538

DISSENTING OPINION OF JUDGE AJIBOLA

Introduction — Lake Chad — Lake Chad and the work of the LCBC —
Delimitation and demarcation — Lake Chad Basin: effectivités and historical
consolidation — Bakassi Peninsula — Severability of Articles XVIII-XXII of
the Agreement of 1913 — The 1884 Treaty — Historical consolidation and
effectivités in Bakassi — The question of legal title — Maritime delimitation —
Maroua Declaration — State responsibility — Conclusion.

INTRODUCTION

1. The Court, notwithstanding the unusually large request of Cam-
eroon’s Applications has comprehensively dealt with all the submissions
presented to it by the Parties. However, I am compelled to write this dis-
senting opinion because it is difficult for me to agree with some of the
Court’s decisions. There are five main sectors involved in this case, Lake
Chad, the land boundary, Bakassi Peninsula, maritime delimitation and
the issue of State responsibility. I have no difficulty in accepting and
voting in favour of the Court’s decision on State responsibility (although
my separate view on this will be stated later), some aspects of the maritime
delimitation and land boundary. My dissenting opinion will therefore
centre on the Court’s decision as regards the issue of sovereignty over the
Bakassi Peninsula and the delimitation of Lake Chad. But before dealing
with these points, I intend to touch upon certain issues regarding the
genesis of the case, the function of the Court and some general observa-
tions about the Judgment.

2. This is a unique case for many reasons; first, because of the unusu-
ally large claim filed by the Applicant, secondly because it is a claim deal-
ing with maritime and land boundary issues at the same time, and thirdly
because, apart from the request for land and maritime delimitation, there
is also the request involving State responsibility against Nigeria. It is also
a case that has taken over eight years before the Court, involving appli-
cations for interim measures, jurisdiction and admissibility, and the inter-
vention of Equatorial Guinea on maritime delimitation.

3. On both sides of the boundary, it cannot be denied that incidents
involving serious clashes and hostilities have occurred in recent times. On
the other hand, a series of efforts have been made to resolve this bound-
ary dispute between the Parties at regional and international levels. It can
therefore be said that the situation on the ground is volatile and explo-

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sive. Added to all this is the fact that Cameroon declared that there
are over three million Nigerians in Cameroon. There are about 150,000
Nigerians living in the Bakassi Peninsula alone. In a situation of this
nature and in a case of this kind, what is supposed to be the function
of the Court? The Court must primarily concern itself with its judicial
function and decide the Applications before it in accordance with its
Statute and with principles of international law.

4, At the same time, the Court must constantly remind itself of its
position and obligations as a principal organ of the United Nations
(Art. 7, para. 1, of the Charter). The Court must therefore ensure that it
has a cardinal duty to encourage, by its judgments, all member States of
the United Nations to “refrain in their international relations from the
threat or use of force against the territorial integrity or political inde-
pendence of any State, or in any other manner inconsistent with the Pur-
poses of the United Nations (Art. 2, para. 4, of the Charter). The para-
mount obligation of the Court is to give a decision that will do justice in
accordance with the maintenance of international peace and security in
any region of the world. The Court is constantly aware of this obligation,
for example, the Court took cognisance of resolutions 731 (1992), and
748 (1992) of the Security Council, in the cases of the Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom) (Libyan Arab Jamahiriya v. United States), when it refused
to order the interim measure requested by Libya. Indeed, in the present
case, at the interim measures stage, the Court ordered that “[b]Joth Parties
should lend every assistance to the fact-finding mission which the Secre-
tary-General of the United Nations has proposed to send to the Bakassi
Peninsula” (7 C.J. Reports 1996 (I), p. 25). In performing this exercise it
is part of the duty of the Court, in its application of international law, to
ensure that conflicting considerations are balanced between opposing
claims.

5. An aspect of the Award of Judge Max Huber in the Island of
Palmas case of October 1924 threw some light on such conflicting
interests:

“It is accepted that every law aims at assuring the coexistence of
interests deserving of legal protection. That is undoubtedly true also
of international law. The conflicting interests in this case, in connec-
tion with the question of indemnification of aliens, are, on the one
hand, the interest of the State in the exercise of authority in its own
territory without interference or supervision by foreign States, and,
on the other hand, the interest of the State in seeing the rights of its
nationals in a foreign country respected and effectively protected.”
(H. Lauterpacht, The Function of Law in International Community,
p. 121.)

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6. The balancing of conflicting interests in a very sensitive case of this
nature is not strange to the Court and this has reflected in some of its
recent judgments, like the case concerning Maritime Delimitation in the
Area between Greenland and Jan Mayen (Denmark v. Norway) U.CJ.
Reports 1993, p. 38), where equity played a major role to allow for a fair
and just allocation and delimitation of the maritime boundary; the case
concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (I.C.J. Reports 2001, p. 40), a case decided in such a
manner as to ensure peace and stability between both parties, to the
extent that both felt satisfied with the Judgment of the Court; the
KasikililSedudu Island (BotswanalNamibia) case (1CJ. Reports
1999 (IT), p. 1045), which encouraged both parties to settle their disputes
amicably.

7. In matters of land and maritime boundaries such balancing of con-
flicting interests or adjustment in cases involving different legal or con-
ventional titles cannot be considered as non-judicial. As will be men-
tioned later, these are cases where effectivités or historical consolidation
have been given consideration over and above legal title. Some examples
were given by A. L. W. Munkman in her article:

“It is perhaps necessary to consider at this point the view that
arbitrators dispose of wider powers of adjustment or minor legisla-
tion, a greater discretion in taking account of the ‘equities’ of the
particular situation, than do strictly judicial tribunals, that is, perma-
nent courts. There seems to be no real basis for any suggestion that
the scope of considerations which judicial, as opposed to arbitral,
tribunals may take account of is narrower: a wide range of social,
economic and geographical criteria were explicitly taken account
of in the Anglo-Norwegian Fisheries and North Sea Continental
Shelf cases, and historical and cultural considerations were not of
themselves described as irrelevant in the Temple case. In the Jawor-
zina case, the Permanent Court explicitly invoked the notion of the
historic boundaries of the States in dispute, and the ethnographical
factors presuming in their favour.” (“Adjudication and Adjust-
ment — International Judicial Decision and the Settlement of Ter-
ritorial and Boundary Disputes”, British Year Book of International
Law, 1972-1973, p. 113.)

8. There are other cases decided by the Court or its predecessor, the
Permanent Court of International Justice, that may also be mentioned,
which lend credence to the fact that international permanent courts are
determined to ensure that at the end of the day both parties to such dis-
putes are happy about the decision and that it is not a case of giving judg-
ment in favour of any of the parties considered to be the “title-holder”.
Recently, the Eritrea/Ethiopia Boundary Commission gave its decision in

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the land boundary dispute which has for many years been the cause of
serious armed conflict between the two parties. On 14 April 2002, when
the decision was delivered, both parties returned to their respective
capitals rejoicing that they were satisfied with the decision of the Com-
mission.

9. Munkman went further to enumerate some other cases:

“In the British Guiana Boundary cases decisions on ‘allocation’ of
substantial portions of territory and on the ‘delimitation’ of the
boundary between the areas awarded to each party were com-
bined — as also in the Rann of Kutch award. In the Jaworzina
Boundary case, the Permanent Court in effect gave a decision on the
allocation and delimitation of a boundary on the basis of the status
quo ante. The North Atlantic Fisheries and Gulf of Fonseca cases (in
so far as they related to bays) and the Anglo-Norwegian Fisheries
case involved decisions on the allocation of sea areas and their
delimitation and, in the latter case, the technical problem of base-
line demarcation.” (Op. cit., p. 115.)

10. In a case of this nature, the proper course for the Court to follow
is not only one of mere legal formalism in favour of one party. It must
weigh and balance the legal titles of both parties and take also into con-
sideration the situation on the ground, particularly in Lake Chad and the
Bakassi Peninsula. It will be difficult, if not impossible, for the Court not
to recognize the status quo. To overlook such a situation will not ensure
justice in this case. Such an oversight might have contributed to the pro-
tracted and judicially unsatisfactory course of the Hungarian Optants
dispute between Romania and Hungary of 1927. A learned author (who
was once a judge of this Court) offered a solution:

“But the course which is believed to be the proper one, and which
is suggested by the position adopted by international tribunals in
other cases, would be to evolve a legal rule constituting a judicial
compromise between the legally recognized claims of territorial sov-
ereignty, on the one hand, and the internationally recognized rights
of aliens, on the other hand.” (H. Lauterpacht, The Function of Law
in the International Community, p. 122.)

LAKE CHAD

11. As regards the Lake Chad Basin, I voted against the decisions of
the Court as stated in paragraph 325 I (A) and (B) of the Judgment,
because they fail to take into consideration the submissions of Nigeria
based on effectivités and historical consolidation; hence my decision to
write a dissenting opinion. Admittedly, the Thompson-Marchand Decla-

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

ration of 1929-1930 as incorporated in the Henderson-Fleuriau Exchange
of Notes of 1931 is relevant, but that is only one aspect (but not all) of
what the Court should consider in order to effect the necessary judicial
delimitation. In the Court’s interpretation of the Declaration it must
effect the necessary adjustments of the boundary to give room for the
situation on the ground as recognized by international law.

12. The Court, in reaching its decision on Lake Chad, relied very
heavily or perhaps solely on certain instruments that formed the bedrock
of Cameroon’s case. These instruments are:

— the Milner-Simon Declaration of 10 July 1919, with the annexed
Moisel map;

— the Thompson-Marchand Declaration of 1929-1930, as confirmed by
the Henderson-Fleuriau Exchange of Notes of 9 January 1931 (para-
graphs 50 and 58 of the Judgment);

— the LCBC Reports and the agreements emanating from them.

13. The Court, in its Judgment, rejects Nigeria’s claim to the 33 vil-
lages in Lake Chad which is based on effectivités. The Court examines
and relies on the Moisel map annexed to the Milner-Simon Declaration
of 1919 and the map attached the Henderson-Fleuriau Exchange of
Notes of 9 January 1931. It concludes that the co-ordinates of the
tripoint must be 14°04’ 5979999 longitude east, rather than at approxi-
mately 14°05’ longitude east, thus virtually reaching the same conclu-
sions as the LCBC (para. 57 of the Judgment) . On the question of the
location of the mouth of the Ebeji, the Court decides (paras. 58-60 of the
Judgment) that it is located where the river bifurcates into two branches,
with the geographical co-ordinates of 14°12’03” longitude east and
12° 13’ 17” latitude north. However, the Court rejects the claim of Nigeria
based on the historical consolidation of its title (para. 62 of the Judg-
ment). Apparently, the Court rejects the contention of Cameroon that
the proposals of the LCBC as regards the tripoint and the location of
the mouth of the Ebeji constitutes an authoritative interpretation of the
Milner-Simon Declaration of 10 July 1919 and the Thompson-Marchand
Declaration of 1929-1930, as confirmed by the Exchange of Letters of
9 January 1931. Yet, it appears to me that the ultimate conclusion
reached by the Court amounts to a difference without distinction because
the Court, in finding the co-ordinates of the tripoint, reaches virtually the
same conclusions as the LCBC having taken into consideration the same
Moisel map and the Thompson-Marchand Declaration of 1929-1930, as
confirmed by the Henderson-Fleuriau Exchange of Notes of 9 January
1931. This opinion therefore touches on all these instruments, the LCBC
Report and agreements emanating therefrom, as well as the issue of effec-
tivités and historical consolidation.

14. In its Additional Application to the Court, dated 6 June 1994,
Cameroon asked the Court to confirm Cameroonian sovereignty over the

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disputed parcel in the area of Lake Chad. Cameroon failed to describe
with certainty what it described as the disputed area in the Lake Chad
region. However, in its submission, the claim was further amplified in
that it is seeking for sovereignty over the area of Lake Chad and, in par-
ticular, over Darak. In addition, Cameroon claims more specifically:

“that the land boundary . . . takes the following course:

— from the point at longitude 14°04’ 59” 9999 E of Greenwich and
latitude 13°05’ 00” 0001 N, it then runs through the point located
at longitude 14°12°11”7005E and latitude 12°32’17”4013N
(Reply of Cameroon, Vol. I, p. 591, para. 13.01). [Translations
by the Registry. ]

15. The nature of the dispute can partly be gleaned from the pleadings
of Cameroon:

“The instrument of conventional delimitation is not in dispute.
That instrument is the Exchange of Notes between Henderson and
de Fleuriau of 9 January 1931 .. ., the validity of which is recognized
by Nigeria, even if it disputes its applicability to Lake Chad .. .”
(Ibid., p. 101, para. 3.04.)

And that:
“Initially, the boundary was delimited by the Milner-Simon
Declaration of 10 July 1919 . . . However, this delimitation, while

undergoing no change in relation to Lake Chad, was rendered more
precise in 1931 by the two governments concerned, on the basis of a
survey conducted by the two High Commissioners, the results of
which are set out in the Thompson-Marchand Declaration of
29 December 1929 and 3 January 1930...” (Jbid., p. 102, para. 3.05.)

16. The position of Nigeria is reflected in its pleadings as follows:

“The purpose of the present Chapter is to demonstrate that there
has been no fina] determination of the boundary within Lake Chad
between Nigeria and Cameroon. This demonstration involves the
following elements:

First: the colonial boundary agreements of the period 1906 to 1931
did not produce a conclusive delimitation in the Lake Chad region.

Second: the uncertainties remained after the Independence of Nigeria
and Cameroon.

Third: the work of the Lake Chad Basin Commission did not
produce delimitation, which was final and binding on Nigeria.”
(Counter-Memorial of Nigeria, Vol. IT, p. 379, para. 16.1.)

17, What then is the nature of Cameroon’s request to the Court? In
this area of the boundary, Cameroon is asking for a confirmation of its
sovereignty over Lake Chad and, in particular, Darak. In this case, going

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through the oral and written pleadings, there appears to be a disagree-
ment between the Parties on the issue of delimitation and demarcation.
The argument of Cameroon is that the area of Lake Chad had been
delimited and demarcated while, on the other hand, Nigeria asserts that
the area had neither been so delimited nor demarcated.

18. Cameroon simply bases its claim on the Milner-Simon Declaration
of 1919 and the Thompson-Marchand Declaration as confirmed by the
Henderson-Fleuriau Exchange Notes of 1931. These are the documents,
according to Cameroon that delimit the boundary in Lake Chad. Nigeria,
on the other hand, whilst accepting the relevance of those instruments in
principle, argues that the boundary is not delimited by these instruments
as such. Nigeria goes further to state that these instruments relate only to
the land boundary between Lake Chad and Bakassi and do not apply to
the boundary in Lake Chad. In addition, Nigeria concludes that

“Thus, as at 1 June 1961, the date upon which Northern Came-
roons was incorporated into the independent Federation of Nigeria,
the process of delimitation and demarcation of the boundary in
Lake Chad was still at an embryonic stage.” (/bid., Vol. II, p. 376,
para. 15.99.)

Cameroon partially or tacitly agrees with this conclusion of Nigeria by
responding that:

“The observation [of Nigeria] is partially correct, concerning the
demarcation of the lake boundary, since Nigeria has not formally
accepted the result of the works carried out within the framework of
the LCBC. It is without foundation for the delimitation, which was
effected with satisfactory precision by the Exchange of Notes
of 9 January 1931, in a manner which was not in the least

2099

‘embryonic’.” (Reply of Cameroon, Vol. I, p. 103, para. 3.11.)

19. Unfortunately, all the attempts made to effect a delimitation and
demarcation of the boundary in the Lake Chad area failed. Before World
War I, all the correspondence, notes, declarations and agreements entered
into between Great Britain and Germany failed to achieve the purpose
of delimitation. Similarly, all the attempts made between France and
Great Britain after World War I equally failed. Subsequent attempts
made at the beginning of World War II did not achieve the purpose of
delimiting the boundary, let alone demarcating it. The following are the
attempts:

Before World War I

(a) Agreement between Great Britain and Germany respecting Boun-
daries in Africa, signed at Berlin, 15 November 1893 (Counter-
Memorial of Nigeria, Vol. IV, Ann. 28):

(b) Convention between the French Republic and Germany for the
Delimitation of the Colonies of French Congo and of Cameroon

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

and of French and German Spheres of Influence in the Region of
Lake Chad, signed at Berlin 15 March 1894 (Counter-Memorial of
Nigeria, Vol. IV, Ann. 29);

(c) Convention between the United Kingdom and France for the Delimi-
tation of their Respective Possessions to the West of the Niger, and
of their Respective Possessions and Spheres of Influence to the East
of that River, signed at Paris 14 June 1898 (ibid., Ann. 30);

(d) Anglo-German Agreement signed 12 December 1902 (ibid.,
Ann. 33);

(e) Anglo-German Protocol signed at Ullgo, Lake Chad, 24 February
1904 (ibid., Ann. 34);

(f) Convention between the United Kingdom and France respecting
Newfoundland and West and Central Africa, signed at London,
8 April 1904 (ibid., Ann. 35);

(g) Agreement between the United Kingdom and Germany respecting
the Boundary between British and German Territories from Yola to
Lake Chad, signed at London, 19 March 1906 (ibid, Ann. 38);

(h) Convention between the United Kingdom and France respecting the
Delimitation of the Frontier between the British and French Posses-
sions to the East of the Niger, signed at London, 29 May 1906 (ibid,
Ann. 39);

(i) Convention between France and Germany confirming the Protocol
of 9 April defining the Boundaries between French Congo and the
Cameroons, signed at Berlin, 18 April 1908 (ibid., Ann. 40);

(j) Agreement between the United Kingdom and France respecting the
Delimitation of the Frontier between the British and French Posses-
sions East of the Niger (approved by Exchange of Notes, 17 May/1 July
1911), signed at London, 19 February 1910 (ibid. Vol. V, Ann. 43).

Since World War I

(a) The Picot/Strachey Lines, February 1916 and the Crewe/Cambon
Exchange of Notes, March 1916 (ibid, Vol. IX, Anns. 226, 228-
229).

20. If we leave for the moment the two crucial Declarations of 1919
and 1931, which failed to delimit the boundary, all subsequent attempts
to effect the delimitation from 1931 to 1938 equally failed. Even by that
time, the Boundary Commission, under the Permanent Mandates Com-
mission did not make any tangible progress to effect the proposed task of
demarcation. Based on the preliminary study of the boundary that they
had provisionally defined, it was in 1937 that the Joint Commission
started its work. However, the outbreak of World War II put a halt to
the Commission’s work. A report of 15 January 1942, communicated to
the Colonial Office by the Governor of Nigeria indicated that the com-
missioners had executed only 135 miles of the boundary out of a total
length of approximately 1,200 miles (ibid., Vol. IX, Ann. 371).

