Offshore delimitation of resource deposits situated across national boundaries: The International Court of Justice decision in Cameroon v. Nigeria lending clarity or compromise?

Adaeze Ifesi

Nigeria and Cameroon shared an undefined maritime boundary in the areas surrounding the Bakassi peninsula and adjoining waters within the Gulf of Guinea. This boundary has been subject of a dispute, which has culminated in a case before the International Court of Justice [ICJ]. The underlying cause of conflict was the apparent abundance of natural resources in the region. The ICJ delivered its judgement on this case on the 10^th of October 2002. This article examines this decision in respect of the two contentious issues, that is, the maritime boundary delimitation and sovereignty over bakassi peninsula. The article further analyses this decision in line with other recent decisions on maritime delimitation such as the Eritrea / Yemen Phase II Award and the Qatar v. Bahrain ICJ decision. The article contends that with the adoption of the equidistance line as the predominant method of maritime delimitation and the lack of consideration given to resources, these decisions undoubtedly result in consequences unlikely to wholly favour any state party. The satisfactory alternative therefore may lie in agreements such as joint development, where transboundary resources are involved.

Introduction

On the 10^th of October 2002, the International Court of Justice [ICJ][1] delivered judgement on the lingering Cameroon v. Nigeria dispute.[2]Cameroon commenced this action before the ICJ in 1994 challenging the maritime boundaries in the areas surrounding the bakassi peninsula and its adjoining waters within the Gulf of Guinea[3]. Subsequently Cameroon enlarged the scope of its application to include delimitation of the largely non-contentious land territory and lake Chad to the northern sector of the boundary. Central to the dispute was the far-reaching implications for Nigerian and Cameroonian oil exploration and production and the ownership of the bakassi peninsula a 1,000 square kilometres [600-square-mile] area believed to contain significant reserves of oil[4]. Nigeria is one of the world’s largest oil exporters with an economy heavily dependent on oil, which accounts for up to 80% of government revenues.[5] Cameroon is also a significant oil producer currently ranked the fifth largest producer in sub-Saharan Africa.[6] Cameroon is however facing declining crude oil production. The confirmation of the right of one of these countries to sovereignty over the Bakassi Peninsula would enable it to permit the necessary exploration for oil in the area. Further, the delimitation of the maritime boundary of the two states could also affect petroleum licences already granted by Nigeria.

Historically, the bakassi peninsula vicinity is home to the Efiks and Ibibios who have for centuries fished the Cross River Estuary and the adjoining coastal waters of the Atlantic Ocean with origins from the pre-colonial ‘Kingdom of Calabar’ which embraced the peninsula.[7] The boundary between Nigeria and Cameroon is like most boundaries in Africa, the direct result of 19^th & 20^th century colonial arrangements.[8] In the post-colonial era, the boundary delimitation between these coastline states has been subject of negotiations and agreements. In 1970 Nigeria and Cameroon decided to delimit and demarcate boundaries and as a result reached an agreement in the Yaounde II declaration of 1971. The 1971 declaration delimited only the estuarine waters and islands of Cross River and associated territorial sea.[9]

Prompted by further problems such as clashes involving fishermen along the border and the discovery of oil in the area,[10] the state parties in 1975 signed the Maroua agreement, which extended the line drawn seaward from point 12 to point G.[11] The impasse in this region began with the Nigerian repudiation of the Maroua declaration in 1976 based on the question of non-ratification as required by Nigerian legal procedure.[12] This impasse continued until 1987, when Nigeria created the National Boundary Commission [NBC], with the intention of solving boundary disputes. The NBC began a program of Confidence – Building missions and in 1991 held a meeting with Cameroon. This opened up a new era of dialogue after a 17-year period and led to inauguration of a Nigeria-Cameroon Joint Committee of Experts on Boundary Matters and an agreement to reactivate the Nigeria-Cameroon Joint Commission.[13]

However the pace of the trans-border cooperation between Nigeria and Cameroon was not maintained and in 1994 after clashes within the Bakassi Peninsula area, Cameroon instituted an action before the ICJ to determine the maritime boundary beyond the 1975 delimitation point [which in itself is subject of contention].[14] The delimitation will affect the entire length encompassing the disputed Bakassi Peninsula up to the Northern border, which is the tri-point in Lake Chad to the sea. This is also to take cognisance of prior claims of Exclusive Economic Zone and Continental shelf of both countries.[15] Nigeria and Cameroon had both ratified the United Nations Convention on the Law of the Sea [UNCLOS] 1982.[16]

It is against this background that this article seeks to review the judgement of the ICJ relating to two key issues:

1. Sovereignty over the Bakassi Peninsula; and
2. Delimitation of maritime boundary between Cameroon and Nigeria.

The aim is to contrast the decision in respect of these issues, with emerging principles of international law developed in this area of jurisprudence, taking into consideration the two earlier cases on maritime delimitation decided under UNCLOS 1982: the 1999 Eritrea/Yemen arbitration [Phase II][17] and the 2001 Qatar v. Bahrain case[18]. The article would focus additionally on the consideration given by the courts [& tribunals] to resources as an underlying factor inducing such requests for delimitation.

