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Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equitorial Guinea intervening)
CASE SUMMARY
Case concerning the land and maritime boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equitorial Guinea intervening)
Background
On the 10th of October 2002, the International Court of Justice gave judgement on the long drawn Cameroon v. Nigeria case. The case was first brought before the court on the 29th of March 1994 by Cameroon.
Cameroon and Nigeria are States situated on the West Coast of Africa. Their land boundary extends from Lake Chad in the North to the Bakassi Peninsula in the south and their coastlines are adjacent. The case essentially involved five sectors; defining the boundary line in the lake Chad area, determining the line from Lake Chad to the Bakassi Peninsula, the question of the boundary and sovereignty over the peninsula, the question of delimitation between the states between the two states respective maritime areas and the issue of state responsibility.
While the case was fundamentally about boundary determination, a major undercurrent was access to potentially vast amounts of oil located in the Bakassi Peninsula and the adjoining waters. 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.[1] Cameroon is also a major oil producer currently ranked the fifth largest producer in sub-Saharan Africa. The country 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 nations could also affect petroleum licences already granted by Nigeria. The note below concentrates on the judgement of the Court on the issues of sovereignty over the Bakassi Peninsula and the delimitation of the maritime boundaries of the two countries.
On the Issue of Sovereignty over Bakassi Peninsula
The Contention of the Parties
The arguments of both parties was summarised by the court as follows:
Cameroon contends 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 argues 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 claims 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.
Judgement
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.
On the issue of Britain’s right to pass title, Nigeria had argued that “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. 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”. 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. 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.
The court also addressed the further claims to Bakassi relied on by Nigeria. Nigeria’s claims were on three distinct but interrelated bases of title:
1. 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;
2. Peaceful possession by Nigeria, acting as sovereign, and an absence of protest by Cameroon; and
3. Manifestations of sovereignty by Nigeria together with acquiescence by Cameroon in Nigerian sovereignty over the Bakassi Peninsula.”
In response, Cameroon argued that a legal treaty title cannot be displaced by what amounts to a number of alleged effectivites. It further denied the existence of historical consolidation as a separate basis of legal title and stated that Nigeria’s claims amounted to no more than “the establishment of title by adverse possession, which has traditionally been labelled as ‘acquisitive prescription’”
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.
With regard to the other two bases of title advanced by Nigeria, the court was of the view that where there was a conflict between title and effectivites, preference would be given to the former.
On the issue of the Maritime Boundary between Cameroon and Nigeria
Contention of the parties
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. Nigeria claimed that the court should refuse to carry out in whole or in part the delimitation requested by Cameroon because the delimitation affected the rights of third party states and secondly, because the requirement of prior negotiation under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) had not been satisfied.
Judgement
The court was of the opinion that although it could not rule on Cameroon's claim as it might affect third party states not party to the dispute, this does not preclude the court from having jurisdiction over a maritime delimitation between the parties. The court also 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.
In dealing with Cameroon's claim for maritime delimitation as well as Nigeria's submissions on the issue the court addressed the issue in two sectors:
[a] Sector of the maritime boundary up to point G
Regarding this sector, 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. Nigeria contended, however, that this was not a valid international treaty, as the Nigeria’s Supreme Military Council did not ratify it at the time.
The court refused to accept this argument 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.
[b] 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 line 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 which the court had to take into consideration in the delimitation.
The court was unable to accept Cameroon's contention. The court had occasion to re-state the principle accepted 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’. 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.
Conclusion
This decision in essence preserves Nigeria's maritime waters as the application of the equidistance principle favours Nigeria. 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 preserves agreements for joint development of natural resources between these countries and Nigeria. 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 so wish to do.
[1] EIA, Nigerian Country Analysis Brief, January 2002 at http://www.eia.doe.gov/emeu/cabs/nigeria.html