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21. Going back to the 1919 Milner-Simon Declaration, it is described
as an agreement

“to determine the frontier, separating the territories of the Cam-
eroons placed respectively under the authority of their Govern-
ments, as it is traced on the map Moisel 1 :300,000, annexed to the
present declaration and defined in the description in three articles
also annexed hereto” (Counter-Memorial of Nigeria, Vol. V, Ann. 50,
p. 481; emphasis added).

That boundary as described by the Milner-Simon Declaration is patently
inaccurate, unreliable and deficient. It is admitted by both Parties that
the Moisel map attached to the Declaration is unreliable, even as regards
the co-ordinates (i.e., latitude 13° 05’ N and longitude 14° 05’ E), which
was only drawn to approximation. In some aspects, the Agreement itself
is vague. It is no surprise that the Declaration anticipates “further local
delimitation”. Article 2, paragraph 1, of the Declaration reads thus:

“It is understood that at the time of the local delimitation of the
frontier, where the natural features to be followed are not indicated
in the above description, the Commissioners of the two Governments
will, as far as possible, but without changing the attribution of the
villages named in Article 1, lay down the frontier in accordance with
natural features (rivers, hills or watersheds).

The Boundary Commissioners shall be authorised to make such
minor modifications of the frontier line as may appear to them
necessary in order to avoid separating the villages from their agri-
cultural lands. Such deviations shall be clearly marked on special
maps and submitted for the approval of the two Governments.
Pending such approval, the deviations shall be provisionally recog-
nised and respected.” ([bid., Vol. V, Ann. 50, p. 483; emphasis
added.)

22. In fact, with regard to this Declaration, the letter of Lord Curzon,
in its first paragraph, indicates that Great Britain only agreed with the
French Government as “provisional entry into force pending the definitive
settlement of the régime to be applied in these territories” (ibid., Vol. TX,
Ann. 239, p. 1865; emphasis added). Hence, by 27 May 1921, a sugges-
tion was made by France to Great Britain, that it was preferable to leave
the delimitation until after the mandates have been obtained from the
League of Nations. The letter of the British Ambassador of 23 October
1921, in its second paragraph, gave a very clear indication of the prob-
lems with the Milner-Simon Declaration. In that letter, he suggested that
Article 1 of the Draft Mandate should be recast to contain the following
provision:

“This line may, however, be slightly altered by agreement between

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His Britannic Majesty’s Government and the Government of the
French Republic where an examination of the localities shows that it
is undesirable, either in the interests of the inhabitants or by reason
of any inaccuracies in the map ( Moisel 1:300,000) annexed to the
declaration to adhere strictly to the line laid down therein.’ (Counter-
Memorial of Nigeria, Vol. IX, Ann. 243, p. 1881; emphasis added.)

23. The advice of the British Ambassador, Hardinge of Penshurst,
referred to above, was accepted by the League of Nations in July 1922, in
order to effect the necessary amendments to the Milner-Simon Declara-
tion. There again, in Article 1 of the League of Nations instrument, the
interest of the inhabitants was to be taken into consideration as well as
correcting the inaccuracies of the Moisel map of 1:300,000 scale, which
incidentally is relatively too small for boundary delimitation exercises.
The important point in all this is that the Court fails to give considera-
tion to the interests of the Nigerian inhabitants in all 33 villages claimed
by Nigeria in this sector of Lake Chad.

It can therefore be observed that even during the Mandate there is a
tacit consideration given to effectivités in terms of the interest of the
inhabitants in any of the localities where this is desirable.

24. The Thompson-Marchand Declaration was an improvement on
the Milner-Simon Declaration because it introduced an improved map
that was annexed to that Declaration. Furthermore, it mentioned the
identification of a straight line as far as the mouth of the Ebeji. Here
again, we find that the process had not yet reached the delimitation stage,
let alone demarcation. In the same paragraph of the letter of de Fleuriau
of 9 January 1931, he remarked:

“Your Excellency will no doubt have received the text of same
Declaration and will certainly have observed that it concerns a
preliminary survey only. This is intended to describe the line to
be followed by the Delimitation Commission, more exactly than
was done in the Milner-Simon Declaration of 1919.” ({bid., Vol. V,
Ann. 54, p. 538; emphasis added.)

In reply to de Fleuriau’s letter, Arthur Henderson correspondingly replied
that a boundary commission would have to be constituted in order to
take over a preliminary survey that had been conducted in order to carry
out actual delimitation of the boundary.

25. Under the United Nations Trusteeship in 1946, attempts were also
made at delimiting the boundary in Lake Chad, which did not materialize
up to 1948, and after. The report presented by the United Kingdom
Trusteeship for the Cameroons touched on the boundary issues vis-a-vis
the Thompson-Marchand Declaration and states as follows:

“The Territory to which this Agreement applies comprises that
part of the Cameroons lying to the west of the boundary defined by

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

the Franco-British Declaration of 10 July 1919, and more exactly
defined in the Declaration made by the Governor of the Colony and
Protectorate of Nigeria and the Governor of the Cameroons under
French mandate which was confirmed by the exchange of Notes
between His Majesty’s Government in the United Kingdom and the
French Government of 9 January 1931. This line may, however be
slightly modified by mutual agreement between His Majesty's Gov-
ernment in the United Kingdom and the Government of the French
Republic where an examination of the localities shows that it is desir-
able in the interest of the inhabitants.” (Counter-Memorial of
Nigeria, Vol. V, Ann. 56, pp. 579-581; emphasis added.)

26. One remarkably persistent issue that kept recurring in many of the
agreements just mentioned is the interest of the inhabitants, whenever
delimitation or even demarcation had to be effected. Unfortunately, this
modification has not been carried out till today. It started with the British
Ambassador in 1921; was engrafted into the League of Nations instru-
ments as Article 1; and was again contained in Article 1 in the Trustee-
ship Agreement of 13 December 1946, all clearly expressing the need to
modify the boundary by “mutual agreement between His Majesty’s Gov-
ernment in the United Kingdom and the Government of the French
Republic where an examination of the localities shows that it is desirable
in the interest of the inhabitants” (ibid, Ann. 56, p. 581).

27. Has this modification ever been carried out? Can that problem be
ignored or dismissed, especially now that Nigeria is claiming 33 villages
in Lake Chad? In any attempt to delimit this area of the boundary in the
Lake Chad area, should this not be taken into consideration? Yet the
Court fails to consider this claim of Nigeria regarding its inhabitants in
Lake Chad.

28. In effect therefore, the judicial assignment of the Court entails a
conclusive settlement of this dispute first, by interpreting the instruments
involved, then take into consideration the interest of the inhabitants’
effectivités and historical consolidation. A similar assignment was per-
formed by this Court in the case concerning the Territorial Dispute
(Libyan Arab JamahiriyalChad) in 1994 on what constitutes the initial
task of the Court. The Court therein described its assignment thus:

“The Court will first consider Article 3 of the 1955 Treaty, together
with the Annex to which that Article refers, in order to decide
whether or not that Treaty resulted in a conventional boundary
between the territories of the Parties. [f the 1955 Treaty did result in
a boundary, this furnishes the answer to the issues raised by the
Parties: it would be a response at one and the same time to the
Libyan request to determine the limits of the respective territories of
the Parties and to the request of Chad to determine the course of the

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frontier. The Court’s initial task must therefore be to interpret the
relevant provisions of the 1955 Treaty, on which the Parties have
taken divergent positions.” (LC.J. Reports 1994, p. 20, para. 38;
emphasis added.)

29. In view of the claim of Nigeria over certain specific places, where
the inhabitants are affiliated to Nigeria and are being administered by
Nigeria, this provision in the Agreement ought to have been seriously
taken into consideration by the Court in its interpretation of the bound-
ary line, hence my disagreement with the decision of the Court.

30. The Parties’ concept and arguments aside, it is important to deter-
mine the duty of the Court as regards the dispute in Lake Chad. Clearly,
the Court is not called upon to demarcate and, quite obviously, this is
outside the assignment of the Court. Is this therefore a case of delimita-
tion or attribution for the Court? In a case of this nature, where there are
conflicting claims by the parties as to the location of the boundary and
disputed territorial sovereignty, the cardinal assignment of the Court is,
first to deal with the determination of the boundary by way of judicial
delimitation and subsequently to deal with the conflicting territorial
claims of the parties.

31. As indicated earlier, there are claims and counter-claims as to
whether the Lake Chad basin had been delimited or demarcated. Presum-
ably, if both Parties had definitively concluded the agreements on delimi-
tation and a fortiori demarcation, this Application might not be filed by
Cameroon. The preliminary objection of Nigeria on this point was rejected
by the Court. The duty of the Court here therefore is to determine
whether the boundary in Lake Chad had been delimited or not. If it had
not been delimited, it is the Court’s duty to carry out such an exercise as
a judicial function. Even if the Court finds that it had already been
“delimited” by certain instruments, the Court will still need to examine
those instruments and then carry out its own definitive determination of
the boundary. The Court ought to ascertain the true legal line in terms of
interpreting those instruments in relation to the descriptive content of
such boundary which, inter alia, must relate not only to its toponomy,
geography, topography and human factors, but also apply the rules of
interpretation in accordance with the Vienna Convention on the Law of
Treaties of 1969, particularly its Article 31. With respect to this Conven-
tion, the Court is bound to take into consideration not only the ordinary
meaning of the instruments but also the conduct and practice of the
Parties which, unfortunately, the Court fails to do in the Judgment.

Lake Chad and the Work of the LCBC
32. There is a curious turning point in the boundary dispute between
Cameroon and Nigeria which is quite remarkable and worthy of mention
here. The VIJIth Summit Meeting of the LCBC was held on 21-23 March

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1994 in Abuja, Nigeria. At the meeting, the four Heads of State including
that of Cameroon were present. The decision of the Summit echoes the
consensus reached as follows:

“A. Boundary demarcation

— to approve the technical document on the demarcation of the
international boundaries of member States in the Lake Chad, as
endorsed by the national experts and the Executive Secretariat of
the LCBC.

— that each country should adopt the document in accordance with
its national laws.

— that the document should be signed latest by the next summit of
the Commission.

— to instruct state/local administrations of each country to mount
social mobilization campaigns to educate the local populations
on the demarcation and their rights and privileges on the Lake.

— congratulated the Commissioners, the national experts, the
Executive Secretariat and the Contractor IGN-France for a job
well done.” (Counter-Memorial of Nigeria, Vol. IT, pp. 407-408,
para. 16.57.)

33. Yet, precisely five days after this apparently cordial meeting of
Heads of State in Abuja, where they expressed the view that the work of
the LCBC had been satisfactorily carried out, Cameroon filed the Appli-
cation for the confirmation of its sovereignty over certain areas of Lake
Chad and over Darak. This was the same area of boundary that the
Cameroonian Head of State, along with his Nigerian counterpart had,
only recently, endorsed.

34. The second unfortunate aspect of this litigation is that the LCBC,
its Executive Secretary, members, experts and the IGN laboured from
1983 to 1994 to ensure the final determination of the border in this sector
between Cameroon and Nigeria. However, it appears that this has now
become an exercise in futility — much ado about nothing — with colos-
sal waste of time, effort and money, since neither Nigeria nor Cameroon
ratified the boundary agreement (Cameroon later ratified in 1997). Cam-
eroon has now applied to the Court to start de novo what was close to
an agreement between the Parties. Must Cameroon approbate and rep-
robate? The findings of the LCBC are not binding either directly or indi-
rectly on the Court and neither is the LCBC bound by whatever may be
the decision of the Court on this area of the boundary. The jurisdiction
of the Court is consensual and it cannot bind other members of the
LCBC, such as Niger and Chad, who are not parties before the Court
(Art. 59 of the Statute of the Court). The Court is entitled to deal with
the bipoint between Cameroon and Nigeria but not the tripoint between
Cameroon, Chad and Niger.

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

35. The Court had already expressed its view and made some obser-
vations during the jurisdictional phase of this case as regards the dispute
between both Parties in the Lake Chad area. It is pertinent to refer to the
observations of the Court herein before we proceed further:

“the Court notes that, with regard to the whole of the boundary,
there is no explicit challenge from Nigeria. However, a disagreement
on a point of law or fact, a conflict of legal views or interests, or the
positive opposition of the claim of one party by the other need not
necessarily be stated expressis verbis. In the determination of the
existence of a dispute, as in other matters, the position or the atti-
tude of a party can be established by inference, whatever the pro-
fessed view of that party. In this respect the Court does not find
persuasive the argument of Cameroon that the challenge by Nigeria
to the validity of the existing titles to Bakassi, Darak and Tipsan,
necessarily calls into question the validity as such of the instruments
on which the course of the entire boundary from the tripoint in Lake
Chad to the sea is based, and therefore proves the existence of a dis-
pute concerning the whole of the boundary.” (C.J. Reports 1998,
p. 315, para. 89.)

36. The assignment given to the LCBC’s Sub-Committee on Boundary
Matters, which started in 1983, was completed in March 1994. IGN of
France was engaged to carry out the work which it completed in July-
1993 and submitted to the Executive Secretary; eventually all the experts
of the member States signed the report. Subsequently, at the meeting of
Heads of State in Abuja in March 1994, all the Heads of State present
signed the boundary documents, subject to ratification by each member
State. Cameroon did not ratify until 1997 and Nigeria has not ratified to
date. The IXth Summit of Heads of State was held in Chad in 1995. At
that time, the Application of Cameroon was already pending before the
Court and both Cameroon and Nigeria were absent from the Meeting.

37. What then is the legal effect of the work of the LCBC, with its
report and documents not ratified by all the member States before the
IXth Summit of Heads of State in 1995? Although all the Heads of State
present during the VIIIth Summit signed it, each country still had to
adopt it in accordance with its own national laws. The document had to
be ratified no later than the next Summit of the Commission in 1995, in
order to give it legal force. Cameroon and Nigeria failed to ratify before
the “next Summit”, even though Cameroon ratified subsequently. Since
the other two countries, Niger and Chad, are not before the Court they
are not bound by the decision of the Court. This is a fundamental prin-
ciple that the Court has pronounced upon many occasions. In the juris-
dictional phase of the case, this principle was once again reiterated thus:

“The Court recalls that it has always acknowledged as one of the
fundamental principles of its Statute that no dispute between States

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can be decided without their consent to its jurisdiction (Monetary
Gold Removed from Rome in 1943, Judgment, I. C.J. Reports 1954,
p. 32). Nevertheless, the Court has also emphasized that it is not
necessarily prevented from adjudicating when the judgment it is asked
to give might affect the legal interests of a State which is not a party
to the case; and the Court has only declined to exercise jurisdiction
when the interests of the third State ‘constitute the very subject-
matter of the judgment to be rendered on the merits’ (Certain Phos-
phate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, IL C.J. Reports 1992, p. 61, para. 55; East Timor ( Portugal
v. Australia), Judgment, I.C.J Reports 1995, pp. 104-105, para. 34).”
(LC.J. Reports 1998, p. 312, para. 79.)

38. In the above circumstances, and as the Court rightly decided, the
Agreement is not opposable to Nigeria and hence Nigeria is not bound
by it. Similarly, it cannot be said that this Agreement must be recognized
by all the member States of the LCBC. In the minutes of the VIIIth Sum-
mit of the Heads of State and Government in Abuja 1994, the decision
reached was:

66

— that each country should adopt the document in accordance
with its national laws.

— that the document should be signed latest by the next summit of
the Commission” (Counter-Memorial of Nigeria, Vol. X,
Ann. 285, Decision No. 5, p. 13).

In the absence of any evidence that these decisions have been carried out
by Cameroon and Nigeria, the document obviously will not be binding
on the Parties in this case.

39. Article 46 of the Vienna Convention on the Law of Treaties is rele-
vant here. Although all the Heads of State signed the documents in
Abuja in 1994 (which Article 7 seeks to protect and validate), it is clear
from their decision that before the Agreement could enter into force, it
must be adopted and ratified by all the LCBC member States.

40. The task of the LCBC, which involves its Executive Secretary, the
members and experts from member States, covered the period from 1983
until 1994, The establishment of the LCBC was prompted by the distur-
bances in that region during the year 1983, which necessitated the con-
vening of the meeting of its members in Lagos from 21 to 23 July 1983.
The Sub-Committee on the Delimitation of the Borders was saddled with
the responsibility of the boundary determination. Necessary logistical
problems (including funding) delayed the exercise until 1988 when the
contract for the demarcation was signed between the LCBC and IGN
International of France on 26 May 1988.

41. Cameroon puts emphasis on the stage of the work of the contrac-
tor in 1990. It referred to the Report on the Marking-Out of the Inter-

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

national Boundaries in Lake Chad.. The experts of the LCBC introduced
this Report in the following terms:

“We the undersigned,

experts from the Member States of the CBLT/LCBC (Cameroon,
Niger, Nigeria and Chad), duly designated by our States to supervise
and monitor the work on the demarcation of our boundaries in
accordance with resolution No. 2 adopted by our Governments at
their Sixth Summit Meeting held in N’Djamena on 28 and 29 Octo-
ber 1987.

have proceeded, from 13 June 1988 to 12 February 1990, to effect
the delimitation and marking-out of the said boundaries and submit
to the approval of the respective Governments the following descrip-
tion of the boundaries that we marked out.” (Counter-Memorial of
Nigeria, Vol. IT, p. 403, para. 16.50; emphasis added.)

42. The argument of Cameroon as stated above can be faulted on five
grounds: firstly, the document completed and to be submitted is a mere
report and not a binding agreement; secondly, not all the experts from
member States signed; thirdly, the Report was still incomplete; fourthly,
the Report itself states that it was being submitted to the Heads of State
for approval; and, fifthly, the task of the experts was not to approve the
work of IGN of France: they were only mandated to supervise and moni-
tor the work. As regards the nature of the document as a report, even the
Memorial of Cameroon referred to above expressly described it as such.
It was introduced as the Report on the Marking-Out of the International
Boundaries and no more.

43. The task of the Commission on the Boundary was not concluded
in 1990 but continued through 1991, 1992 and 1993. This was because
IGN International of France had not completed the technical task and
the expert of Nigeria and, at another stage, the expert of Chad, were not
satisfied with the Report and they insisted on some technical amend-
ments. The comment of Nigeria on this point is very illuminating:

“At a meeting of LCBC Experts in January 1992, Nigeria indi-
cated that it was now ready to implement the resolution of the 39th
Meeting and to sign the ‘report on demarcation’ (NPO 75). The
Commission noted the intention of the experts to implement the
resolution by June 1992 (page 715 of NPO 75). At the 41st Session
of the Commission in April 1993 (see extracts of Minutes at
NC-M 284), it was reported that the experts has gone back to the
field, finalized the technical aspects of the job and all signed the
demarcation document. However, because of a dispute regarding the
location of Beacon VI on the Chad/Cameroon boundary, the Chad
Commissioner stated that he was unable to endorse that aspect of

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

the work, and as a result of there being a lack of consensus, it was
resolved that the ‘documents regarding the demarcation exercise’ be
signed by the Executive Secretary and made available to the Com-
missioners for presentation to their Governments so that the issue
could be finalised at the next Summit.” (Counter-Memorial of
Nigeria, Vol. IE, p. 406, para. 16.54.)