Summary of the Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equitorial Guinea intervening)

1. On the Issue of Sovereignty over the Bakassi peninsula:[19]

The court primarily dealt with the issue of sovereignty over the bakassi peninsula before addressing the issue of maritime boundary delimitation. The arguments of both parties, on this issue, are summarised as follows:

Cameroon contended that the Anglo-German Agreement of 11 March 1913 fixed the course of the boundary between the Parties in the area of the Bakassi peninsula, placing the latter on the German side of the boundary. Hence, when Cameroon and Nigeria acceded to independence, this boundary became that between the two countries, successor States to the colonial powers and bound by the principle of uti possidetis. For its part, Nigeria argued generally that title lay in 1913 with the Kings and Chiefs of Old Calabar, and was retained by them until the territory passed to Nigeria upon independence. Great Britain was therefore unable to pass title to Bakassi because it had no title to pass (nemo dat quod non habet); as a result, the relevant provisions of the Anglo-German Agreement of 11 March 1913 must be regarded as ineffective.

Nigeria further claimed that that Agreement is defective on the grounds that it is contrary to the preamble to the General Act of the Conference of Berlin of 26 February 1885, that it was not approved by the German Parliament and that it was abrogated as a result of Article 289 of the Treaty of Versailles of 28 June 1919.[20] Before dealing with the issue of Britain’s right to pass title to Bakassi through the Anglo-German Agreement of March 1913, the Court addressed the arguments of Nigeria concerning the defectiveness of the Agreement. The Court took the view that the arguments were not valid and held that the agreement was indeed legitimate.[21]

On the issue of Britain’s right to pass title, Nigeria had contended that the title to sovereignty on which it relies was originally vested in the Kings and Chiefs of Old Calabar. It further argued that the City States of the pre-colonial Calabar region constituted an “acephalous federation” consisting of “independent entities with international legal personality”. And that under the Treaty of Protection signed on 10 September1884 between Great Britain and the Kings and Chiefs of Old Calabar, the latter retained their separate international status and were entitled to enter into agreements with other international bodies subject to the approval of Great Britain.[22] Nigeria further contended that the Treaty only conferred certain limited rights on Great Britain and that in no way did it transfer sovereignty over the territories of the Kings and Chiefs of Old Calabar to Great Britain and since it did not have title over the property, it could not cede them to a third party.

Cameroon on the other hand argued that the September 1884 Agreement created a colonial protectorate and, “in the practice of the period, there was little fundamental difference at international level, in terms of territorial acquisition, between colonies and colonial protectorates”.[23] The key element of the colonial protectorate was the assumption of external sovereignty by the protecting State allowing it to cede part of the protected territory by international treaty, without any intervention by the population or entity in question. Cameroon further argued that, even if Great Britain did not have the legal capacity to transfer sovereignty over the Bakassi Peninsula under the Agreement of March 1913, Nigeria was estopped from claiming this as it had continuously acted in a manner that accepted the validity of the agreement.

The court on its part held that the international legal status of a Treaty of Protection could not be deduced merely from its title alone. And that while there were some treaties of protection entered into with entities, which retained their sovereignty under international law, the nature of the treaties of protection entered into in sub-Saharan Africa was not of this nature.[24] These treaties effectively ceded sovereignty. In the light of this, under the law at that time, Great Britain was in a position in 1913 to determine its boundaries with Germany in respect of Nigeria, including in the southern section.[25]

The court also addressed the further claims to Bakassi relied on by Nigeria.[26] The court found that the invocation of historical consolidation could not vest title to Bakassi in Nigeria as its occupation of the peninsula is adverse to Cameroon’s prior treaty title and the possession has only been for a limited period.[27]

