 532

“while in international practice a two-step procedure consisting of
signature and ratification is frequently provided for in provisions
regarding entry into force of a treaty, there are also cases where a
treaty enters into force immediately upon signature. Both customary
international law and the Vienna Convention on the Law of Treaties
leave it completely up to States which procecure they want to fol-
low” (para. 264 of the Judgment).

126. In the Court’s view, as we have already seen, what applies in
regard to the Maroua Declaration applies equally mutatis mutandis to
the Yaoundé IT Declaration.

2. The Maritime Delimitation beyona Point G
A. The Court's jurisprudence

127. As regards the maritime delimitation beyond point G, each of the
Parties expressed itself at length, as did Equatorial Guinea as intervener.
Cameroon even proposed a line separating the maritime areas of the two
Parties.

128. Nigeria and Equatorial Guinea criticized that line for various
reasons.

129. The Court applied the well-established principle that it has devel-
oped over the years.

130. As regards maritime delimitation for States with adjacent or
opposing coasts, “the legal rule is now clear”. This statement comes from
the speech given by the President of this Court on 31 October 2001 to the
Sixth Committee of the United Nations General Assembly. The rule,
which has emerged after a long period of maturation, applies both to the
territorial sea and to the continental shelf and the exclusive economic
zone.

131. The Parties in the present case wanted the boundaries of their
respective sovereignty or sovereign rights to be determined by a single
line.

Of course, as the President pointed out, “each case nonetheless remains
an individual one, in which the different circumstances invoked by the
parties must be weighed with care” (see the above-mentioned speech of
31 October 2001). The legal rule to which the President refers is the fol-
lowing:

“The Court must first determine provisionally the equidistance
line. It must then ask itself whether there £re special or relevant
circumstances requiring this line to be adjusted with a view to
achieving equitable results.” (bid. )

B. Special circumstances

132. As regards special circumstances, the Court considered whether
there were any such circumstances “that might make it necessary to

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 533

adjust [the] equidistance line” that it had drawn “in order to achieve an
equitable result” (para. 293 of the Judgment). What first comes to mind
in the present case is the concavity of the Gulf of Guinea and of Cam-
eroon’s coastline. Bioko Island is also a factor here. As the Court stated
in the Continental Shelf (Libyan Arab Jamahiriyal Malta) case:

“the equidistance method is not the only method applicable to the
present dispute, and it does not even have the benefit of a presump-
tion in its favour. Thus, under existing law, it must be demonstrated
that the equidistance method leads to an equitable result in the case
in question.” (1 C.J. Reports 1985, p. 47, para. 63.)

The Court referred to “the concavity of the Gulf of Guinea in general,
and of Cameroon’s coastline in particular” (para. 296 of the Judgment).
Cameroon, in the words of the Court:

“contends that the concavity of the Gulf of Guinea in general, and
of Cameroon’s coastline in particular, creates a virtual enclavement
of Cameroon, which constitutes a special circumstance to be taken
into account in the delimitation process.

Nigeria argues that it is not for the Cour: to compensate Cam-
eroon for any disadvantages suffered by it as a direct consequence of
the geography of the area. It stresses that it is not the purpose of
international law to refashion geography.”

As regards the presence of Bioko Island (para. 298 of the Judgment),
the Court stated:

“Cameroon further contends that the presence of Bioko Island
constitutes a relevant circumstance which should be taken into
account by the Court for purposes of the delimitation. It argues that
Bioko Island substantially reduces the seaward projection of Cam-
eroon’s coastline.

Here again Nigeria takes the view that it is not for the Court to
compensate Cameroon for any disadvantages suffered by it as a
direct consequence of the geography of the avea.”

However, the Court refrained from affording any effect to these two
circumstances.

133. For my part, I regret this. It is desirable in maritime delimitation
(the result of which has to be equitable) that any circumstance capable of
contributing to that goal should be regarded as relevant.

134. The Court stresses that: “delimiting with à concern to achieving
an equitable result, as required by current international law, is not the
same as delimiting in equity” (para. 294 of the Judgment).