44. As reflected in the memorandum of Nigeria in November of 1990
at the 39th meeting of the Commissioners, the Nigerian delegation refused
to sign the report for the reason that was expressed thus:

“In November 1990, at their 39th meeting, the Commissioners
resolved that the national experts should go back to the field to com-
plete some specific jobs relating to two intermediate beacons . . . In
the course of the discussions of the relevant subcommission, the
position of the Nigerian delegation as recorded in the Minutes was
as follows...

‘For its part, the fourth delegation, i.e. that of NIGERIA, con-
sidered that the project was not fully completed (the failure to
number beacon II-III.1, substandard quality of numbering by
LCBC, non-demolition of beacon II-V.1 which was wrongly
erected, non stabilisation of GPS and Azimuth station on lines
I-II and II-V and disappearance of two GPS stations on line I-II).’

In consequence, Nigeria refused to sign the Report of the experts
on the beaconing. At a June 1991 meeting of experts, Nigeria rejected
this resolution of the 39th Meeting . . .” (bid, Vol. I, p. 405,
para. 16.52.)

45. As referred to earlier, the experts of member States were not man-
dated to sign the final agreement for or on behalf of the Governments or
Heads of State. They were instructed to prepare and submit a report for
the approval of the Heads of State at their Summit, which they did at the
VITIth Summit, for their signature. That precisely was their undertaking
as stated in the Report. They unequivocally expressed the duty that they
were called upon to carry out — “to supervise and monitor”. Therefore,
whatever was signed by the experts of member States cannot bind the
Parties in this case. It cannot, therefore be said that the mission entrusted
to the LCBC and the manner in which it was carried out resulted in the
recognition by the LCBC member States that a delimitation in the Lake
Chad area already existed. The Commission was not so mandated. The
ultimate decision lies with the Heads of State. In 1994, the Report was
accepted and approved by the Heads of State signing the document that
was to be subsequently ratified. That ratification did not happen, at least

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

as far as Nigeria is concerned. Hence my view is that the Court ought to
ignore the report and agreement of the LCBC. Tacitly, therefore, the
decision of the Court to reject Cameroon’s submission that the Parties
are bound by the LCBC’s Report is valid. However, the Court ought to
have taken into consideration other factors, such as effectivités and
historical consolidation in order to come to a determination on the delimi-
tation of Lake Chad.

Delimitation and Demarcation

46. Reading through the oral and the written pleadings in this case one
must admit that there is a degree of misunderstanding or even confusion
in the use of the words delimitation and demarcation. Perhaps, for the
purpose of elucidation and to clear the apparent convolution, we may
borrow a definition of these two terminologies from a textbook on inter-
national law:

“The distinction sometimes made between artificial and natural
boundaries is geographical rather than legal, for so-called natural
boundaries, making use of natural features such as rivers or moun-
tains usually need further definition in order to produce a precise
boundary line. The common practice for land boundaries is, in a
boundary treaty or award, to describe the boundary line in words,
i.e. to ‘delimit’ it; and then to appoint boundary commissions,
usually joint, to apply the delimitation to the ground and if necessary
to mark it with boundary posts or the like, i.e. to ‘demarcate’ it.”
(Oppenheim's International Law, 9th ed., Vol. 1 (Peace), Parts 2-4,
Sir Robert Jennings and Sir Arthur Watts (eds.), p. 662.)

47. The claim of Cameroon is that the LCBC has delimited the bound-
ary with the aid of the relevant instruments already mentioned. The view
of Nigeria is that nothing has been delimited or demarcated conclusively.
Nigeria agrees that certain instruments are relevant for the purpose of
delimitation but that the area of Lake Chad is not part of it. Cameroon
argues that the demarcation had been fully and finally effected by the
LCBC and the same sanctioned by the Heads of State. For the reason
already given above, I disagree with Cameroon, as the Court has also
done. However, since delimitation precedes demarcation, and delimita-
tion in this case is not just simply confirming the instruments that delimit,
but these instruments must be given judicial interpretation having regard
to the conflicting view of the Parties, the Court is therefore called upon to
determine the issue of delimitation, whilst the Parties will undertake that
of demarcation. But in doing so the Court fails to take into consideration
factors other than the instruments.

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556 LAND AND MARITIME BOUNDARY (DISS. OP. AJIBOLA)
Lake Chad Basin: Effectivités and Historical Consolidation

48. As mentioned earlier, and based on the evidence presented to the
Court by both Parties on this matter and particularly Nigeria, I am
strongly of the view that the issue of effectivité and historical consolida-
tion ought invariably to be given consideration in this case. My reason
for saying so has been partly explained in the introductory part of this
opinion and partly in the sector on Bakassi Peninsula below. Here refer-
ence must be made to the jurisprudence of the Court, in the Frontier Dis-
pute (Burkina Fasol Republic of Mali) case, particularly in terms of the
pronouncement of the Court with regard to the position of effectivités in
relation to legal title. There is enough reason and justification for the
Court to take these legal principles of historical consolidation and effec-
tivités into consideration. It has been established that in so many areas in
Lake Chad, the Milner-Simon Declaration of 1919 with the annexed
Moisel map and the Thompson-Marchand Declaration of 1929-1930, as
confirmed by the Henderson-Fleuriau Exchange of Notes of 9 January
1931, are not sufficiently precise and in most cases inaccurate to present
a clear picture of delimitation in Lake Chad. The boundary thus requires
adjustments and clarifications which can only be taken care of by effec-
tivités and historical consolidation.

49. The Lake Chad basin is constantly in a state of flux as to its waters
and its inhabitants kept moving with the receding waters from time to
time. Some of the settlements and villages have been there for over
40 years. Undoubtedly, this is a situation where effectivité has an impor-
tant role to play. In the Island of Palmas case, Max Huber held that the
island ought to be attributed to the Netherlands on the ground that:

“the establishment of Netherlands authority, attested also by exter-
nal signs of sovereignty, had already reached such a degree of devel-
opment that the importance of maintaining this state of things ought
to be considered as prevailing over a claim possibly based either on
discovery in very distant times and unsupported by occupation, or
on mere geographical position” (H. Lauterpacht, The Function of
Law in International Community, p. 120).

Added to all these uncertainties in the area of Lake Chad is the fact
that there has never been any definitive delimitation, let alone demarca-
tion. A clear picture of the situation in Lake Chad is that the inhabitants
have been living at large regardless of where the boundary lies, and some
of them have been there for many years. It is precisely a situation like this
that calls for justice in favour of these inhabitants, most of whom owe
allegiance to Ngala local government in Nigeria and their Nigerian Bula-

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

mas (chiefs). This spread of inhabitants in Lake Chad is not unusual, we
have similar examples in the area of the land boundary between Nigeria
and Cameroon where, for example, in the Nigerian village of Koja, the
Nigerian inhabitants have spread over into the Cameroonian side of the
boundary. Again, in the Cameroonian village of Turu, the inhabitants
have spread into the Nigerian territory. The Court in its wisdom has
decided to allow the Parties to resolve these incursions themselves by
peaceful settlement. The arbitrator in the /s/and of Palmas case estab-
lished the general rules which ought to guide the judge in deciding
matters of this nature by weighing the relative merits of the titles claimed.
He said:

“International law, like law in general, has the object of assuring
the coexistence of different interests which are worthy of legal pro-
tection. If, as in the present instance, only one of two conflicting
interests is to prevail, because sovereignty can be attributed to but
one of the Parties, the interest which involves the maintenance of a
state of things having offered at the critical time to the inhabitants of
the disputed territory, and to other States, a certain guarantee for
the respect of their rights ought, in doubt, to prevail over an interest
which — supposing it to be recognized in international law — has
not yet received any concrete form of development.” (H. Lauter-
pacht, op. cit., pp. 119-120.)

In my view, this statement of Max Huber is reflected in the Frontier Dis-
pute (Burkina FasolRepublic of Mali) case, that:

“In the event that the effectivité does not co-exist with any legal
title, it must invariably be taken into consideration. Finally, there are
cases where the legal title is not capable of showing exactly the ter-
ritorial expanse to which it relates. The effectivités can then play an
essential role in showing how the title is interpreted in practice.”
(LC.J. Reports 1986, p. 587, para. 63; emphasis added.)

50. In this particular case therefore, it is effectivité that can assist in
fully complementing the content of the legal title. This definitely is not a
case of effectivité contra legem, but one that must invariably be given rec-
ognition and consideration. Quite patently, the Frontier Dispute ( Burkina
Fasol Republic of Mali) case is the authority on this point. The Court
cannot interpret a part of paragraph 63 of the Judgment in that case, and
leave the other part uninterpreted. After all, Cameroon in effect accepted
the overwhelming evidence of effectivités put forward by Nigeria.

51. Nigeria strongly and extensively pinpoints the obvious deficiencies
in many of these instruments. Cameroon also agrees with many of the
deficiencies as highlighted by Nigeria. One example is the Moisel map as

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

well as the map attached to the 1931 Declaration. Another problematic
area is the mouth of the Ebeji. The difficulties encountered by the LCBC
throughout the duration of their work on the Lake Chad boundary is not
unconnected with the problems of inaccuracies, uncertainties and incon-
gruities when it comes to delimitation and demarcation.

52. The role of effectivité which deals majorly with the conduct and
practice of the parties and has its legal basis founded on some of the pro-
visions of the Vienna Convention on the Law of Treaties of 1969, par-
ticularly its paragraph 31, has as its advantage, the need to ensure stabil-
ity along the boundaries of two States. Short of invalidating a legal title
that bears no relation to the situation on the ground, effectivité comes in
to play the role of sustaining complementarily the boundary based on the
practice and conduct of the parties over the years which, in effect, is simi-
lar to the principle of wti possidetis juris (de facto). Consequently, effec-
tivité comes in to adjust, vary or amend such boundary as may be struc-
turally established by the legal title.

53. This view is not strange to the Court. Apart from certain infer-
ences made by it on a similar matter in the Kasikili/Sedudu Island ( Bot-
swanal Namibia) case, an illustration of such a principle was made in the
Advisory Opinion of 1971 in the case concerning the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970),
where the Court states:

“This procedure followed by the Security Council, which has con-
tinued unchanged after the amendment in 1965 of Article 27 of the
Charter, has been generally accepted by Members of the United
Nations and evidences a general practice of that Organization.”
(4 C.J. Reports 1971, p. 22, para. 22.)

54. Similarly, in 1962, the Court had another opportunity to pro-
nounce on the conduct and practice of the parties with regard to a map
which the Court considered to have been accepted as the outcome of the
work on delimitation between Cambodia and Thailand in the case con-
cerning the Temple of Preah Vihear. In that case the Court decided that:

“Thailand in 1908-1909 did accept the Annex I map as representing
the outcome of the work of delimitation, and hence recognized the
line on that map as being the frontier line, the effect of which is to
situate Preah Vihear in Cambodian territory. The Court considers
further that, looked at as a whole, Thailand’s subsequent conduct
confirms and bears out her original acceptance, and that Thailand’s
acts on the ground do not suffice to negative this. Both Parties, by
their conduct, recognized the line and thereby in effect agreed to
regard it as being the frontier line.” (C.J. Reports 1962, pp. 32-33;
emphasis added.)

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

In this case, Nigeria relies very heavily on effectivités to justify its claim
over the 33 villages mentioned in its Counter-Memorial and filed bundles
of documents in support of it, which clearly show its uninterrupted occu-
pation of such places over the years.

55. Nigeria describes with particularity that the settlements are not
heavily populated, and are headed by Bulamas. The houses are generally
built of grass and mud. Fishing and farming are practised on the avail-
able fertile land and water. The people there are Nigerians and are pre-
dominantly of Nigerian tribes, i.e., Hausa, Fulani, Kanuri, and in some
cases Ibo, Yoruba, Shuwa Arabs and Sara. They also have in some places
Malians, Cameroonians and Chadians who, even though few, also pay
community taxes to Nigerian Local Government Authorities (Ngala and
Marte Local Government Authorities).

56. According to Nigeria, some of these villages were established as
far back as 1959. Documentary evidence in support of Nigeria’s effec-
tivités in the Lake Chad basin was rather overwhelming. Nigeria’s activi-
ties in these villages, viz., the appointment of Bulamas, general and local
administration, health services, education, collection of taxes, holding of
elections, conducting census, proof of the affiliation of the local inhabi-
tants to Nigeria and aid to inhabitants for agricultural purposes were all
heavily pleaded and presented. Nigeria claims to have carried on these
activities continuously in all these villages, undisturbed and uninter-
rupted by Cameroon over the years. Cameroon recognizes these facts.
Cameroon persistently referred to a “long list” of documents presented
by Nigeria. At a juncture counsel for Cameroon stated during the oral
proceedings:

“Nigeria has presented you with a very long list of its alleged effec-
tivités. Many of them do not qualify as proper effectivités, for the
reasons I have already outlined and for others I shall mention
shortly. Still, superficially, it is a long list. Cameroon’s is shorter.
Deliberately so, however.” (CR 2002/4 (Mendelson), p. 45, para. 23;
emphasis added.)

57. In Cameroon’s presentation of its own effectivités, it claims that
Nigeria occupies 18 Cameroonian villages. Most of the claims and activi-
ties of Cameroon date from about 1983-1987. Cameroon has visited only
12 of these villages between 1982 and 1990. It claims to have carried out
a census in 1983 in 14 villages including Sagir, which it admits belongs to
Nigeria. Cameroon claims to have collected taxes from eight villages
between 1983 and 1993. It also claims to have designated chiefs in 12 vil-
lages. Although Cameroon did not claim to have held elections in any of
the villages, nevertheless it claims to have installed polling stations in six
villages, conducted election tours in four villages and given notice of elec-
tions in seven villages. Cameroon further claims to have been in control

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

of markets, thereby banning illegal trading in four villages, and distrib-
uted provisions to nine villages in 1985. Cameroon intervened through its
gendarmeries between 1984 and 1986 in three criminal cases in three vil-
lages, and in 1982 organized cultural and folk activities in four villages.
However, Cameroon concedes that six of these villages are actually
within Nigerian territory; these are: Koloram, Sabon Tumbu, Jribril-
laram, Doron Mallam, Kirta Wulgo and Sagaya.

58. From the above report it can be seen that Cameroon’s effectivités
are admittedly very scanty, few, vague, mostly unsubstantiated and
restricted to a limited period and cannot be compared with the over-
whelming evidence of effectivités presented by Nigeria before the Court.
As Cameroon pointed out, Nigeria’s claim to the 33 villages and the
justification for such a claim based on effectivité is all contained in
Nigeria’s pleadings. Nigeria’s effectivités and historical consolidation in
Lake Chad are sufficiently significant to be accorded recognition. But the
Court unfortunately rejects all these claims.

59. It will be necessary in this opinion to dwell on another angle
concerning the issue of title which Cameroon is relying on. Counsel for
Cameroon added at the oral proceedings:

“For the legal reasons I have already put before you Cameroon,
as the party with the title, needs to prove very little (if anything) by
way of corroboration of its title. So it has deliberately refrained from
playing Nigeria’s game, considering it quite inappropriate to go
down the path of amassing one example after another.” (CR 2002/4
(Mendelson), p. 45, para. 23.)

I wish to refer to yet another admission by Cameroon with regard to the
overwhelming evidence of effectivité presented by Nigeria before the
Court, where counsel for Cameroon stated:

“So it will not do for Nigeria to pile up instance after instance of
alleged effectivités in one pan of the scales, so to speak, and then
point out that Cameroon has cited fewer. The law requires this
Court to tilt the scales of justice in favour of the title-holder, and it
will require a great deal to displace that title.” (Jbid., p. 39, para. 11.)

Here again Cameroon can be faulted with regard to its so-called “legal
title” and its claim as “title-holder”. In the first case, it must be clear that
the effectivités of Nigeria in the Lake Chad basin is not meant to displace
the conventional title. Effectivité as presented by Nigeria in this case will
only vary or adjust the conventional title boundary. It will not tilt the
scale of justice one way or the other, but merely recognizes the fact that
by the acts of the Parties through their conduct and practice they have

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“recognized” the necessary adjustments in an otherwise inaccurate con-
ventional title boundary.

60. It is true that in this area of Lake Chad (as well as in the Bakassi
Peninsula), Cameroon has fewer evidence of effectivité. This presumably
is because they have never occupied these areas which Nigeria has proved
to be under its occupation all along. However, and quite erroneously,
Cameroon is relying on what it terms “legal title” by referring to itself as
“title-holder”.

61. Again, Cameroon gives the impression of being a title-holder,
which it has repeated many times. Cameroon has referred to all those
relevant instruments as the exclusive deciding factor in this case. Nigeria
equally presents its case in a similar manner to that of Cameroon.
Nigeria accepts in principle that all those instruments are relevant to the
determination of the delimitation and demarcation of the Lake Chad
basin, but, in addition, Nigeria says that this boundary described by inac-
curate maps and incomplete or defective instruments must be interpreted
in order to give an effective and legal boundary delimitation. Further-
more, Nigeria contends that other principles of delimitation must be
taken into consideration as decided by the Chamber of this Court in the
Frontier Dispute (Burkina FasolRepublic of Mali) case. Hence, Nigeria
is saying that historical consolidation and effectivité are all relevant fac-
tors that are to be taken into consideration in the interpretation of the
delimitation of the Lake Chad Basin. Contrary to the decision of the
Court, this effectivité will serve a corrective or amending role in this case
by modification, adjustment and variation as the case may be in all the
relevant places.

62. In other words, the position of Nigeria could simply be perceived
thus: that despite the endorsement of all the relevant instruments and
declarations in the early part of the twentieth century, movement of
people within and around the Lake Chad area has never been static. In
the absence of any conclusive and proper delimitation and demarcation
in these places, settlements have been recognized by both Parties and this
must be read into these instruments, if the same have to be interpreted in
the year 2002, a period of well over 80 years. The Court must recognize
the status quo ante in order to do justice and steer a path of peace and
stability of relations in the region.

THE BAKASSI PENINSULA

63. As regards the Bakassi Peninsula (including the land boundary),
the Court relies on
— the two agreements between Great Britain and Germany dated
(11 March 1913 and 12 April 1913 respectively);

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— the 1946 Order in Council;

— the Yaoundé Declaration of 14 August 1970;

— the Kano Agreement of September 1974;

— the Maroua Declaration of June 1975;

— the Yaoundé II Declaration of 4 April 1987;

— the League of Nations Mandate Agreements; and

— the United Nations Trusteeship Agreements.