Perhaps the most interesting aspect of this section of the judgement is the controversial approach adopted by the court. The court had unnecessarily delved into questions of moral difficulties indefensible by the law. Bakassi Peninsula was evidently not terra nullius when Great Britain entered into a Treaty of Protection with the Kings and Chiefs of the Old Calabar kingdom in 1884. While this may not preclude Great Britain from acquiring a derivative root of title[28], it prevents Great Britain from obtaining an original root of title. Further, to determine the question of derivative root of title, the crucial factor remains the agreement itself in line with the fundamental rule of ‘pacta sunt servanda’ i.e. the sanctity of treaties.[29] This cannot be circumvented by an attempt to distinguish ‘treaties of protection’ as a special category of treaties. The title of the treaty is sufficient indication of the subject of the treaty, ‘protection’ and not ‘colonial title’.[30] The court acknowledged that the earlier ICJ decision, in the Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, recognised such treaties signed between Great Britain and the Sheikhdoms in Bahrain and Qatar, but sought to distinguish the present case.[31] The court’s attempt to distinguish the present case from the case of Qatar v. Bahrain, with reference to entities with previously existing sovereignty under international law, presents at best, a subjective test and one likely to plunge the courts into contradictory rulings in future.[32] The court should have examined the provisions of the treaty in question to establish its intention and meaning.[33] Judge Al-Khasawneh in his separate opinion, lends support to the legal validity of the 1884 treaty of protection, but queries the implication of subsequent behaviour of the kings and Chiefs of Old Calabar in failing to protest the cession of territory to Germany in 1913. Nonetheless, such omission may be insufficient to rebut the strong presumption against incidental loss of sovereignty.

Unfortunately the question of sovereignty over Bakassi Peninsula is intertwined with the issue of maritime delimitation, and where it could be shown that Nigeria and Cameroon as independent states had made further maritime boundary delimitation agreements valid in international law, this would inevitably place bakassi peninsula on either side of the dividing line. The article will now turn to the issue of maritime delimitation

2. On the issue of Maritime delimitation of EEZ and Continental shelf

The questions before the court could be summarised as follows:

Cameroon in its application of 29 March 1994 asked the court to determine the course of the maritime boundary between the two states beyond the line fixed in 1975 [point G]. Nigeria for its part drew no distinction between point G and the area beyond maintaining that where maritime delimitation was to take place, it would be done de novo

The court stated at the outset of its judgement on this issue that in line with requirements of Article 74 and 83 UNCLOS such delimitation must be effected in such a way as to ‘achieve an equitable solution’.[34] This equitable solution the court contended could be achieved by first determining the median or equidistance line and then considering whether there are any other relevant factors to be taken in account which may result in a deviation from such a line. The court dealt with Cameroon's claim for maritime delimitation as well as Nigeria's submissions on the issue, in two sectors:

I. Sector of the maritime boundary up to point G

Cameroon claimed delimitation of the first sector was based on three international instruments: the Anglo-Geman Agreement of 11 March 1913, the Yaounde II declaration 1971 and the Maroua declaration 1975. Cameroon asked the court to confirm the delimitation fixed by the Maroua Declaration of 1 June 1975 between the parties, which delimited the sector from the mouth of the Akwayafe River to point G.[35] Nigeria, on the contrary, stressed that the Yaounde II declaration simply represented the record of meeting which formed part of an ongoing programme of meetings relating to maritime boundary and that the matter was subject to further discussion at subsequent meetings. Nigeria also denied the legal validity of the Maroua Declaration, highlighting that the supreme military council did not ratify it.

The court upheld the three instruments as valid in International Law. It refused to accept the Nigerian argument in relation to the Maroua Declaration[36], finding that while in international practice a two-step procedure consisting of signature and ratification is frequently provided for in provisions regarding entry into force of a treaty, there are also cases where a treaty enters into force immediately upon signature. In the court's view, the Declaration fell into the latter category. The court recalled the provisions of Article 46 [1] of the Vienna Convention on the Law of Treaties, which provided that ‘[a] 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 it consent’.

II. Sector of the maritime boundary beyond point G

Cameroon argued that the law of delimitation of boundaries is dominated by a fundamental principle that any delimitation must lead to an equitable solution and as the adoption of the equidistance rule would in its opinion lead to inequity, it proposed its own delimitation line based on a variety of considerations. Nigeria however contended that the delimitation should be based on the principle of equidistance line, which could then be adjusted to take into account other relevant circumstances. It further argued that the line drawn by Cameroon, would affect oil licences already granted by Nigeria, a fact that the court had to take into consideration in the delimitation.

The court was unable to accept Cameroon's argument. The court had occasion to re-state the principle asserted in the North Sea Continental Shelf cases, ‘that equity does not imply equality’ and in a delimitation exercise ‘ there can never be any question of completely refashioning nature’.[37] The court found that there were no circumstances existing that would make it necessary to adjust a single delimitation line based on the principle of equidistance. In reaching this conclusion, the court was also of the opinion that oil practice is not a factor to be taken into account in the maritime delimitation in the present case.