This principle cannot be disputed, even though it differs slightly from
what the Court stated with a certain subtlety in the North Sea Continen-
tal Shelf cases (1 C.J. Reports 1969, p. 22, para. (8).

135. For my own part, subject to the above-mentioned observation, I

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 534

believe that the Court has applied its jurisprudence. Up to a certain
point, the Court has confined itself, as it had already done in the Tunisial
Libya case, to indicating a direction rather than drawing a finished line.
This was required in view of the rights of third States.

136. In this respect, it should however be noted that, in promulgating
a decree determining the limits of its sovereign rights, Equatorial Guinea
gave an indication of its legal interests. In so doing, it was well aware that
the maritime area in this part of the Gulf of Guinea belonged to three
States, Nigeria, Cameroon and itself, since it had already recognized that
between these three countries’ respective areas there was a tripoint (even
if the location of that point had not yet been determined). That decree
could have been amended by Equatorial Guinea by the same unilateral
means. It preferred to have recourse to a treaty with Nigeria. The legal
result is the same. That treaty thus amended the decree. Some protection
is admittedly afforded by the relative effect of treaties. Nonetheless, the
treaty does have the effect of modifying the claims of Equatorial Guinea
in the same way as an internal act of that State would have done. In con-
sequence, Equatorial Guinea was not entitled to argue before the Court
that in relation to another State its claims remained those which had been
indicated by decree. Such a position is illogical ir my view.

It follows from this that, as regards the course of the line, the Court
was not circumscribed by the limit laid down ty Equatorial Guinea’s
decree but rather by the treaty signed by Equatorial Guinea with Nigeria
in the year 2000.

137. As regards the relevant circumstances, it is quite clear that Cam-
eroon has not been blessed by nature and that it is not for the Court to
rectify that. But that should not prevent the Court from pursuing the aim
of achieving an equitable result in the delimitation to be effected by it.
Achieving an equitable result is not the same as delimiting in equity. That
is not at issue. But the notion of an equitable result is only a legal one
inasmuch as it is used in international law. The result of its application is
no different for a delimited area rather than “a previously undelimited
area” (1 C.J. Reports 1969, p. 22, para. 18). This means that after it has
carried out the delimitation, the Court is required to ask itself: “is the
result we have reached equitable”? The rest is siraply a matter of subtle
reasoning.

And in response to that question, I do not believe, in view of the
circumstances that for my part I regard as relevant but that the Court
preferred to ignore, that the answer must inevitably be “yes”.

SECTION 4. RESPONSIBILITY

138. The issue of responsibility was considered by the Court under
the twin heads of Cameroon’s reparation claim and Nigeria’s counter-
claim.

139. In its submissions at the close of its oral argument, Cameroon

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 535

requested the Court to find that Nigeria had violated the fundamental
principle of uti possidetis, as well as its legal obligations regarding the
non-use of force against Cameroon and compliance with the Court’s
Order of 15 March 1996 indicating provisional measures. It asked the
Court to find that Nigeria’s responsibility was engaged by these wrongful
acts and that reparation was due to it on this account.

140. On the basis of those allegations, Cameroon requested inter alia a
declaration that Nigeria must put an end to its presence, both civil and
military, on Cameroonian territory, and in particular that it must forth-
with and unconditionally evacuate its troops from the occupied area of
Lake Chad and the Bakassi Peninsula and that it must refrain from such
actions in the future.

Cameroon further pleaded the absence of any circumstances capable of
precluding the wrongfulness of the acts imputed by it to Nigeria.

141. Nigeria did not accept Cameroon’s positicn on responsibility. In
its final submissions, Nigeria argued that Cameroon’s State responsibility
claims, even if admissible, were in any event unfounded and must be dis-
missed.

Nigeria did not confine itself to rebutting Cameroon’s charges against
it. It considered that Cameroon bore responsibility for the acts set out in
its Counter-Memorial and Rejoinder, and claimed reparations on that
account.

142. The Parties’ formal submissions give a move precise indication of
their claims and defences in terms of responsibility and reparations.

I will simply confine myself here to a few observations.