64. In its Judgment, particularly in paragraph 325 III (A), (B) and (C),
the Court fails to take into consideration the situation on the ground in
the Bakassi Peninsula, despite the fact that no one is left in doubt that at
the moment this territory, and indeed since independence, is occupied
and firmly in possession of Nigeria and inhabited by Nigerian people;
hence my reason for voting against the decision of the Court. This is an
artificial decision that fails blatantly to take into consideration, contrary
to all the accepted principles of international law and practice, that effec-
tivités must invariably be given consideration in a matter of this nature.
Furthermore, the Court fails to take into account the submission of
Nigeria based on historical consolidation, which the Court now refers to
as mere theory. It is my strong view that, if the principle of historical con-
solidation is a theory, it is one that the Court, over the years in its judg-
ments (as will be shown later), has given its approval and support. The
decision of the Court, in my view, is rather a political decision than a
legal one.

65. Both Cameroon and Nigeria present very strong arguments over
their respective claims to the Bakassi Peninsula and both urge the Court
to “adjudge and declare” that sovereignty over the Bakassi Peninsula
belongs to it. In its Application instituting the proceedings (para. 20 (a)),
Cameroon asks the Court “to adjudge and declare: that sovereignty over
the Peninsula of Bakassi is Cameroonian, by virtue of international law,
and that that Peninsula is an integral part of the territory of Cameroon”.
In its pleadings, Nigeria requests the Court “as to the Bakassi Peninsula
.. . to adjudge and declare that sovereignty over the Peninsula . . . is
vested in the Republic of Nigeria” (Counter-Memorial of Nigeria, Vol. II,
Submissions, p. 834).

66. Cameroon’s case virtually stands on one leg, which it strongly pre-
sented, to the effect that what governs this claim is no other legal instru-
ment than the Agreement of 11 March 1913 concluded between Great
Britain and Germany. It considers the other leg of its argument, which is
uti possidetis juris and effectivité, to be secondary and supportive of its
main claim. Cameroon bases its view on what it perceives as the position
of international law in relation to treaties, relying very heavily on the
Judgment of the Chamber of the Court in the case of the Frontier Dis-
pute (Burkina FasolRepublic of Mali), particularly its paragraph 63

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(4 C.J. Reports 1986, p. 586). Cameroon strongly contends that once it
can lay claim to a legal title, then as title-holder, the Bakassi Peninsula is
part of its territory. In particular, it relies mainly on Articles X VIII-XXII
of the Agreement of 11 March 1913. Quite obviously, Cameroon’s case is
not strong on effectivités (which will be examined later), and hence it
stands or falls mainly on its claim to legal title, which the Court, in my
view, upholds, quite erroneously.

67. Nigeria rests its own case on four legs: first, it claims original title
evidenced by the Treaty of 1884 between Great Britain and the Kings
and Chiefs of Old Calabar; second, it relies very heavily on effectivités,
which it overwhelmingly substantiates; third, it claims the long and un-
interrupted occupation and administration of the Bakassi Peninsula, as
indicating the pattern of “conduct and practice” of the Parties involving
historical consolidation; and, fourth, Nigeria also claims title to the
peninsula based on the acquiescence by Cameroon over many years.

68. The case presented by Cameroon to the Court is that the Agree-
ment of 11 March 1913 between Great Britain and Germany is not only
significant but that it is the Agreement that determined the boundary of
the Bakassi Peninsula, ceding it to Germany. As far as Cameroon is con-
cerned, it is the 1913 Agreement that ultimately determines the boundary
although, according to Cameroon, there were a series of agreements
before that date locating the boundary at the mouth of the Rio del Rey.
These agreements are dated 29 April 1885, 27 July 1886, 1 July 1890 and
15 November 1893. Cameroon states further that the Agreement of
16 April 1901 is of considerable significance because it was the first time
that the boundary was located on the Akwayafe River, thus placing the
Bakassi Peninsula within German territory. Nigeria disagrees with this
view and strongly denies that the 1901 Agreement ever changed the
boundary from the Rio del Rey to the mouth of the Akwayafe. What
counsel for Nigeria said during the oral proceedings about the 1901 Agree-
ment is that:

“Far from these propositions being accepted ‘without hesitation’,
they call for the utmost hesitation. As a fact, the two Governments
did not reach agreement on those matters. And in law, no mere pro-
posals or reports, no agreements which have not entered into force,
can be held to constitute an acknowledgment of, or agreement to,
whatever it is that is being proposed. What the local officials in
Nigeria and Cameroon may have agreed was, when referred back to
these capitals, not approved by their Governments.” (CR 2002/8
(Watts), p. 53, para. 62.)

69. It appears to me that Nigeria is right on this point, because,
according to Cameroon’s pleadings regarding the Protocol of the

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Southern Nigeria-Cameroon Boundary Commission signed in April 1906,
which was signed by Captain Woodroffe, the then British Commissioner
and Captain Herrmann, the then German Commissioner, reference was
made to the “abortive Moor-Puttkamer Agreement of 16 April 1901”
(Memorial of Cameroon, Vol. I, pp. 69-70, para. 2.52).

70. It seems to me that, prima facie, both Parties recognize the signifi-
cance of the Agreement of 11 March 1913. However, whereas Cameroon
asserts that all 30 Articles should be given their full effect, Nigeria is ask-
ing the Court not to give any legal effect to Articles XVIII-XXTI pertain-
ing to the Bakassi Peninsula.

71. The reason why Nigeria is asking the Court not to enforce the pro-
visions of Articles XVITI-XXII of the Agreement of 1913, is that it holds
an original title, which it considers to be earlier in time and, for that mat-
ter, superior to the conventional title claimed by Cameroon on this part
of the boundary. Prior est tempore, prior est jure. On the other hand, if
the Court upholds the view of Cameroon regarding the effect of these
Articles, as it does, then its effect would be that the Agreement of 1913
concerning the boundary along the Bakassi Peninsula is binding between
Great Britain and Germany. However, the view of Nigeria is that what-
ever is the effect of those Articles, it cannot bind the Kings and Chiefs of
Old Calabar and for that matter Nigeria, after independence.

72. Cameroon stated that Nigeria cannot pick and choose, and that if
the Agreement is valid and binding, it must be so as a whole, and not
truncated. Cameroon went further to state that the argument of Nigeria
with regard to the five Articles in the 1913 Agreement cannot hold,
because of the effect of the provisions of Articles 44, 60 and 62, para-
graph 2 (a), of the 1969 Vienna Convention on the Law of Treaties.
Although the Court declines to deal with this issue, in my opinion I con-
sider it important that all these Articles be examined and interpreted in
relation to the 1913 Agreement. But before this exercise can be under-
taken, I must refer briefly to the claim of Nigeria as regards its original
title based on the Treaty of 10 September 1884 between the Kings and
Chiefs of Old Calabar and Great Britain. The stand of Nigeria is that
Great Britain, having signed a treaty of protection with the Kings and
Chiefs of Old Calabar in 1884, was incapable of ceding the Bakassi Penin-
sula to Germany in 1913. Nigeria argues that Great Britain had neither
the right nor the capacity to do so, that such transfer was mvalid, null and
void and that Great Britain was obviously in breach of its obligations to
the Kings, Chiefs and people of Old Calabar which were merely to “pro-
tect” them, and not to alienate their land. Nemo dat quod non habet.

Severability of Articles XVIH-XXII of the 1913 Agreement

73. Article 62, paragraph 2 (a), of the Vienna Convention on the Law
of Treaties should be treated first. This paragraph reads: “A fundamental
change of circumstance may not be invoked as a ground for terminating
or withdrawing from a treaty.” In my view, this provision is not appli-

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cable to the request of Nigeria that these five Articles in the 1913 Agree-
ment ought to be expunged. Nigeria is not asking for the withdrawal or
termination of the Treaty. In fact, Nigeria’s position regarding the
1913 Treaty can be divided into three.

74. First, Nigeria observes that there are certain anomalies, inaccura-
cies or defects in the Agreement that need to be “cured” by the Court
through interpretation, but Nigeria does not say that these provisions, if
considered relevant in another segment, may be rendered unenforceable
or terminated.

75. Second, there is the sector of the boundary from Pillar 64 to
Pillar 114, which both Nigeria and Cameroon accept as valid and which
neither calls for withdrawal nor termination. However, Nigeria contends
that the inherent defects in the five Articles in question render them un-
enforceable. Article 62, paragraph 2 (a), refers to “fundamental change”.
This is not a case of fundamental change, but one of “fundamental
defect” that cannot be cured because Great Britain was not only in
breach of its obligations to the Kings and Chiefs of Old Calabar but also
incapable of contracting any agreement of this nature, especially where
the agreement negates its obligations under the 1884 Treaty.

76. Third, this act of Great Britain also translated into an act that it
had no mandate to perform: res inter alios acta alteri nocere non debet.

77. Article 44 of the Vienna Convention needs also to be examined
thoroughly in view of the opposing positions of the Parties. Its relevant
part reads:

“1. A right of a party, provided for in a treaty arising under
article 56, to denounce, withdraw from or suspend the operation
of the treaty may be exercised only with respect to the whole treaty
unless the treaty otherwise provides or the Parties otherwise agree.

2. A ground for invalidating, terminating, withdrawing from or
suspending the operation of a treaty recognized in the present Con-
vention may be invoked only with respect to the whole treaty except
as provided in the following paragraphs or in article 60.

3. If the ground relates solely to particular clauses, it may be
invoked only with respect to those clauses where:

(a) The said clauses are separable from the remainder of the treaty
with regard to their application;

(b) It appears from the treaty or is otherwise established that
acceptance of those clauses was not an essential basis of the
consent of the other party or Parties to be bound by the treaty
as a whole; and

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(c) Continued performance of the remainder of the treaty would
not be unjust.”

78. Because the Article refers to treaties arising under Article 56, it
means that it is only relevant to treaties without denunciation, with-
drawal or termination provision, as is the case in the Agreement in ques-
tion. Therefore there is no doubt that this Article is very pertinent. Para-
graph | of the Article deals with circumstances of denouncing, withdraw-
ing or suspending the whole treaty. Since both Parties have expressed
their position that the Agreement is applicable, at least in part, then this
paragraph is inapplicable to the 1913 Agreement.

79. Therefore, the relevant paragraphs are paragraphs 2 and 3, because
they deal with the conditions of separability. Although paragraph 2 men-
tions Article 60, this Article is also not relevant because it deals with
cases of breaches, which is not the matter in this case. However, there are
three conditions that could allow for separability.

80. The first condition pertains to cases where the clauses are separ-
able. It is clear in the present case that the clauses we are dealing with in
Articles XVIII-XXII, pertaining to the Bakassi Peninsula, are separable.
The Articles dealing with Bakassi Peninsula are separate and independent
in this sector, which has been so treated by Cameroon and Nigeria.
Indeed, the Peninsula was the only independent sector filed in the first
Application that relates to the Agreement of 11 March 1913.

81. The second condition is that acceptance of those clauses was not
an “essential” basis of the consent of the other party. This cannot be
because the Agreement determines a long stretch of the boundary between
the European Powers. Although the negotiation resulting in the determi-
nation of this sector of the boundary took many years to conclude,
because the Parties were undecided as to whether the boundary should be
located east of the Rio del Rey or on the Akwayafe, the problem is one of
location and there is nothing “essential” about the sector.

82. The third condition is that the continued performance of the
remainder of the Agreement would not be unjust. Here the provision of
the paragraph 3 (c) is unclear and to some extent vague. The question is,
to whom would it be unjust? Is it to one of the Parties; or both Parties?
The subparagraph ought to have been drafted in a more specific and
elegant manner. However, whichever way we look at it, it may be suffi-
cient to consider the use of the word unjust as referring to any of the two
Parties. Here it is absolutely clear that invoking the provision of the five
Articles would be unfair to Nigeria because it claims original title, and
having regard to the fact that Great Britain could not give away the ter-
ritory that it did not own and which it did not possess as a colony, either
through conquest or treaty. Concluding this view, I see no reason what-

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soever why Articles X VIII-X XII should not be separated from the remain-
der of the Articles which both Nigeria and Cameroon agree are generally
enforceable and can be invoked to determine the remainder of the bound-
ary in this sector.

83. The Court in its conclusions refuses to consider the arguments
advanced by the Parties as to the severability (or non-severability) of
some of the treaty provisions (para. 217 of the Judgment), ie., whether
Articles XVIII-XXII are severable or not from the remainder of the
1913 Agreement. This is an agreement with 30 Articles, of which Nigeria
is urging the Court to separate these five Articles. As earlier stated,
separating these Articles will not in any way prevent the remainder of
the provisions from being implemented by way of delimitation of the
boundary.

84. The remaining provisions of the Agreement are untouched by
those expunged, since they are provisions standing on their own and their
application and implementation are not dependent on the five Articles,
thus, the remainder of the Articles can remain in force and binding on the
Parties where necessary.

The 1884 Treaty

85. On 11 March 1913, Great Britain concluded an agreement with
Germany apparently recognizing Germany’s sovereignty over the Bakassi
Peninsula. In my view, Great Britain had no authority to conclude such
an agreement with either Germany or any other State after it had entered
into a binding international treaty about 29 years before then, with the
Kings and Chiefs of Old Calabar. As a matter of fact and law Great
Britain was under an obligation not to enter into such an agreement with
Germany; and such an act was a breach of agreement to which Great
Britain was actionably liable in international law.

86. Firstly, the Bakassi Peninsula is part of the territory of the Efik
and Efut peoples of the Old Calabar, having settled first in Creek Town
and Duke Town, then extending to the entire Bakassi Peninsula.

87. Secondly, over the years, particularly after 1884, the British
adopted extensive trading links with the Kings and Chiefs of Old Cala-
bar. Counsel for Nigeria stated at the hearings that:

“The political and legal personality of the Kings and Chiefs of Old
Calabar were recognised in the treaty making of the British Crown.
Thus, in the period 1823-1884 no fewer than seventeen treaties were
made between the British Government and the Kings and Chiefs of
Old Calabar.” (Counter-Memorial of Nigeria, Vol. I, p. 71,
para. 5.11; emphasis added.)

Thus, Great Britain in 1884 entered into a treaty of protection only with
the Kings and Chiefs of Old Calabar.
88. Thirdly, Great Britain thus recognized the territory of the Kings

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and Chiefs of Old Calabar including the Bakassi Peninsula as its protec-
torate but not as its colony, and dealt with the City States of Old Calabar
as such de facto and de jure from 1884 till the time of independence of
Nigeria in 1960. Great Britain throughout this period (and even after
1913) referred to the territory of the City States of Old Calabar as
“Protectorate”.

89. Fourthly, Great Britain (in many treaties with the Kings and
Chiefs of Old Calabar and other European Powers such as Germany)
recognized and treated the City States of Old Calabar including the
peninsula of Bakassi as its area of influence only, which was indicatively
and factually one of its African markets for commerce.

90. Fifthly, Great Britain at no time acquired sovereignty over the ter-
ritory of the Kings, Chiefs and people of Old Calabar other than the obli-
gation of protection. If the 1913 Agreement is considered valid and bind-
ing, a fortiori the prior Treaty of 1884 should be equally valid and
binding — pacta sunt servanda.

91. Sixthly, the territory of the Kings and Chiefs of Old Calabar,
which includes the Bakassi Peninsula, is not terra nullius and Great Brit-
ain had no mandate or authority at any time to transfer to Germany the
territory of the City States of Old Calabar, thus the principle nemo dat
quod non habet.

92. Seventhly, the 1884 Treaty, being a public international treaty, is
deemed to be within the knowledge of Germany. Hence, Germany could
not claim ignorance of the Treaty of Protection between Great Britain
and the Kings and Chiefs of Old Calabar. Thus it is clear that Germany
and for that matter Cameroon could not claim sovereignty over the
Bakassi Peninsula.

93. The Court agrees with Cameroon in that it does not accept the
submission of Nigeria that the City States of Old Calabar have interna-
tional legal personality. As far as Cameroon is concerned, this is a myth
or a kind of mirage. [t argues that the City States of Old Calabar cannot
claim any international legal entity separate from the State of Nigeria.
During the oral proceedings counsel for Nigeria argued about the City
States of Old Calabar thus: “These City States were the holders of an
original historic title over the cities and their dependencies, and the
Bakassi Peninsula was for long a dependency of Old Calabar.” (Counter-
Memorial of Nigeria, Vol. I, p. 67 para. 5.2.)

94. Although Cameroon accepts that “[w]ithout doubt, Efik trading
took place over a vast area of what is now south-eastern Nigeria and
western Cameroon” (Reply of Cameroon, Vol. I, p. 247, para. 5.24), yet
it asserts that there were other ethnic groups in that area of the Bakassi
Peninsula, which at that time showed a “complex pattern of human
settlement” (ibid, Vol. I, p. 247, para. 5.24).

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95. In deciding whether the City States of Old Calabar is an interna-
tional legal entity, one should look to the nature of the Treaty entered
into between Great Britain and the Kings and Chiefs of Old Calabar in
1884. In the first place, this is not the first treaty of this kind signed by the
Kings and Chiefs. As I have already mentioned, Great Britain signed
altogether 17 treaties of this kind with the Kings and Chiefs of Old Cala-
bar. Secondly, Great Britain referred to it not as a mere agreement, a dec-
laration or exchange of Notes, but as a treaty — “Treaty with the Kings
and Chiefs of Old Calabar, September 10, 1884” (Counter-Memorial of
Nigeria, Vol. IV, Ann. 23, p. 109). How then could Great Britain sign a
document, and call it a treaty if it were not so? It would have been
described as an “ordinance” had it been a document involving a colony
of Great Britain. There is therefore no doubt that the City States of Old
Calabar have international legal personality.

96. Cameroon’s contention regarding the territorial extent of the City
States of Old Calabar is that Nigeria did not present a clear-cut picture,
or the extent of the territory. In effect, this is how Cameroon puts it in its
pleadings:

“As regards the territorial questions, Nigeria wants to have it both
ways. On the one hand, it states in its Counter-Memorial that
Bakassi was situated ‘within the domains of the Kings and Chiefs of
Old Calabar’ and, on the other, that ‘the Efut country about the Rio
del Rey” was covered by the declaration of the ‘Kings and Chiefs of
Efut’.. . Incidentally, it also maintains that the 1888 Treaty covered
not only the region around Rio del Rey but also ‘territory even
further to the East’... It is regrettable that Nigeria has refrained
from specifying the dividing line between the territory falling under
the authority of ‘Old Calabar’ in accordance with its claim, and the
territory belonging to Efut, and therefore pertaining to the Schedule
to the Treaty as it interprets it.” (Reply of Cameroon, Vol. I, p. 253,
para. 5.45.)

In addition, Cameroon contends that Nigeria is not forthcoming about
the nature and authority of Old Calabar and its title to the Bakassi
Peninsula (ibid., Vol. I, p. 254, para. 5.48). Further, it refers to the 1884
Treaty of Protection, which does not specifically mention the Bakassi
Peninsula.