Two issues deriving from this aspect of the decision, namely - the adoption of the equidistance technique[38] as equitable delimitation; and the question of resources as a factor considered in adjusting the equidistance line; deserve further scrutiny. However, before these issues are examined, it is important to briefly examine the two earlier maritime delimitation cases decided under UNCLOS

This case was about a dispute between Eritrea and Yemen over sovereignty of the Red Sea area between them.[39] The Phase II Award referred to the actual maritime delimitation, which took place after the tribunal had already allocated four sets of contested mid-sea islands.[40] The tribunal based its delimitation on a premise that a median line fits the requirements of Article 74 and 83 UNCLOS. The award recorded that ‘…the tribunal takes as its starting point, as its fundamental point of departure, that, as between opposite coasts, a median line obtains.’[41] The Award in Chapter three directed its attention to petroleum agreements and the median line. The tribunal recognized that the award in Phase I noted in the course of making its holdings on sovereignty over the disputed islands, that, the petroleum contracts do "lend a measure of support to a median line between the opposite coasts of Eritrea and Yemen, drawn without regard to the islands, dividing the respective jurisdiction of the Parties"[42], but stressed that this is not the same as saying that the maritime boundary now to be drawn should be drawn throughout its length entirely without regard to the islands whose sovereignty has been determined.

Therefore in respect of petroleum arrangements and a maritime boundary between the Parties in the Red Sea, the Tribunal concurred with the conclusion of the International Court of Justice [ICJ] in its Judgment in the North Sea Continental Shelf cases,[43] that delimitation of States' areas of continental shelf may lead to "an overlapping of the areas appertaining to them. The Court considers that such a situation must be accepted as a given fact and resolved either by an agreed, or failing that by an equal division of the overlapping areas, or by agreements for joint exploitation, the latter solution appearing particularly appropriate when it is a question of preserving the unity of a deposit." [44] The tribunal noted that this is of particular relevance to this area as Yemen and Eritrea face each other across a relatively narrow compass and benefit from a culture of free movement of fishermen, a wider trade, a common rule and a common religion[45] This in essence suggests that where Eritrea and Yemen discover significant oil reserves straddling a boundary, a joint user approach is advised.[46]

This case was instituted in 1991 by Qatar seeking sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimitation of the maritime areas of the two States. The court drew a single maritime boundary between the two states. The court in this case stated that ‘for the delimitation of the maritime zone beyond the 12 mile zone it [would] first provisionally draw a line and then consider whether there [were] circumstances which must lead to the adjustment of that line’[47] The ICJ in that case was of the view that the concept of a single maritime boundary does not stem from multilateral treaty law but from state practice and that it finds its explanation in the wish of States to establish one uninterrupted boundary line delimiting the various -- partially coincident -- zones of maritime jurisdiction appertaining to them.[48] The Court then turned to the question of whether there are special circumstances which make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an equitable result in relation to this part of the single maritime boundary to be fixed. The court considered several factors[49] but of particular relevance was the claim by Bahrain that its historical dominance over pearling grounds in the Gulf of Arabia to the north of the Qatar peninsula, be regarded as a special circumstance. The court rejected this claim based on the facts[50], thereby not foreclosing this as a potential circumstance. The court however observed that, from the evidence submitted to it, it is clear that pearl diving in the Gulf area traditionally was considered as a right, which was common to the coastal population.[51]

From the preceding case study, the two issues mentioned earlier, emerge as principles requiring further examination:

Article 74 and 83 of the 1982 UNCLOS[52] in respect of the continental shelf and exclusive economic zone areas appears to reflect the fundamental point of the earlier maritime delimitation cases such as the North Sea case[53] and the Tunisia/ Libya case[54], the basic notion that delimitation by agreement, in accordance with equitable principles is desirable.[55] Courts and Tribunals while delimiting maritime boundaries under the 1982 UNCLOS, in the 1999 Eritrea/Yemen arbitration [Phase II][56] and the 2001 Qatar v. Bahrain case[57], have found it necessary to adopt the appropriate method of delimitation as to ‘… first draw an equidistance line and then consider whether there are circumstances which must lead to an adjustment of that line.’ Appearing to lend more credence to Article 6 of the Geneva Convention of the continental shelf which provides ‘Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.’
The Eritrea/Yemen Award noted that the tribunal had taken as a its starting point and as its fundamental point of departure that, as between opposite coasts a median line obtains.[58] Article 74 and 83 UNCLOS, stresses the importance of agreement, though the courts in the present [Cameroon v. Nigeria] case, have interpreted this to mean that these articles require negotiations between disputing countries to take place, and not for such negotiations to be successful. The court found that negotiations between the governments of Nigeria and Cameroon concerning the entire maritime delimitation were held as far back as the 1970s but these negotiations did not lead to agreement. If the entire import of Article 74 and 83 is to be achieved more emphasis and interpretation will have to be given to section 3 of both articles which states ‘Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation’. This provisional arrangement of a practical nature could refer to joint development of natural resources when they exist in such areas. While a joint development zone may be created to be permanent in nature, there is evidence to indicate that delimitation or partitioning may take place during joint development operations and the underlying cooperation. One of such examples is the Saudi Arabia/ Kuwait Neutral Zone partitioning.[59] Such delimitation, where it eventually occurs is often more amicable, acceptable and beneficial. Although the courts have made it abundantly clear that there is no legal obligation to agree, it is desirable to develop a compulsory obligation to develop a transboundary resource jointly. This is especially important, where it is emerging that circumstances leading to the adjustments of such a median/ equidistant delimiting line remains unclear and subjective. It is doubtful natural resources would qualify as one of such circumstances.

2. Resources as a Factor

The geography configuration of the maritime areas that the court is called upon to delimit is given. The court therefore does not view this as an element open to modification as equity in this sense may not necessarily imply equality but there are notable exceptions, which include the concavity of a coastline, presence of islands and substantial differences in coastlines, although none of these exceptions were found applicable in this case.[60] Central to this case however was a contention raised by Nigeria stating that oil practice {concessions and wells} was a decisive factor in the establishment of maritime delimitation. This would obviously recognise the major subject of natural resources fundamental the dispute in this case. The courts over the years have often come across this thorny subject in maritime boundary delimitation cases, frequently as the driving factor underlying the dispute. For instance in the Tunisia/ Libya case the court rejected the argument that the resources of the shelf rather than the shelf itself be equitably divided.[61] Opinion on this issue remained similar in the case of the Guinea and Guinea Bissau Arbitration[62], where the tribunal was of the view that such economic conditions faced by disputants should encourage them to cooperate in order to stimulate development but believed it lacked authority to compensate for economic inequalities through modifications of an otherwise appropriate delimitation plan. This seemed to differ from the trend in an earlier decision of the conciliation commission in the Jan Mayen dispute[63], where the commission recommended a joint user approach rather than partitioning, because of the overlapping resource zone claims between Iceland and Norwegian controlled Island of Jan Mayen.[64] Other maritime boundary decisions appear to have consistently followed the latter cases in rejecting reference to resource or economic circumstances.[65] This is also the situation in the present case under analysis.[66] Although this creates a position where maritime delimitation is explicitly based on division of the continental shelf and not its resources and lays foundation for clear and concise rules of delimitation, it is essential, focus should be given to resources, not exclusively as a circumstance for adjusting the line but perhaps as suggested by the Jan Mayen commission, where such resources exist, as reason for joint development. Given that a major focus, in most maritime boundary delimitation cases is the existence [suspected or real] of natural resources, recommendations for joint development, [during and subsequent to the dispute] would add significant practical value to these decisions. It is important that International cooperation in the development of shared natural resources is encouraged.[67]

Conclusion

This ICJ decision, in essence preserves Nigeria's offshore fields as the application of the equidistance delimiting line favours Nigeria.[68] The court's decision not to delimit in a manner affecting rights of third party countries such as Equatorial Guinea and San Tome and Principe also preserves large oil fields now subject of agreements for joint development of natural resources between these countries and Nigeria.[69] However Cameroon has successfully claimed and won title and possession of the bakassi peninsula, an oil rich area largely inhabited by Nigerians of the Old Calabar descent. The court decision successfully preserves Cameroon's waters with the potential for natural resource development if Cameroon should wish to do so. Recently, in the aftermath of the decision the Nigerian and Cameroonian presidents have established a commission to resolve their differences over the disputed Bakassi peninsula.[70]
The commission chaired by the UN Secretary-General Kofi Annan's Special Envoy, Ahmedou Ould-Adballah, will consider all the implications of the ICJ decision, including the need to protect the rights of the affected populations in both countries. It would be entrusted with demarcating the land boundary between the two countries and making recommendations on additional confidence-building measures.
A vital lesson from this case appears to be that coastal states should endeavour to negotiate to reach an agreement, as the consequences of a judgement are unlikely to wholly favour any one party. In such cases where such maritime boundary disputes involve transboundary petroleum resources joint development may be the more attractive prospect in the long term.