143. It is for the Court to verify the merits of claims for reparation.
Availing itself of this power, the Court considered that its order for the
withdrawal of the administration and of military or police forces suffi-
ciently addressed the injury caused by the Nigerian occupation and that
in consequence it would “not therefore seek to ascertain whether and to
what extent Nigeria’s responsibility to Cameroon ha[d] been engaged as a
result of that occupation” (para. 319 of the Judgment). By this decision,
the Court did not state that Nigeria was not responsible. It moreover
indicated (para. 64 of the Judgment previously cited): “any Nigerian
effectivités are indeed to be evaluated for their legal consequences as acts
contra legem”.

144. Moreover, in accordance with a well-established rule of pro-
cedure, it is of course for each party to prove the facts which it alleges.
The Court therefore had to ensure that this requirernent had been properly
met. The Court did so with regard to the incidents for which the Parties
held each other responsible. It was entitled to do so. Nigeria contended
that, in any event, its actions were covered by self-defence or by other
circumstances precluding any wrongfulness (para. 321 of the Judgment).

145. Cameroon considered that its territory Fad been invaded and
occupied and that such occupation had occurred by force without its con-
sent, which constituted a violation of Nigeria’s international obligations.

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 536

146. Nigeria contended that it was present in good faith in areas which
it regarded as forming part of its territory and that, on the contrary, it
was Cameroon which had made incursions and created incidents, thus
rendering itself responsible for a certain number of acts which had
injured Nigeria and on account of which it claimed reparation.

147. It is appropriate to recall the view of Eduardo Jiménez
de Aréchaga and Attila Tanzi (in International Law — Achievements and
Prospects, Vol. I, p. 369) that, once there has been a breach of an inter-
national obligation and consequent injury to a Siate, the State having
suffered the injury is entitled to claim reparation from the State respon-
sible.

148. The Court preferred to dismiss any claim for reparation, consid-
ering that “Nigeria is under an obligation in the present case expedi-
tiously and without condition to withdraw its administration and its mili-
tary and police forces from that area of Lake Chad which falls within
Cameroon’s sovereignty and from the Bakassi Peninsula” (para. 314 of
the Judgment). It adds:

“In the circumstances of the case, the Court considers moreover
that, by the very fact of the present Judgment and of the evacuation
of the Cameroonian territory occupied by Nigeria, the injury suf-
fered by Cameroon by reason of the occupation of its territory will
in all events have been sufficiently addressed. The Court will not
therefore seek to ascertain whether and to what extent Nigeria’s
responsibility to Cameroon has been engaged as a result of that
occupation.” (Para. 319 of the Judgment.)

149. With regard to the other facts invoked by the Parties, it con-
cludes:

“The Court finds that, here again, neither of the Parties suffi-
ciently proves the facts which it alleges, or their imputability to the
other Party. The Court is therefore unable to uphold either Cam-
eroon’s submissions or Nigeria’s counter-claims based on the inci-
dents cited.” (Para. 324 of the Judgment.)

While this solution is certainly correct in law for the reasons that I
have set out above, yet, when the facts of the case are examined, one can
only conclude that Nigeria did indeed commit unlawful acts. For this rea-
son I find it somewhat regrettable that Cameroon’s claims for reparation
have not been satisfied, precisely because it has been granted exclusive
sovereignty over certain areas of the Lake Chad region and of Bakassi
that Nigeria has been occupying, notwithstanding the protests of the
egitimate sovereign and in full awareness of the law governing its borders
with Cameroon, since it disputed the titles on which that law is founded
by invoking effectivités bearing the hallmark of fa:ts accomplis.

150. All that remains to be said, in my humble opinion, is that the
Court has rendered a Judgment based on sound reasoning which I am
sure will alleviate the concerns aroused in Africa by this dispute between

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LAND AND MARITIME BOUNDARY (SEP. OP. MBAYE) 537
Cameroon and Nigeria, familiar even to the man in the street as the
Bakassi case. The Judgment will contribute to the establishment of peace
between two brother countries of Africa and throughout the region.

(Sizned) Kéba MBAYE.

238