97. In my view, answers to all these queries are contained in the plead-
ings, particularly those filed by Nigeria. First, Nigeria referred to the
works of many authors and what was said about the link of the City
States of Old Calabar to the Bakassi Peninsula and the surrounding area.
In this regard reference was made to the pre-colonial era in Bakassi.
Mention was made of the establishment of these City States like Duke
Town, Creek Town and Old Town (Obutong). A very vivid description

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of the federation of these City States was given by Dr. Kannan K. Nair
thus:

“The political system of Calabar might be thought of as a federa-
tion or conglomeration of loosely-knit towns. Each town was a
political unit with a territorial basis, its head having jurisdiction over
his own town or house and representing the founding ancestors of
his particular family. Each maintained its own administration and
had the right to enforce sanction[s] on others. Both these factors
point to the fact that each of the towns was recognized to be politi-
cally equivalent. The relations between the major towns — Duke
Town, Creek Town and Old Town — were in the order of inter-
town dealings. Thus, they were in their political relations similar to
European nation states in the eighteenth and nineteenth centuries.
Political power was ultimately resident in the segments rather than
in a central government. (Politics and Society in South Eastern
Nigeria 1841-1906, 1972, pp. 2-3).” (Counter-Memorial of Nigeria,
Vol. I, p. 67, para. 5.1.)

Nigeria also refers to some historical link of the Kings and Chiefs of
Old Calabar with the entire area of Bakassi as recorded in some of the
books (already put in evidence) of authors hke Captain J. B. Walker and
E. O. Efiong-Fuller.

98. Further relevant evidence are the maps presented by Nigeria,
which are annexed to its Counter-Memorial, particularly maps 13-22 in
the Atlas. A careful study of map 13 shows that Old Calabar (otherwise
called Cross River) covers the area where the Efiks and the Efuts had
settled even before 1888. It clearly shows that their area of authority
extends as far as the Rio del Rey, while indicating the boundary between
Old Calabar and the German area of influence. The definition of the area
under German influence was described by the independent Kings and
Chiefs in the Agreement between Kings Akwa and Bell and Woermann
and Jantzen & Thormahlen as follows,

“the Country called Cameroons situated on the Cameroons River,
between the River Bimba on the North side, the River Qua-Qua on
the South side and up to 4°10’ North lat. Hence, the extent of the
area covered by ‘Old Calabar’ goes as far as the territory to the west
of the area claimed by Kings Akwa and Bell. In other words, the
entire area of Bakassi Peninsula is within the territorial domain of
the City States of Old Calabar. This is illustrated in the map ‘Old
Calabar River’.” (Jbid., Atlas Map No. 27.)

99. Here I must stress the evidential value of these maps. Many of
them date back to the seventeenth century and indicate clearly the extent
of the territory of the Old Calabar people. In fact, the 1888 map of
H. H. Johnson, then the Vice-Consul of Oil Rivers, of the Niger Delta,

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indicates quite clearly that Old Calabar and the territory covered by the
Efut people went beyond the Rio del Rey and far to the east of that estu-
ary. It is fascinating to see these maps, many of which date from a period
between 1662 and 1888 (i.e., 1662, 1750-1772, 1729, 1794, 1822, 1871,
1879 and 1888), distinctly depicting the territory occupied by the Efiks
and Efuts and locating many of the important towns already mentioned.
Map 18 of the Atlas Map of Nigeria’s Counter-Memorial, prepared by
H. H. Moll, indicates very clearly that it was the Rio del Rey that sepa-
rates the territory of what he called “Kings City Callebar and Old Cal-
lebar” from “Afany Villages Old Camerones”. During the oral proceed-
ings it was argued by counsel for Nigeria (and undenied by Cameroon)
that when the then British Consul, Mr. Hewett, was reporting about the
1884 Treaty to the British Foreign Secretary he said: “The Chiefs of Tom
Shot country, of Efut, the Country about the Rio del Rey and of Indombi,
the country about the River Rumby, made declarations that they were
subject to Old Calabar.” (CR 2002/8 (Watts), p. 45, para. 31.)

100. This is a statement emanating from the proper source, ie., the
person who directly signed the 1884 Treaty with the Kings and Chiefs of
Old Calabar. The extent of the territory of the City States of Old Calabar
is thus clear and definite to the extent that it runs to the mouth of the Rio
del Rey. Equally there is later evidence in 1890 by the then British Con-
sul, Johnston, that:

“The trade and rule of the Old Calabar Chiefs extended, in 1887,
considerably further to the east than the Ndian River . . . The left or
eastern bank of the Akwayafe and the land between that river and
the Ndian is under the rule of Asibon or Archibong Edem III, a big
Chief of Old Calabar . . .” (Ibid, p. 41, para. 13.)

Johnston concluded that the Old Calabar had withdrawn from the lands
east of Ndian. Counsel for Nigeria stated that:

“So Johnston’s report was, in effect, that while the territory beyond
the Ndian might only arguably be Old Calabar’s, territory to the
west belonged ‘undoubtedly’ to Old Calabar. Bakassi, and the Rio
del Rey, are demonstrably to the west of the Ndian: Bakassi,
Mr. President and Members of the Court, was part of Old Calabar’s
heartlands.” (/bid., p. 41, para. 13.)

101. The view of Cameroon is that Nigeria’s claim in terms of the
extent of the territories of the Kings and Chiefs of Old Calabar is not
clear, but Cameroon agrees with Nigeria that three separate groups of
Kings and Chiefs of Old Calabar signed the Treaty of 10 Septem-
ber 1884. This is highlighted in the Treaty itself (Counter-Memorial of
Nigeria, Vol. IV, Ann. 23).

102. Although Cameroon stated that the Bakassi Peninsula was not

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specifically mentioned in the Treaty, it referred to the three Declarations
of the Kings and Chiefs of Old Calabar that appended their signature to
the Treaty. These are the Kings and Chiefs of Tom Shot, Efut and
Idombi. Furthermore, Mr. E. H. Hewett, the then British Consul, who
signed the Treaty of 1884 with the Kings and Chiefs of Old Calabar,
attested to the fact that “[t]he Chiefs of Tom Shot country, of Efut, the
country about the Rio del Rey, and of Idombi, the country about the
River Rumby, made declarations that they were subject to Old Calabar”
(Counter-Memorial of Nigeria, Vol. I, p. 94, para. 6.33).

103. In addition, the letter of Mr. Johnston, who took over as Consul
from Mr. Hewett, was more revealing and quite explanatory. His letter of
23 October 1890 to the Foreign Office revealed that the extent of the rule
of the Old Calabar Chiefs went as far as the base of the Cameroons and
beyond the Akwayafe River. The trade and rule of the Kings and Chiefs
of Old Calabar extended to the east of the Ndian River until Mr. John-
ston advised the Chiefs to limit their claim to the Ndian River. Upon
further advice, the Chiefs withdrew their claim for damages against the
German Government for the destruction of their settlements, and it was
obvious that they would not be prepared to yield over more territory in
favour of the Germans.

104. The Kings and Chiefs of Old Calabar exercised control over their
people through cultural, social and economic links. Many of the Kings
and Chiefs were traders, and were served by many of their subjects.
Cohesive control was ensured through the Ekpe Shrine. The main activ-
ity of the Kings and Chiefs was to secure the effective administration of
justice, develop resources for their territories and ensure peace and secu-
rity in their domains, with the co-operation and assistance of their
people, and in partnership with the British Government.

*
* *

105. As regards the territorial claim to the Bakassi Peninsula, it is the
Treaty of 1884 that Nigeria relies upon essentially and preponderantly. It
is the view of Nigeria that this Treaty, which is valid and binding, has the
legal binding force and effect to render the provisions of the five Articles
(1.e., Arts. XVIII-XXID in the 1913 Agreement between Great Britain
and Germany invalid and unenforceable against Nigeria. In other words,
with the 1884 Treaty remaining valid until the time of independence, the
five Articles mentioned above are not opposable to Nigeria. The Treaty
of 1884 clearly confirms the Bakassi Peninsula as the territory of the
Kings and Chiefs of Old Calabar, and at no time was it alienated to
Great Britain or any other colonial Power.

106. The Court, in its Judgment, does not agree with Nigeria’s claim

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based on the Treaty between the Kings and Chiefs of Old Calabar and
Great Britain of 10 September 1884, historical consolidation or effec-
tivité.

107. Of all these instruments relied on by the Court, the earliest and
perhaps the most important is the Anglo-German Agreement of 11 March
1913 and, in particular, its Articles XVIII-X XII that spell out the bound-
ary within the Bakassi Peninsula. This is what Cameroon considers as its
legal title. As against this claim, Nigeria pivots its claim partly on the
Treaty of 10 September 1884 as an indication of its own original title,
because it is this Treaty that demonstrates that the sovereign rights of the
Kings and Chiefs of Old Calabar as an independent legal entity recog-
nized under international law is indisputable.

108. In the Advisory Opinion on Western Sahara the Court explained
that:

“such agreements [such as this 1884 Treaty] with local rulers, whether
or not considered as an actual ‘cession’ of the territory, were regarded
as derivative roots of title, and not original titles obtained by occu-
pation of terrae nullius” (U.C.J. Reports 1975, p. 39, para. 80;
emphasis added).

This point on the international legal status of local rulers was amplified
by Malcolm N. Shaw in his book Title to Territory in Africa, Interna-
tional Legal Issues thus:

“it has been seen that practice demonstrates that the European colo-
nisation of Africa was achieved in law not by virtue of the occupa-
tion of a terra nullius but by cession from local rulers. This means
that such rulers were accepted as being capable in international law
not only of holding title to territory, but of transferring it to other
Parties.” (P. 45.)

109. Although neither the Treaty of 1884 nor the Consular Reports
suggest that it was concluded between two sovereign States, it can also be
said that the Treaty or the Consular Report suggest nothing to the con-
trary. In fact, it appears to me that reference to the agreement as a treaty
brings it into the international instruments realm. However, whatever
may be considered as vitiating the Treaty of 1884 between Great Britain
and the Kings and Chiefs of Old Calabar (and, in my view, there is none),
would equally apply to the derivative root of title of Germany which it
entered into with the local rulers of Cameroon also in 1884.

110. In view of the jurisprudence of the Court cited above, one impor-
tant aspect which escapes the consideration of the Court in determining
the nature, terms and validity of the 1884 Treaty is to compare it with
what was contemporaneously happening in Cameroon around the same

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time. In fact, the Court ought to trace the derivative root of title of
Germany or what entitles it to enter into the 1913 Agreements with
Great Britain. In other words, the Court is bound to ask what sovereign
rights Germany had over the Cameroonian territory. Both Nigeria and
Cameroon exhibit the relevant documents in their pleadings.

111. The claim to title by Germany emanates from at least four
treaties involving the Kings, Chiefs and the rulers of Cameroon. They
are:

— The Agreement with the Chiefs of Bimbia of 11 July 1884 (Counter-
Memorial of Nigeria, Vol. IV, Ann. 17, p. 79);

— The German Proclamation of Protectorates on the West Coast of
Africa of 12 July 1884 (ibid., Ann. 18, p. 83);

— The Agreement between Kings Akwa and Bell and Woermann and
Jantzen & Thormahlen of 12 July 1884 (ibid., Ann. 19, p. 87); and

— The Agreement between Woermann and Jantzen & Thormahlen and
Dr. Nachtigal, Consul-General and Imperial Commissioner for the
Coast of West Africa of 13 July 1884 (ibid., Ann. 20, p. 93).

112. These Treaties or Agreements including the Proclamation are
important to the issue of title in this case. In the first place these Agree-
ments trace the link between the rulers of Cameroon with German
traders with whom they first entered into agreement to surrender sover-
eignty over their territory for consideration called “dash”. These traders
(Woermann, Jantzen, Thormahlen of Hamburg and Ed. Schmidt and
Captain Johann) in turn passed their territorial title to Dr. Nachtigal,
the then Consul-General and Imperial Commissioner for the Coast of
West Africa. Hence, through this process Germany was able to proclaim
Cameroon as its protectorate.

113. From the explanations given as regards these documents, certain
indisputable facts now evolve. Contrary to the decision of the Court, the
German Proclamation of 12 July 1884 did not mention a phrase like
“colonial protectorate”. The heading of the Proclamation reads “German
Protectorate Togo Lands Cameroons, No. 212. — NOTES on German
Protectorates on the West Coast of Africa”. Some parts of this Proclama-
tion of 12 July 1884 need to be quoted for emphasis:

“Cameroons. Togoland. Slave Coast, &c.

On the 12 July, 1884, a German Protectorate was proclaimed over
the whole of the Cameroons District, and on the 15th October of the
same year, the following official communication was made by the
German Government to the principal Powers of Europe and to the
United States Government, notifying the exact extent of territory on

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the West and South-West Coasts of Africa which had been placed
under the protection of the German Empire ;—

Baron von Plessen to Earl Granville.
German Embassy, 15th October, 1884.
( Translation}

The Government of His Majesty the Emperor, with a view to
insure more effectually German commercial interests on the West
Coast of Africa, has taken certain districts of this coast under its
protection. This has been effected in virtue of Treaties which have
been in part concluded by Dr. Nachtigal, the Consul-General dis-
patched to West Africa, with independent Chiefs, and partly in vir-
tue of applications for protection made by Imperial subjects, who
have acquired certain tracts by covenants with independent Chiefs.”
(Counter-Memorial of Nigeria, Vol. IV, Ann. 18, p. 83; emphasis
added.)

114. Consequently, having regard to the content of the Proclamation
referred to above, and within the intertemporal law of the period, it is
clear that the derivative root of title claimable by Germany is in virtue of
treaties which Dr. Nachtigal, the then German Consul-General entered
into with “independent Chiefs” of Cameroon and partly in virtue of
applications made on behalf of imperial subjects who have acquired cer-
tain tracts by covenants with independent Chiefs. It can therefore be
clearly emphasized that the German derivative root of title emanated
from its treaty with the Kings and Chiefs and the transfer of sovereignty
by German subjects, the terms and conditions of which include con-
sideration of quid pro quo on the basis of “dash” for territorial transfer
to the Government of Germany. Germany was therefore in a position to
say that these instruments enabled it to enter into the 1913 Agreement
with Great Britain, as its derivative root of title.

115. What then is the derivative root of title of Great Britain?
Great Britain cannot claim that its derivative root of title is based on the
mere Treaty of Protection entered into with the Kings and Chiefs of Old
Calabar. The Treaty did not transfer sovereignty from the Kings and
Chiefs of Old Calabar to Great Britain. It is clearly a treaty of protection
and no more. Contrary to Great Britain’s intention about Lagos as a
colony, it was not prepared to acquire any colony in the Old Calabar,
and this I will refer to again later in my opinion. It can therefore be said
that since there was no intention either by Kings, Chiefs and people of
Old Calabar to transfer territorial sovereignty to Great Britain, sover-
eignty over the Old Calabar including Bakassi remained with the rulers
and people of Old Calabar.

116. The issue now is what is the legal effect and legal significance of
this Treaty of 1884 between Great Britain and the Kings and Chiefs of
Old Calabar? First to be considered is whether this instrument is a treaty

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properly so called. Unhesitatingly, my view is that it is a valid and bind-
ing international treaty, according to its form and text.

117. Before examining the Treaty itself, it must be borne in mind that
each treaty, like any given case, must be interpreted according to its
terms and conditions. In the Advisory Opinion of the Permanent Court
of International Justice in the case of Nationality Decrees Issued in Tunis
and Morocco, the Court observed:

“The extent of the powers of a protecting State in the territory of
a protected State depends, first, upon the Treaties between the pro-
tecting State and the protected State establishing the Protectorate . . .
In spite of common features possessed by Protectorates under inter-
national law, they have individual legal characteristics resulting from
the special conditions under which they were created, and the stage
of their development.” (Advisory Opinion, 1923, P.C.LJ., Series B,
No. 4, p. 27.)

Intrinsically, the instrument is described as a treaty in its title as “Treaty
with Kings and Chiefs of Old Calabar, September 10, 1884” (Counter-
Memorial of Nigeria, Vol. IV, Ann. 23, p. 107). Again in its provision on
its operative date, the instrument starts: “This Treaty shall come into
operation . . .” (Jbid., Vol. IV, Ann. 23, p. 111; emphasis added.)

118. In the Treaty, there is clear evidence that it was based on an
understanding of quid pro quo. While Great Britain agreed to protect the
City States of Old Calabar, the Kings and Chiefs in turn agreed to pro-
tect British merchant ships “wrecked within the Old Calabar territories,
the Kings and Chiefs will give them all the assistance in their power, will
secure them from plunder . . .” (ibid., Vol. IV, Ann. 23, p. 155; emphasis
added).

119. The legal force and legal significance of the Treaty of 10 Septem-
ber 1884 is therefore as follows:

(a) the Treaty was valid and binding between Great Britain and the
Kings and Chiefs of Old Calabar — pacta sunt servanda;

(b) the territorial extent of the land of the Kings and Chiefs of Old
Calabar as City States of Old Calabar was well known and clearly
defined by descriptions and map illustrations attached to the
Nigerian Counter-Memorial and Rejoinder;

(c) having signed this Agreement with the Kings and Chiefs of Old
Calabar, Great Britain was under obligation to protect Old Calabar
territories and did not acquire sovereignty over the territories of the
Kings and Chiefs of Old Calabar;

(d) for Great Britain to enter into an agreement in 1913 with Germany
amounted to a serious breach of its international obligation against

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the territorial rights of the Kings and Chiefs of Old Calabar;

(e) Great Britain could not give away what did not belong to it. The
Island of Palmas case is an illustrative example. Just as the
United States had no sovereignty over the Island of Palmas, ceded
to it by Spain, so it is that Germany could not claim any conven-
tional title over the Bakassi Peninsula. Max Huber, in the Arbitra-
tion Award states: “It is evident that Spain could not transfer more
rights than she herself possessed.” (United Nations, Reports of
International Arbitral Awards (RIAA), Vol. II, p. 842.) Huber
further adds that: “It is evident that whatever may be the right con-
struction of a treaty, it cannot be interpreted as disposing of the
rights of independent third Powers” (ibid. ) ;

(f) as already indicated, there is no doubt that the Kings and Chiefs of
Old Calabar have legal personality in international law.

120. The Western Sahara Advisory Opinion of 1975 is a glaring
example on this issue. The international personality was clearly demon-
strated over the territories of the Kings and Chiefs of Old Calabar when
they rejected certain provisions in the draft Treaty of 1884, particularly
Article VI which guarantees free trade in every part of their territory.
Thus, the 1913 Agreement did not deprive the Kings and Chiefs of Old
Calabar of sovereignty over their territory and the right to this sover-
eignty continued till the time of Nigeria’s independence in 1960. It is
highly undesirable to create any distinction between the situation
in the Western Sahara case (1 C.J. Reports 1975) and the present case,
simply because one is in north Africa and the other in sub-Saharan
Africa.

121. Consequently, and to the extent that the 1913 Agreement ceded
Bakassi Peninsula to Germany, Nigeria argued in its pleadings that this:

“would be against the nature and terms of Great Britain’s 1884
Treaty of Protection with Old Calabar, against the interests of the
inhabitants, against the financial interests of the title holders of Old
Calabar who should have been compensated, against the recognised
westward limit of the German Protectorate, against earlier under-
takings by Germany to respect the Rio del Rey as the boundary and
to make no acquisitions to the west of it, and against Germany’s
acknowledgement and understanding that the Treaty was not
concerned with the acquisition or cession of territory” (Counter-
Memorial of Nigeria, Vol. 1, p. 170, para. 8.52).

122. While Cameroon contends that the difference between a pro-
tectorate, protected State or colony is rather blurred, and that either is

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tantamount to a colony in effect, Nigeria strongly disagrees with this view
and gave many reasons. On the part of Cameroon, the misunderstanding
in the use of the words protectorate or protected States or colony is quite
understandable. The Agreement between the Kings of Akwa and Bell on
the one hand and Woermann and others on the other hand, dated
12 July 1884, although referred to as an Agreement for Protection was in
fact a surrender of sovereignty which in effect means that Cameroon
from that date became a colony of Germany. The same is true of the
other Agreement with the Chief of Bimbia of 11 July 1884. But this
muddled concept is alien to the British system of administration.

123. In 1883 (a year before the 1884 Treaty) Sir Edward Hertslet, the
then librarian of the British Foreign Office and an expert in international
law, defined a protectorate thus:

“A Protectorate implies an obligation on the part of a powerful
State to protect and defend a weaker State against its enemies, in all,
or specified eventualities . . . The usual form of establishing a Pro-
tectorate is by the conclusion of a treaty, either between the more
powerful State which has undertaken to defend or protect the weaker
one, and the weaker state itself, or between the protecting Power and
other Powers, relating to such protection . . .” (Counter-Memorial of
Nigeria, Vol. I, p. 102, para. 6.46.)

124. In fact at this period, the 1880s, the foreign policy of Great
Britain was not to create or acquire more colonies but rather to enter
into treaties of protection:

“Lord Granville [Secretary of State for Foreign Affairs] will
remember that it was recommended by the Committee of the Cabi-
net which considered the question that there should be no attempt at
present to create a new British Colony or Settlement, with all the
necessarily expensive machinery of government, but that the districts
to be taken over should continue for the present under such control
and supervision as the Consul for the Bights of Benin and Biafra can
exercise by means of visits paid frequently as circumstances may per-
mit...” Ubid., Vol. I, p. 103, para. 6.48.)

125. One of the English Judges in 1910 defined “Protectorate” thus:
“The protected country remains in regard to the protecting State a
foreign country . . .” Ubid., Vol. I, p. 122, para. 6.81.)

126. Thus, protectorates are neither colonial protectorates nor colo-
nies. Protectorates are to all intent and purposes international legal per-
sonalities and remain independent States and they are not “colonial pro-
tectorates” of the protecting Powers. Therefore, after the Treaty of 1884,
the City States of Old Calabar and their territories were simply protec-

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torates of Great Britain. Before and after 1913 these City States of Old
Calabar remained independent protectorates. There is nothing from the
actions and instruments during this period which could describe the Old
Calabar including Bakassi and other areas being claimed by the Kings
and Chiefs, as a colony of Great Britain, nor is there anything in the
Treaty indicating that Old Calabar, including Bakassi, acquired the sta-
tus of a colonial protectorate. Even Great Britain did not describe the
territory as such and this cannot be done by any inference. In line with
the provision of Article 31 of the 1969 Vienna Convention on the Law of
Treaties and having regard to customary international law, the ordinary
meaning to be given to the word “protectorate” is protectorate and not
colonial protectorate. Great Britain at no time possessed territorial con-
trol or sovereignty over them. As far as Great Britain was concerned they
were foreign countries and they were so treated by the British Foreign
Office. Great Britain was therefore under a strict legal obligation to pro-
tect the rights of the Kings and Chiefs of Old Calabar in international
law and not to transfer their territorial sovereignty to another State with-
out their knowledge and consent.

Historical Consolidation and Effectivités in Bakassi

127. Historical consolidation is Nigeria’s strong point in its claim to
the territory of the Bakassi Peninsula. This claim is based on the original
title of the Kings and Chiefs of Old Calabar that has existed for a long
time and as evidenced by the Treaty of 1884 with Great Britain. The
Bakassi Peninsula has over the years been in physical possession and
occupation of the Kings and Chiefs of Old Calabar since they settled
there in the seventeenth century. They were in peaceful occupation
throughout that period till 1884 and up until the time of the Agreement
between Great Britain and Germany in 1913. This right of sovereignty
over all these territories coupled with possession continued during the
period of the Mandate of the League of Nations as well as the period of
Trusteeship till the time of independence. Nothing therefore affected
their territorial rights and occupation of the same, even after the Agree-
ment of 1913. The Kings and Chiefs of Old Calabar were not parties to
the 1913 Agreement nor were they consulted.

The constant questions which counsel for Nigeria asked throughout
the oral proceedings and which the Court fails to address or answer in its
Judgment are: who gave Great Britain the right to give away Bakassi?
And when? And how?

128. Whatever may be the legal status of the 1913 Agreement, it has
no binding force over and above the original title, or the basic possessory

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rights of the Kings and Chiefs of Old Calabar, and thus they are not
affected by it.

129, Cameroon raises a number of objections to Nigeria’s claim to
historical title. These objections centred on the issues of effectivités,
stability of frontier and acquiescence. However, these objections cannot
defeat the claim to historical title by Nigeria.

130. Nigeria has four bases of claim to original title which are as
follows:

(a) long occupation by Nigeria and by Nigerian nationals constituting
an historical consolidation of title and confirming the original title
of the Kings and Chiefs of Old Calabar which title vested in Nigeria
at the time of Independence in 1960;

(b) effective administration by Nigeria, acting as sovereign, and an
absence of protest;

(c) manifestations of sovereignty by Nigeria together with the acqui-
escence by Cameroon in Nigerian sovereignty over the Bakassi
Peninsula;

(d) recognition of Nigerian sovereignty by Cameroon (Counter-
Memorial of Nigeria, Vol. I, p. 211, para. 10.2).

*
* *

131. Since the original title of the City States of Old Calabar rests with
the Kings, Chiefs and people of Calabar with all the rights over their
territories, this remained so until the time of independence of Nigeria on
1 October 1960.

132. It must be borne in mind at all times that a legal title boundary
can be shifted, modified or adjusted to give room for the practice and
conduct of the inhabitants on the ground along such a boundary in
accordance with Article 31, paragraph 3, of the 1969 Vienna Convention
on the Law of Treaties.

133. Furthermore, Nigeria claims that by virtue of its original title
based on its historical consolidation, its rights to the Bakassi Peninsula
survive to the time of the 1913 Agreement and beyond. It claims that:

(a) in and before 1913 the Kings and Chiefs of Old Calabar possessed
sovereignty over the Bakassi Peninsula; and

(b) the Anglo-German Agreement of 11 March 1913, in so far as it pur-
ported to transfer to Germany a territorial title which Great Britain
did not possess and which it had no power or authority to transfer,
did not transfer territorial sovereignty over Bakassi to Germany.
The status quo ante was undisturbed, and title accordingly remained

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vested in the Kings and Chiefs of Old Calabar (Counter-Memorial
of Nigeria, Vol. I, p. 203, para. 9.73).

134. The Court denies Nigeria’s claim to the Bakassi Peninsula based
on its argument of historic consolidation (para. 220 of the Judgment).
The claim of Nigeria based on historical consolidation is not its invention
and it is far from being a mere theory. Jurisprudentially, historical con-
solidation evolves from one of the early cases of the Court. In the Fish-
eries (United Kingdom v. Norway) case of 1951 the Court decided that
against all other States, Norway had title to the territorial sea that she
delimited by a system of straight baselines since 1869. The evolution of
this principle is fundamentally based on toleration. For many years many
States, including the United Kingdom, have come to recognize the “title”
to this territorial sea as claimed by Norway. In the presentation of its
submission, Norway referred to an “historic title” by saying that history
was invoked together with other factors to justify her exceptional rights
to this particular area of the sea. The United Kingdom raised certain
contradictions and uncertainties discovered in the general Norwegian
practice. The Court considered that too much importance or emphasis
need not be attached to these contradictions. The Court therefore decided:

“In the light of these considerations, and in the absence of con-
vincing evidence to the contrary, the Court is bound to hold that the
Norwegian authorities applied their system of delimitation consis-
tently and uninterruptedly from 1869 until the time when the dispute
arose.

The general toleration of foreign States with regard to the Nor-
wegian practice is an unchallenged fact. For a period of more than
sixty years the United Kingdom Government itself in no way con-
tested it.” (Z C.J. Reports 1951, p. 138.)

The case that follows in the footsteps of the Fisheries case is the Minquiers
and Ecrehos case of 1953, where the Court observed that:

“Both Parties contend that they have respectively an ancient or
original title to the Ecrehos and the Minquiers, and that their title
has always been maintained and was never lost. The present case
does not therefore present the characteristics of a dispute concerning
the acquisition of sovereignty over terra nullius.” (C.J. Reports
1953, p. 53.)

The Court then went on to decide that: “What is of decisive importance,
in the opinion of the Court, is not indirect presumptions deduced from

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events in the Middle Ages, but the evidence which relates directly to the
possession of the Ecrehos and Minquiers groups.” (1 C.J. Reports 1953,
p. 57.)

135. This principle has evolved over the years, side by side with effec-
tivités, that a territory that is not terra nullius, occupied by inhabitants,
over many years with open claim of territorial sovereignty over the
territory, undisturbed, uninterrupted and without any hindrance what-
soever, becomes a matter of recognition under international law in the
name of historical consolidation. A long list of distinguished jurists and
writers on international law including Charles De Visscher, Sir Rob-
ert Jennings and Professor George Schwarzenberger have lent their sup-
port to this principle.

136. Apart from the case of Minquiers and Ecrehos and the subse-
quent case of the Western Sahara Advisory Opinion, the Judgment of the
Chamber in the Land, Island and Maritime Frontier Dispute (El Salva-
dor! Honduras: Nicaragua intervening) also supported this principle thus:
“In the first place, it should not be overlooked that Spanish colonial
divisions in Spanish America did not individually have any ‘original’ or
‘historic’ titles, as those concepts are understood in international law.”
(1 C.J. Reports 1992, p. 565, para. 345.) The Judgment went on to state:

“Where the relevant administrative boundary was ill-defined or its
position disputed, in the view of the Chamber the behaviour of the
two newly independent States in the years following independence
may well serve as a guide to where the boundary was, either in their
shared view, or in the view acted on by one and acquiesced in by the
other . .. This aspect of the matter is of particular importance in

relation to the status of the islands, by reason of their history.”
(Ibid. )

137. Whilst referring to cases, reference should also be made to the
development of this principle even when it conflicts with conventional or
legal title, since the Court takes the view that invocation of the doctrine
of consolidation of historic titles cannot vest title to Bakassi in Nigeria,
“where its ‘occupation’ of the peninsula is adverse to Cameroon’s prior
treaty title” (para. 220 of the Judgment). The case in view is the Frontier
Dispute (Burkina Faso! Republic of Mali) case. Much reliance has been
placed on this case by Cameroon, particularly paragraph 63 thereof,
which incidentally has been cited in the Land, Island and Maritime Fron-
tier Dispute (El SalvadorlHonduras: Nicaragua intervening) case in
1992. The clear indication in the present case is that while giving due
recognition to legal title, the City States of Old Calabar’s effectivités on
the ground, the toponomy of Bakassi, the administration of Bakassi as part
of Nigeria in the period 1913-1960, exercise of authority by traditional
rulers, acts of administration by Nigeria after independence in 1960

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involving effectivités and peaceful administration, maintenance of public
order and investigation of crimes, granting of oil exploration rights,
public health, public education, participation in parliamentary elections,
collection of custom duties, use of Nigerian passports by residents of the
Bakassi Peninsula, and even evidence of Nigerian internal State rivalry
over Bakassi, give the original title of Nigeria a preference. All these are
catalogued and documented with a compendium of annexes as “fulfil-
ment materials” to demonstrate beyond doubt the claim of Nigeria over
Bakassi by historical consolidation. Cameroon did not deny most of
these claims by Nigeria but all that it relies on is the conventional title
based on the Agreement of 11 May 1913, which the Court accepts.

* * *

138. What was the relevance of German effectivités after 1913? For
Germany to have set up effective administration in the Bakassi Peninsula
between 11 March 1913 and August 1914, when World War I broke out,
would have been, at least, of tacit significance because it would clearly
indicate Germany’s occupation of the territories claimed by the Kings
and Chiefs of Old Calabar. In addition, it would have tested the ground
as to whether such occupation would be accepted by the Kings, Chiefs
and people of Old Calabar in the Bakassi Peninsula. This in turn would
have served as a manifestation of Germany’s claim of sovereignty.
Presumably, that would have created an incident or even a revolt. For
example in 1913, the same year in which the Agreement was concluded,
the Kings and Chiefs of Old Calabar protested vigorously, both in Calabar
and in London, against an apparent proposal by the British Government
to amend the land tenure system which was then applicable in that area.
The protest was so pronounced that it was debated in the British Parlia-
ment at that time, and the British Government denied entertaining such a
proposal. Cameroon did not deny the fact that there was no effectivités
on the ground by Germany between 1913 and 1914. After the war, there
was still no evidence of effectivités, even when Britain, France and
Belgium occupied the then German colonies and protectorates. Much
of Cameroon’s response to Nigeria’s position on this point has nothing
to do with effectivité. Instead, Cameroon contents itself with dealing
with the non-ratification of the 1913 Agreement, both nationally and
internationally.

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139. The League of Nations came into existence after World War I,
and as a result, the southern part of Cameroon was placed under the
administration of Great Britain, based on a mandate agreement. After
World War II, in 1945, Southern Cameroon came under the Trusteeship
of Great Britain. France was entrusted with the administration of
Cameroon during the Mandate and Trusteeship period. Cameroon’s
argument is that the situation of the administered territories changed
during the Mandate and Trusteeship period, because Great Britain and
France were under strict directives of the League of Nations (after 1919)
and United Nations (after 1946) to adhere to the agreements entered into,
concerning both the northern and southern Cameroons.

140. Cameroon contends that these administered territories were
defined by the 1919 and 1931 instruments, and that the Administering
Powers were unable to alter the boundaries without the consent of the
League of Nations and subsequently the United Nations, who through
their appointed committees constantly monitored the administration of
the territories as assigned to the Administering Powers. Thus, Cameroon
argues that these acts confirm the boundaries as already recognized.

141. Nigeria does not deny some of these historical facts. The point
made by Nigeria in substance is that all this did not affect the territorial
rights of the Kings and Chiefs of Old Calabar, and neither did it affect
the rights of the Republic of Nigeria later in 1960. Much of the activities
of the Council and the United Nations Fourth Committee did not go
beyond the presentation of proposals, discussion about the possibility of
delimitation and demarcation and obtaining reports about the adminis-
tration of these territories (CR 2002/4 (Ntamark), p. 21, para. 13). How-
ever, counsel for Cameroon explained that,

“on a number of occasions, the Committee concerned itself with
proposals of a relatively minor nature to adjust the line so as to
respect ethnic groupings. Of course, one cannot exaggerate the efforts
made and all took place within the possibility reserved in the man-
date instruments for minor modifications.” (/bid., p. 20, para. 10.)

€

Could these adjustments and modifications
groupings” relate to the Bakassi Peninsula ?

‘so as to respect ethnic

142. It is remarkable, that both the instruments of the Mandate and
Trusteeship touched on the need for adjustments and modifications to
the boundary “in the interest of the inhabitants” (Counter-Memorial of
Nigeria, Vol. V, Anns. 51 and 56). Coincidentally, this need for
adjustments and modifications was mentioned in Articles I of both the
Mandate and the Trusteeship instruments. Did they have the problem

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of the Bakassi Peninsula in mind? As mentioned earlier, the Court,
in its Judgment, fails to give effect to these concerns, which still subsist
till today, unresolved.

143. The consistent view of Nigeria, as expressed in its pleadings, is
that at all times, during the period of the Mandate and Trusteeship, the
Bakassi Peninsula remained the territory of the Kings, Chiefs and people
of Old Calabar and after 1960 it became part of Nigeria till this day:

“In fact, the overall pattern of Nigerian and British official con-
duct in relation to the Bakassi Peninsula has been remarkably con-
sistent for over a century. Whether as originally part of the domains
of the Kings and Chiefs of Old Calabar, or subsequently as part of
their domains but subject to rights of Great Britain under the Pro-
tectorate Treaty of 1884, or during the Mandate and Trusteeship
periods up to the time of independence in 1960, Bakassi has consis-
tently been administered from Nigeria and as part of the Nigerian
political entity.” (Reply of Nigeria, Vol. I, p. 66, para. 2.27; empha-
sis added.)

144. Nigeria further argues that while there may be differences in prin-
ciple between Mandate and Trusteeship on the one hand, and adminis-
tration and protectorate on the other, there is no difference as such on
the ground and in practice. In effect these changes have no effect on
Nigeria’s claim to historical title or effectivité. Nigeria explains this posi-
tion thus:

“In the event, after World War I the whole of the mandated ter-
ritory of the British Cameroons came to be administered as part of
the Nigeria Protectorate, so that the distinction between mandated
and protectorate territory, while acknowledged in principle, had vir-
tually no practical significance for the people of Bakassi and Cala-
bar. There was no practical day-to-day need for the British of local
administration to distinguish between what might have been former
German territory and what was British protected Nigerian terri-
tory.” (Counter-Memorial of Nigeria, Vol. I, p. 182, para. 9.11.)

Moreover, “[t]here was in any event no question of non-British rule, and
no question of putting an end to the traditional authority of the Kings
and Chiefs of Old Calabar” (ibid., Vol. I, p. 182, para. 9.12) and “[elffec-
tive authority continued to be exercised by the traditional source of
power and authority in the Peninsula, namely by the Kings and Chiefs of
Old Calabar” (ibid. ).

145. In my view, and contrary to the Court’s decision, the argument of
Nigeria, which in effect is based on its historical consolidation and effec-

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tivités, is sound, having regard to all the comments I have made earlier.
Counsel for Nigeria at the hearings summarized its arguments thus:

“Britain itself, of course, as a party to the 1913 Treaty, was likely
to act on the assumption that that Treaty had determined the
boundary between the Protectorate and what was to be the British
Cameroons. But assumption, or belief, is not a basis for legal title;
no amount of British believing that Bakassi was in British Camer-
oons would be enough to make it so in law; no amount of mistaken
belief could retrospectively make good Great Britain’s lack of author-
ity to give away Bakassi; no amount of mistaken belief could give
Britain a power which the Treaty of Protection had clearly not given
it. All Britain’s actions in the Mandate and Trusteeship periods
which assumed the alienation of Bakassi from the Protectorate or
which might be construed as having that result were tainted in that
way. This applies whether they were acts of bureaucracy, or of local
administration, or of government, or of legislation (such as the Gov-
ernor’s Northern Region, Western Region and Eastern Region (Defi-
nition of Boundaries) Proclamation, 1954... For at all these times,
one has still to answer the crucial question: Who conferred on Great
Britain the authority to give away Bakassi? And when? And how?”
(CR 2002/8 (Watts), p. 64, para. 109.)

The Question of Legal Title

146. The issue of title looms very large in this case as both Parties
claim one form of title or the other. Reference has been made to it with
different descriptions, i.e., legal title, original title, conventional title and
historical title. In its presentation Cameroon claims sovereignty to the
Bakassi Peninsula, alleging that its right to sovereignty with regard to the
territory is its legal title derived, inter alia, from the Agreement of
11 March 1913 between Great Britain and Germany. On its part, Nigeria
claims to hold original or historical title, partly evidenced by the Treaty
of 10 September 1884 between the Kings and Chiefs of Old Calabar and
Great Britain. The question here is that of the meaning of title in the con-
text of this case and in international law. Cameroon tries to persuade the
Court to hold that the only meaning attributable to the word is a con-
ventional or legal title. The Court agrees with this. It appears to me that
“title” bears a broader meaning than that and ought to be interpreted not
necessarily or solely as documentary title but as the rights that a party
holds in relation to a territory. This, to my mind, includes not only legal
title but also possessory title.

147. In the case concerning the Land, Island and Maritime Frontier

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Dispute (El Salvador! Honduras: Nicaragua intervening) the Chamber of
the Court examined this issue of the meaning of title and defined it thus:

“The term ‘title’ has in fact been used at times in these proceedings
in such a way as to leave unclear which of several possible meanings
is to be attached to it; some basic distinctions may therefore perhaps
be usefully stated. As the Chamber in the Frontier Dispute case
observed, the word ‘title’ is generally not limited to documentary evi-
dence alone, but comprehends ‘both any evidence which may establish
the existence of a right, and the actual source of that right’ (CT.
Reports 1986, p. 564, para. 18).” (LCJ. Reports 1992, p. 388,
para. 45; emphasis added.)

148. Furthermore in the same Frontier Dispute (Burkina FasolRepub-
lic of Mali) case, the Court elaborated on the use of the words legal title
and effectivité thus:

“The Chamber also feels obliged to dispel a misunderstanding
which might arise from this distinction between ‘delimitation dis-
putes’ and ‘disputes as to attribution of territory’. One of the effects
of this distinction is to contrast ‘legal titles’ and ‘effectivités’. In this
context, the term ‘legal title’ appears to denote documentary evi-
dence alone. /t is hardly necessary to recall that this is not the only
accepted meaning of the word ‘title’. Indeed, the Parties have used
this word in different senses.” (7. C.J. Reports 1986, p. 564, para. 18;
emphasis added.)

149. In effect, it appears that the term “title” or even “legal title”
should be given its broad and liberal meaning to include not only the
strict documentary evidence, but also other evidence that could establish
the legal rights of the Parties.

150. The Court, whilst giving Judgment in favour of Cameroon, based
on its so-called legal title, dismisses the claim of Nigeria based on effec-
tivités as effectivités contra legem, despite the long occupation and
administration of the territory by Nigeria. In so deciding, the Court bases
its decision on its jurisprudence in the Frontier Dispute (Burkina Fasol
Republic of Mali) case. Once again, and with due deference, it is my
strong view that the Court failed to apply the full ratio decidendi of that
case, the relevant part of which is in paragraph 63, which pronounces
that:

“The role played in this case by such effectivités is complex, and
the Chamber will have to weigh carefully the legal force of these in
each particular instance. It must however state forthwith, in general
terms, what legal relationship exists between such acts and the titles
on which the implementation of the principle of uti possidetis is
grounded. For this purpose, a distinction must be drawn among
several eventualities. Where the act corresponds exactly to law, where

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effective administration 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 territory 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. In the event that
the effectivité does not co-exist with any legal title, it must invariably
be taken into consideration. Finally, there are cases where the legal
title is not capable of showing exactly the territorial expanse to
which it relates. The effectivités can then play an essential role in
showing how the title is interpreted in practice.” (LC.J. Reports
1986, pp. 586-587, para. 63; emphasis added.)

151. The relevant paragraph quoted above spells out the relationship
between effectivité and legal title. The Court, whilst basing its decision on
this particular paragraph of its jurisprudence, ought to explain and apply
its text fully. The Court cannot apply one part of it and exclude the
other. This was the grave omission made by Cameroon whilst inter-
preting the paragraph in the Frontier Dispute (Burkina Fasol Republic
of Mali) case. Cameroon argues through its counsel, Professor Maurice
Mendelson, in a peculiar way thus:

“The reason for my discomfort is to be found in the Chamber’s
lapidary explanation of the role of effectivités in the case of the
Frontier Dispute (Burkina FasolRepublic of Mali), the pertinent
part of which, as you know, begins as follows: ‘Where the act cor-
responds exactly to law, where effective administration 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.’ Pausing there, this is
precisely Cameroon’s situation: having a good title, any evidence of
effectivités that it adduces are merely confirmatory. In our submis-
sion, on the other hand, Nigeria falls squarely within the second sen-
tence: “Where the act does not correspond to the law, where the
territory which is the subject of the dispute is effectively adminis-
tered by a State other than the one possessing the legal title, prefer-
ence should be given to the holder of the title.” That being so, logi-
cally, there is little more to be said. Hence my mild embarrassment
at addressing you on this subject.” (CR 2002/4 (Mendelson), p. 35,
para. 1.)

152. Obviously, the learned counsel for Cameroon has chosen to com-
ment on the first part of this paragraph leaving the subsequent para-
graphs unexplained. However, the subsequent paragraphs clarify the
position of effectivité:

“In the event that the effectivité does not co-exist with any legal
title, it must invariably be taken into consideration. Finally, there are

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cases where the legal title is not capable of showing exactly the ter-
ritorial expanse to which it relates. The effectivités can then play an
essential role in showing how the title is interpreted in practice.”
(4 C.J. Reports 1986, p. 587, para. 63; emphasis added.)

153. Was the Court misled? There is no doubt that according to para-
graph 63 preference ought to be given to the “holder of the title”. But
with due deference, this does not mean that the holder of the title is abso-
lutely entitled to sovereignty over the territory. All it indicates is that it
should have preference, but this preference is not absolute. It leaves an
equally legal right which the Court must grant to the party with effectivi-
tés. As explained in the final part of the above paragraph, “/ijn the event
that the effectivité does not co-exist with any legal title, it must invariably
be taken into consideration”. That is the consideration that the Court
must invariably give to effectivités in this regard. On a careful examina-
tion of the situation in the Bakassi Peninsula, the Court cannot rely on
this authority to decide that the claim of a title-holder is exclusive and
absolute.. The Court must take cognizance of the fact that Nigerians
have settled in Bakassi from time immemorial, that they owe allegiance
to their Kings and Chiefs, and that they have settled administration and
other civil activities as Nigerians there.

154. The Court, in paragraph 222 of its Judgment, enumerates
Nigeria’s territorial activities and acts of public and social administra-
tion in Bakassi. Mention is made of activities dating back to 1959, that is,
before Nigeria obtained its independence. The Court also accepts that
Nigeria confirms many of these activities in Bakassi with supporting
evidence and “in considerable detail” (para. 222 of the Judgment). The
Court also agrees with Nigeria that “[nJor is there any reason to doubt
the Efik and Effiat toponomy of the settlements, or their relationships
with Nigeria” (para. 221). Furthermore, the Court accepts as true the fact
that the provision of “education in the Bakassi settlements appear to be
largely Nigerian” (para. 222). It is for all these reasons that the Court
ought to find in favour of Nigeria based on historical consolidation and
effectivités.

MARITIME DELIMITATION

155. Cameroon claims that the maritime boundary should start from
the mouth of the Akwayafe, in reliance on its claim of a conventional
title, based on the Agreement of 1! March 1913 coupled with
map TSGS 2240 annexed thereto. On the other hand, Nigeria argues that
the delimitation should start from the mouth of the Rio del Rey, based

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on its historical consolidation. Having carefully weighed the arguments
of both Parties, my view runs contrary to the decision of the Court: the
maritime delimitation should start from the mouth of the Rio del Rey,
hence I voted against the decision of the Court in paragraph 325 IV (B)
of the Judgment.

156. Then there is the dispute as to whether any maritime delimitation
has already been carried out by the Parties.

157. The maritime boundary can be divided into two sectors: the first,
the delimitation up to point “G” and the second, after point “G” which,
according to the Parties, remains undelimited. The Agreements to which
the Court attributes the delimitation are: the Anglo-German Agreement
of 11 March 1913; the Cameroon-Nigeria Agreement of 4 April 1971,
comprising the Yaoundé II Declaration and the appended British Admi-
ralty Chart 3433; and the Cameroon-Nigeria Agreement of 11 June 1975
(the Maroua Declaration).

158. Cameroon claims that the adopted line was a “compromise line”
that arose out of the work of the Joint Commission set up to do the
same. Therefore, Cameroon argues that the first segment of the maritime
boundary from the mouth of the Akwayafe to point 12 was fixed on the
basis of a compromise line.

159. Nigeria expresses its position very clearly — with which I agree —
that it is not bound by these Declarations. The language of the Yaoundé
II meeting made it explicit that the meeting formed part of ongoing ses-
sions of meetings on the maritime boundary, subject to further discus-
sions at the subsequent meetings. This intention is confirmed by the
text of the contemporaneous Joint Communiqué, and by the internal
Nigerian Brief on the then forthcoming meeting of 20 May 1975.
Nigeria’s position after the Yaoundé II meeting was further elucidated in
the letter of 23 August 1974 from General Gowon of Nigeria to Presi-
dent Ahidjo of Cameroon.

The Maroua Declaration

160. Cameroon claims that the Declaration of Maroua is one of three
international legal instruments that delimit the course of the first sector
of the maritime boundary. Cameroon argues that the prolongation of the
maritime boundary southwards from point 12 to point G was agreed
when the two Heads of State “reached full agreement on the exact course
of the maritime boundary”.

161. Cameroon further explains that the explicit objective of the Agree-
ment was to extend the delimitation of the maritime boundary line
between the two countries, from point 12 to point G as evidenced in the
Joint Communiqué, signed by the two Heads of State (CR 2002/6 (Tomu-
schat), p. 18, para. 1). In reply, Nigeria’s primary contention is that it is
not bound by the Maroua Declaration. The Declaration, along with pre-
ceding negotiations at the time formed part of ongoing sessions of meet-

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ings on the maritime boundary, subject to further discussions at subse-
quent meetings.

162. For the Declarations to have become binding, the Military Admin-
istration Legislation of 1966 and 1967 required the publication of any
decree made by the Military Council, in the Federal Gazette. This was
not the case in this instance. Under the 1963 Constitution in force at the
time, General Gowon did not have the power to commit his Government
without the approval of the Supreme Military Council, which constituted
the executive authority and Government of Nigeria. Thus, Nigeria con-
cludes, the President of Cameroon is deemed to be aware of the con-
straints under which General Gowon was exercising his authority. Nigeria
cites the letter sent by General Gowon to President Ahidjo on 23 August
1974 (Reply of Nigeria, Vol. IV, Ann. 2).

“In paragraph three of the letter, General Gowon informed Presi-
dent Ahidjo:

“You will recall, Mr. President, that the important question of
demarcating the borders between our two countries was discussed
at length during our meeting in Garoua. I still believe that the
function of the joint commission of experts established to delin-
eate the international boundary between our two countries, was to
make recommendations on the basis of their technical examina-
tion of the situation, for consideration by our two Governments.
As a technical commission, their views and recommendations
must be subject to the agreement of the two Governments which
appointed them in the first place. You will also recall that I
explained in Garoua that the proposals of the experts based on the
documents they prepared on the 4th April, 1971, were not accept-
able to the Nigerian Government. It has always been my belief
that we can both, together re-examine the situation and reach an
appropriate and acceptable decision on the matter.’ ” (CR 2002/9
(Brownlie), pp. 37-38, para. 104.)

Nigeria asserts that in the above correspondence, General Gowon was
emphazising to President Ahidjo that:

“(i) the question of boundary demarcation between Nigeria and
Cameroon is an ‘Important question’;

(ii) the function of the commission of experts was to make recom-
mendations for the consideration of the two Governments;

(iii) the proposals of the experts based on the documents they
prepared on 4 April 1971 were not acceptable to the Nigerian
Government;

(iv) that both Governments must re-examine the situation and reach
an appropriate agreement on the matter; and

(v) that the arrangements which might be agreed between them were

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subject to the subsequent and separate approval of the ‘Nigerian
Government’.” (CR 2002/9, (Brownlie), p. 38, para. 105.)

163. Thus, in light of previous dealings with Nigeria, President Ahidjo
should have realized that General Gowon alone could not bind Nigeria
in what would amount to a disposition of its territory, inhabited by its
people. Executive acts were to be carried out by the Supreme Military
Council or be subject to its approval. From the foregoing it is clear that
the two Heads of State were left in no doubt as to the non-binding force
of the Maroua Declaration.

164, Cameroon makes its stance on the above by referring to
Article 46 of the Vienna Convention on the Law of Treaties, paragraph 1
of which reads:

“A State may not invoke the fact that its consent to be bound by
a treaty has been expressed in violation of a provision of its internal
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.”

And paragraph 2 which states: “A violation is manifest if it would be
objectively evident to any State conducting itself in the matter in accord-
ance with normal practice and in good faith.” The argument of the
Parties here turns to the distinction between Cameroon’s interpretation
and Nigeria’s interpretation of the above Article.

165. Cameroon argues that the consent to the Declaration as expressed
by General Gowon did not require the formal advice of anybody, includ-
ing the Supreme Military Council. However, Cameroon states that, even
if General Gowon were constitutionally restrained, his action of signing
the Declaration of Maroua on Nigeria’s behalf did not amount to a
“manifest” violation of Nigeria’s internal law regarding the competence
to conclude treaties.

166. This is where the decision of the Court can be faulted. In 1967,
the Executive Power of the Federal Government of Nigeria was vested in
the Supreme Military Council. At that time, Gowon had taken over as
Head of the Federal Military Government in Nigeria. In 1975, when the
Maroua Declaration was signed, there were three military bodies set up,
viz.: the National Council of States, involving the collective administra-
tion of the states as represented by the Governors; the Federal Executive
Council; and, most importantly, the Supreme Military Council, which
was then vested with the Executive Power of the country in accordance
with the Federal Constitution as amended.

167. The Supreme Military Council was the ultimate executive body
vested with the power to ratify any agreement made by the Head of State.
The Maroua Declaration was not ratified by this Council. Hence the

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Declaration had no binding force on Nigeria, contrary to the decision of
the Court.

168. Thus, by virtue of Article 46 of the Vienna Convention on the
Law of Treaties, internationally, the Maroua Declaration is not oppos-
able and therefore not enforceable against Nigeria.

169. As regards the matter of delimitation of the maritime boundary,
beyond point “G”, Nigeria argues that there had been no negotiations
between the Parties on this sector and that the first time it had notice of
Cameroon’s claim lines was when it received Cameroon’s Memorial.
Cameroon did not deny this fact.

170. Nigeria claims that, as far as the dispute over the maritime
boundary on the areas around point G, and indeed to the areas of over-
lapping licences, the requirement that the Parties must negotiate under
Articles 83 (1) and 74 (1) of the Convention on the Law of the Sea of
1982, has been satisfied; however, not beyond these areas.

171. Hence, as far as the area beyond point G, Nigeria maintains its
position that the requirements of Articles 83 (1) and 74 (1) of the
1982 United Nations Convention on the Law of the Sea have not been
fulfilled.

172. One of the preliminary objections made by Nigeria on jurisdic-
tion and admissibility was that the Court had no jurisdiction to entertain
the request of Cameroon for maritime delimitation beyond point “G”. In
my dissenting opinion to the Court’s Judgment at that stage, I expressed
the view that, since negotiation is a prerequisite under Articles 83 (1) and
74 (1) of the 1982 Convention on the Law of the Sea, the Court has no
jurisdiction to entertain Cameroon’s Application on this claim. However,
the Court has assumed jurisdiction. I have reservations, because of the
possibility of affecting the rights of Equatorial Guinea and Sao Tome
and Principe. Nevertheless, because the Court is now seised of the matter,
and regardless of the dispute between the Parties as to whether there has
been negotiations or not, I consider the Court’s decision to effect delimi-
tation in the area beyond point “G” to be just and valid, hence I voted in
favour of the Court’s decision.

STATE RESPONSIBILITY

173. Although I voted in favour of the Court’s decision rejecting the
claim of Cameroon on State responsibility against Nigeria, and rejecting
a similar application by way of a counter-claim by Nigeria against
Cameroon (paragraph 325 V (D) and (E)), I wish to express my reasons
for doing so in this part of my opinion.

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174. The first reason is that the claim of Cameroon is unprecedentedly
excessive and indeed unique. I do not know of any case (other than the
present case) which has taken over eight years, with so many claims
presented at the same time to the Court. I am aware of exclusive land
boundary claims by States; and I am also aware of exclusive maritime
delimitation claims by States. Cases of maritime boundary cum land
boundary claims are very few. However, I have not heard of an applica-
tion involving a land boundary claim, a maritime delimitation claim, and
a State responsibility claim, all presented at the same time. Little wonder
that the case took a marathon hearing time of five weeks.

175. The second reason is that this case involves neighbouring States.
Geography and history compel their eternal co-existence. The Court was
not created to consciously or unconsciously create eternal disharmony
between brother States. A claim of this nature can only engender bad
blood between the States, and the Court should not lend its support to
any decision that would create such eternal acrimony. The Court, as I
have said earlier, is duty bound to ensure that “[a]ll Members shall settle
their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered” (Art. 2,
para. 3, of the United Nations Charter; emphasis added). The para-
mount and fundamental objective of the Court, over and above all other
considerations, is to ensure that litigants or disputants are satisfied at the
end of the day that justice has been done, that the Court has been fair
and impartial, and that parties can still live together in peace and security.

176. I am persuaded by the words of wisdom expressed by counsel for
Nigeria when he observed:

“Counsel sought also to show that it was perfectly normal for
questions of State responsibility and territorial title to be joined. But
this is not so in practice, nor is it appropriate. As the Court will
know, there have been many cases in which territorial disputes have
affected populated areas which one side or the other has adminis-
tered and controlled — several such cases have indeed been consid-
ered by the Court. Yet Cameroon cited no case in which a territorial
dispute has been resolved in favour of one State, and in which the
losing State was then held internationally responsible for its acts of
civil administration or maintenance of public order in areas in
which, as a result of the decision on the territorial dispute, it was
found to have had no right . . . Any other approach would turn
every territorial dispute into a State responsibility case, sometimes of
enormous magnitude.” (CR 2002/20 (Watts), p. 26, paras. 9 and 10.)

177. Another reason for my decision touches on what may be termed

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ratione tempore. The case between Cameroon and Nigeria was “brought”
too late. If the Court were seised of such a complex and time-consuming
case, as the present one, in the 1970s, and particularly in 1976 when there
was less to do with few cases on its docket, then perhaps more time
would have been devoted to such an unnecessarily lengthy claim, which
ought to have been settled between the Parties themselves. However, at
this time, the docket of the Court is full and time has to be rationed. To
buttress this point, Cameroon has indicated that this is not the end. In its
further claim, Cameroon requests the Court to adjudge on compensation
thus:

“The Republic of Cameroon further has the honour to request the
Court to permit it to present an assessment of the amount of com-
pensation due to it as reparation for the damage it has suffered as a
result of the internationally wrongful acts attributable to the Federal
Republic of Nigeria, at a subsequent state of the proceedings.”
(Memorial of Cameroon, Vol. I, p. 671, para. 9.2.)

178. Perhaps in effect, the Court may not see an end to this case even
after Judgment. The Court, may still have to decide on the assessment of
the amount of compensation as reparation for the damage claimed.
Nigeria also requested in its submissions that:

“Cameroon bears responsibility to Nigeria in respect of each of
those claims, the amount of reparation due therefor, if not agreed
between the parties within six months of the date of judgment, to be
determined by the Court in a further judgment.” (Reply of Nigeria,
Vol. III, p. 766.)

Here again, were the Court to decide in favour of Nigeria, and were com-
pensation not be paid to Nigeria within six months, then Nigeria might
file another application for reparation against Cameroon, and who could
tell how long this would take.

179. In effect, any decision of the Court in favour of either Cameroon
or Nigeria, or both, would only prolong this case and continue to spread
a feeling of disaffection between the Parties. The aim of the Court must
be to discourage endless litigation. The Court, in its wisdom and consid-
erable experience on boundary matters, has made valuable observations
during the preliminary objection on jurisdiction and admissibility phase
of this case, that even when a boundary has been definitively delimited
and demarcated, misunderstandings are bound to ensue from time to
time. In most cases, these misunderstandings are mistakes as to location,
misunderstandings as to boundary lines and pillars, or uncertainties as to
their locations, which have nothing to do with any deliberate acts involv-
ing State responsibility.

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180. There is such an example in the present case: a location called
Mberogo/Mbelogo. Cameroon is claiming Mbelogo; Nigeria is also claim-
ing Mberogo. There are alleged incidents involving State responsibility in
this location as well. Cameroon claims two incidents in Mbelogo, one
involving a Nigerian census taker on 26 January 1994 and the other
involving two Nigerian Immigration Officers on 26 September. In
Nigeria’s counter-claim it also reports the incident involving the Nigerian
census taker, but this time in Mberogo. Now the question is, are there
two locations, one called Mberogo and the other Mbelogo? Or are they
one and the same place?

181. Examples like this can be multiplied, 1.e., where inhabitants or
officials of the Government have acted under a mistaken belief that a
location belongs to its State (either Cameroon or Nigeria).

182. The Court, even before entertaining the present case on its merits,
pronounced on this problem as follows:

“The occurrence of boundary incidents certainly has to be taken
into account in this context. However, not every boundary incident
implies a challenge to the boundary. Also, certain of the incidents
referred to by Cameroon took place in areas which are difficult to
reach and where the boundary demarcation may have been absent
or imprecise. And not every incursion or incident alleged by
Cameroon is necessarily attributable to persons for whose behaviour
Nigeria’s responsibility might be engaged. Even taken together
with the existing boundary disputes, the incidents and incursions
reported by Cameroon do not establish by themselves the existence
of a dispute concerning all of the boundary between Cameroon and
Nigeria.” (1 C.J. Reports 1998, p. 315, para. 90; emphasis added.)

183. As regards Cameroon’s application on State responsibility, it
appears to me that it is labouring under a pre-emptive but erroneous
notion that, once it can establish or assume subjectively that a legal title
exists in a frontier matter, it automatically involves State responsibility.
In other words, the claim of Cameroon on State responsibility is rather
anticipatory. Cameroon believes that its position with regard to the con-
ventional title is unassailable, and in anticipation of a judgment in its
favour, goes further to ask for claims based on a judicial benefit that has
not accrued to it.

184. Cameroon, reflecting on the pronouncement of the Court, had
somehow reformulated its position based on the Judgment of the Court
of 1998 on preliminary objections, which states:

“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

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portion of the boundary that they would necessarily constitute a dis-
pute concerning the whole of the boundary.

Further, the Court notes that, with regard to the whole of the
boundary, there is no explicit challenge from Nigeria. However, a
disagreement on a point of law or fact, a conflict of legal views or
interests, or the positive opposition of the claim of one party by the
other need not necessarily be stated expressis verbis. In the determi-
nation of the existence of a dispute, as in other matters, the position
or the attitude of a party can be established by inference, whatever
the professed view of that party. In this respect the Court does not
find persuasive the argument of Cameroon that the challenge by
Nigeria to the validity of the existing titles to Bakassi, Darak and
Tipsan, necessarily cails into question the validity as such of the
instruments on which the course of the entire boundary from the
tripoint in Lake Chad to the sea is based, and therefore proves the
existence of a dispute concerning the whole of the boundary.” (1. C.J.
Reports 1998, p. 315, paras. 88-89.)

185. Cameroon, in some part of its pleadings, positively responds to
its misconception of invoking State responsibility in a matter of this
nature. In its Reply, Cameroon referred to a part of the Judgment given
at the preliminary objection phase, and stated further that it was no
longer contesting these two points.

186. Nigeria has stated over and over again that a difference between
States as to the proper application of a principle, or even a rule of inter-
national law, does not by itself give rise to any international responsi-
bility for either of them.

187. Eventually, in its Reply, Cameroon acknowledged, accepted and
admitted this basic principle which should have compelled Cameroon to
withdraw its claim based on State responsibility. Presumably, it was then
too late for Cameroon to do so. Cameroon also acknowledged that
Nigeria had stated this point on at least five occasions. The following was
Cameroon’s admission on this point:

“Cameroon acknowledges, as stated by Nigeria on at least five
occasions, that in itself ‘a difference between States as to the proper
application of a principle or even a rule, of international law, does
not give rise to any international responsibility for either of them’...
It is therefore prepared to admit that the wording of paragraph (d)
of the submissions in its Memorial, reproduced above, may lead to
confusion on this point if taken out of context as the Respondent
does: it is not the mere fact that Nigeria ‘is disputing’ the boundary
which engages its responsibility, it is the methods it has used, and
continues to use, to conduct the dispute. In order to eliminate all
ambiguity, Cameroon has made this clear in the submissions in the
present Reply . . .” (Reply of Cameroon, Vol. I, p. 489, para. 11.13.)

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188. However, Cameroon has modified its position many times to cor-
rect some of its misgivings and misconceptions. For example, it started
by stating that Nigeria is liable for the various incidents, jointly and
severally. Cameroon had reneged from this standpoint and decided that
the whole of the incidents should be considered together. Furthermore,
it reformulated its submission as a result of all these points, stating in
its final submission that:

“in attempting to modify unilaterally and by force the courses of the
boundary defined above under (a) and (c), the Federal Republic of
Nigeria has violated and is violating the fundamental principle of
respect for frontiers inherited from colonization (uti possidetis juris )
and its legal commitments concerning land and maritime delimita-
tion” (Reply of Cameroon, Vol. I, p. 592, para. 13.1{/d)).

However, what Cameroon should have done was to withdraw this claim
entirely.

189. At this stage, it may be necessary for me to descend into the arena
of conflicting facts. It is a cardinal principle of legal procedure that who-
ever asserts must prove. A claim is not sustainable stricto sensus unless
and until it can be established and proved. Cameroon, alleging State
responsibility, must prove those incidents alleged against Nigeria. How-
ever, before going into that, the picture that the disputed areas, particu-
larly the Bakassi Peninsula and Lake Chad, presents to me, is that they
are inhabited by Nigerians who have been living there for a long time,
mostly before independence and some after independence. In my view,
this fact is indisputable. Subsequently, Cameroon, relying on conven-
tional title, has tried to claim those areas. The problem started when
Cameroon attempted to dislodge the Nigerians and replace them with
Cameroonians.

190. One may visualize this situation from what happened in 1972-
1973, when Cameroon started to change the names of places in the
Bakassi Peninsula. Cameroon does not deny this.

191. Where people are already settled in any given place, an incursion
comes as a surprise attack. It is the attacker who invariably has the upper
hand because the settlers are overwhelmed by such a surprise. Nigeria
supports this view with an overall figure of casualties resulting from these
incidents:

“{a) Attributed to Cameroon in the Nigerian documents: 30 killed
(of whom 27 were civilians) ; 117 wounded (of whom 106 were
civilians ) ; eight houses and four boats destroyed or damaged,
together with a substantial amount of other damage.

(b) Attributed to Nigeria in the Cameroon documents: three killed,
13 wounded (all military). Thus there were small numbers of
military casualties on both sides; fewer dead on each side in

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fact than in the incident of May 1981. But there were substan-
tial civilian casualties on the Nigerian side. And there is no evi-
dence whatever of Nigerian troops killing or wounding their
own people.” (CR 2002/20 (Crawford), p. 37, para. 10; empha-
sis added.)

192. Perhaps this overall figure demonstrates two points: on the one
hand, if the places where the incidents occurred were inhabited by Cam-
eroonians, then at least some Cameroonians (civilians) would have been
killed. In this report not a single Cameroonian (civilian) was killed. It
shows that the inhabitants of those places are not Cameroonians. On the
other hand, more Nigerian civilians were killed because they were the
inhabitants.

193, What was the reaction of Cameroon to this report and the
incidents? Cameroon’s response was to offer some words of apology.
Cameroon reacted to the matter of the dead civilians thus:

“In the part of his speech, in the eight minutes devoted to counter-
claims this week, Professor Tomuschat did not comment on those
figures. All he said was that ‘il peut y avoir eu des victimes civiles, ce
que le Cameroun regrette profondément’. Faced with a balance of
casualties such as that I have given, for counsel to say ‘il peut y avoir
eu des victimes civiles’ is not very helpful. To be told belatedly that
Cameroon ‘profoundly regrets’ does little to mitigate the damage
caused, and still being caused, by Cameroon. For it is not the case
that there ‘may have been’ victims: ‘il peut y avoir eu des victimes
civiles’. There were such victims. There continue to be civilian vic-
tims. If there had been none, Cameroon would have been the first to
tell you.” (Jbid., pp. 37-38, para. 11; emphasis added.)

In view of all this destruction of Nigerian lives and property, it is
incredible that Nigeria is still being accused of State responsibility. What
Cameroon was in effect saying is: I am sorry for killing your people
but you must still pay me for killing them.

194, Reverting to the issue of the burden of proof, after all the plead-
ings (oral and written), of Cameroon, it has neither established nor
proved a case of State responsibility against Nigeria. Most of the allega-
tions are mere allegations of acts not involving State responsibility against
Nigeria. The presence of civilians and even of soldiers in any of the loca-
tions where these disputes occurred, proved nothing. Cameroon’s allega-
tion of the very serious offence of State responsibility must be proved
beyond reasonable doubt. This proof is missing.

195. The evidence presented is very scanty, and, in some cases, incon-

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sistent, inaccurate and uncertain. Most of the allegations are not sup-
ported by any documentary evidence and are time-barred and conse-
quently acquiesced to by Cameroon, and many are only vaguely described.

196. Many of the reports concerning these allegations are contradic-
tory, unsubstantiated and lack probative value; some are misleading and
incorrectly translated; some are incomplete; and many are unprotested
and appears to be afterthoughts.

197. Many of the documents in support of the incidents are mere
internal memos; some of the incidents are undated and no time Is speci-
fied; many of the incidents have nothing to do with the State of Nigeria
as such, but are incidents involving civilians, without the knowledge and
consent of the Government of Nigeria. Therefore, these are acts not
involving State responsibility attributable to Nigeria.

198. In many of these incidents Cameroon did not protest to Nigeria.
In one of the reports of the incidents, it seems the report has been ima-
gined, because, for example, the incident at Akwayafe was alleged by
Cameroon to have taken place in April 1993 and was reported on
23 March 1993 in the message of the Governor of South-West. There is
another predated incident at Kofia. Here again the report precedes the
incident. Another clear example of the unreliability of evidence presented
by Cameroon related to the incident in Mberogo. Cameroon claims that
the incident occurred on 26 January 1994, yet it was reported in a mes-
sage of the Bab-Prefect of Force Awa dated 21 January 1994. This is
another example of a predated incident. This is curious, if not ridiculous.

199. In some of the reports it was clearly stated that the incidents
involved Nigerian citizens but not the Nigerian Government. Cameroon
even considers clashes between citizens and citizens as incidents: private
land disputes are considered incidents; squabbles of fishermen and
farmers are considered to be acts involving Nigeria’s State responsibility:
otherwise what would land disputes between Nigerians in Nubi Local
Government and the traditional Chief of Barha, or the case of the
Nigerian poachers, have to do with State responsibility? In addition,
some of the incidents relate purely to clashes between the Nigerian and
Cameroonian inhabitants over the location of the boundary. Some reports,
such as the one on the Lenelowa incident predates the incident as far
back as two years before the incident occurred. In some of these inci-
dents, there are cases of Cameroonians clashing with Cameroonians on
Nigerian territory, yet Cameroon reported them as incidents invoking
Nigerian State responsibility. To sum up, reading through the list of
incidents catalogued by Cameroon, one is inclined to believe that the
issue of State responsibility is being trivialized.

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200. Cameroon in fact admits carrying out acts involving State respon-
sibility against Nigeria. Examples are the incidents in Mberogo and
Tosso, which are shown in the Atlas maps presented by Nigeria.

201. In conclusion, the claim of Cameroon as regards State respon-
sibility against Nigeria is, in my view, part and parcel of its litigation
strategy to fortify its claim based on conventional title over the Bakassi
Peninsula and Lake Chad.

202. It is for the reasons enumerated above that I support the decision of
the Court that the claim of Cameroon be dismissed along with the counter-
claim of Nigeria. This decision is desirable in order to promote and
encourage peace, harmony and good neighbourliness between the Parties.

CONCLUSION

203. To conclude my dissenting opinion, ] am of the view that the
Court ought not to dismiss the claim of Nigeria based on effectivité.
There is no doubt that for a considerable length of time, there have been
Nigerians living in the area of the Bakassi Peninsula and in some parts of
Lake Chad. The Court accepts the fact that Nigeria has administrative
and social establishments in these areas. History lends credence to the
fact that the Kings and Chiefs of Old Calabar have been exercising ter-
ritorial rights over the Bakassi Peninsula since the seventeenth century.

204. Similarly the Court should not have rejected Nigeria’s claim
based on historical consolidation. Nigeria presents overwhelming
evidence in support of this claim. Jurisprudentially, there are a series of
the Court’s decisions based on historical consolidation. I have referred
to these already in this opinion.

205. In my view, nothing vitiates the evidential value of the Treaty of
10 September 1884 between Great Britain and the Kings and Chiefs of
Old Calabar. This Treaty, being an international instrument, makes it
clear that at no time was Great Britain conferred with the territorial sov-
ereignty over the Bakassi Peninsula. Great Britain acted in breach of its
obligations when it entered into the Agreement of 11 March 1913 with
Germany, which purportedly transferred Bakassi to Cameroon.

206. Furthermore, as regards the Anglo-German Agreement of
11 March 1913, the Court ought to have preliminarily rejected it as
invalid, because the Agreement is inconsistent with the concern of the
Great Powers not to transfer “native populations from one administra-
tion to another without their consent and even without having informed
them or consulted them” (Counter-Memorial of Nigeria, Vol. 1,
paras. 8.50-8.51). This Agreement is contrary to the General Act of the
Berlin Conference and in particular its Article 6. The European Powers
were enjoined “to watch out over the preservation of the native tribes and
not to take over or effect transfer of their territory”.

207. In addition, I am also of the view that the Anglo-German Agree-

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ment had lapsed as a result of World War I. It was for Great Britain to
revive the Agreement, which it did not do. Thus, the Agreement was
abrogated by virtue of Article 289, and Cameroon could not have suc-
ceeded to an agreement that was already spent.

208. The Anglo-German Agreement was not approved by the German
Parliament as regards the Bakassi Peninsula. Contrary to the Court’s
decision, this Agreement ought to remain invalid.

209. The claim of Cameroon to the Bakassi Peninsula based on the
Anglo-German Agreement is defective for the foregoing reasons and
ought not to have been relied upon by the Court.

210. However, because the Court relies on it substantially and regards
the instrument as conferring legal title on Cameroon, the Court is bound
to relate Nigeria’s effectivités with Cameroon’s legal title. Unfortunately,
the Court has been persuaded by the one-sided argument of Cameroon as
to the text and meaning of paragraph 63 of the Judgment in the Frontier
Dispute (Burkina Fasol Republic of Mali) case, because Cameroon based
its arguments and justification of having legal title solely on the sentence
“[wlhere the act corresponds exactly to law, where effective administra-
tion 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” (C.J. Reports
1986, pp. 586-587).

211. However, in Cameroon’s interpretation of this same paragraph 63,
it points to a situation which it considers similar to Nigeria’s position:
“Where the act does not correspond to the law, where the territory 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.” (/bid, p. 587.) However, what Cameroon omitted,
perhaps purposefully, to explain to the Court are the subsequent sen-
tences of the same paragraph 63, stating that:

“In the event that the effectivité does not co-exist with any legal
title, it must invariably be taken into consideration. Finally, there are
cases where the legal title is not capable of showing exactly the ter-
ritorial expanse to which it relates. The effectivités can then play an
essential role in showing how the title is interpreted in practice.”
(Ibid, p. 587; emphasis added.)

Unfortunately the Court itself fails to give serious consideration to this
vital part of the text of its previous Judgment.

212. Finally, perhaps, the decision of the Court would have been
otherwise had consideration been given to these three sentences, which
Cameroon failed to argue and which were not considered by the Court.

(Signed) Bola ATBOLA.

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