Department Of Political Science
University Of Nigeria,
The study attempts a critical analysis of the ICJ Ruling over the legal title of Bakassi Peninsula. We based our analysis under the perspective prism of conflict management theories. We evaluated the emergence of European imperialism and how this embedded artificial boundaries, which regenerate substantial and unmitigated boundary disputes among African states and fueled the imbroglio between Nigeria and Cameroun over legal title of Bakassi Peninsula. Moreover, we examined the substance of the ICJ Ruling and noted, among others, that Nigeria’s defence was very flimsy, apologetic and self-indicting. Meanwhile, the verdict of the World Court, which favoured Cameroun, was predicated on colonial treaties and post-colonial agreements between the two countries. However, we concluded by stating that permanent solution to the Bakassi debacle lies not really in the ICJ verdict per se, but in sustained and consolidated constructive engagements between the two countries.
It is indeed a truism to state that most states in Africa have fluid and indefinite boundaries. As basically colonial creations, these states have and maintained artificial demarcations (boundaries) which continually regenerate friction, tension and conflict situations among the states.
This is particularly the situation between Nigeria and her neighbours, especially between Nigeria and Cameroun. The dispute over the Bakassi Peninsula had arisen partly from the fact that the Cameroun-Nigeria border has never been completely demarcated; and partly from the fact that the governments of the two countries have been involved in internal conflicts including secession. The cases of Biafra in Nigeria and Ambazonia (Southern Cameroons) in Cameroun are glaring examples. The experiences and aftermath of the war situations impelled the need to consolidate national unity in both countries; and equally stimulated the desire in both countries to strengthen national security around national boundaries.
Moreover, the border dispute between Nigeria and Cameroun is on two fronts -land frontiers and the sea. The land boundaries are the ones, which have become popularized overtime due to several skirmishes occurring in these land areas. The disputes over the territorial sea and continental shelf are also equally very important especially withthe discovery of large deposits of oil and gas along the disputed territories. Given the high stake placed on the Bakassi by the two countries, the area witnessed increased and intensifying military showdown as the two countries embarked on heavy and consolidated military build-up in the area.
Prior to the International Court of Justice Ruling, it was not uncommon for screaming headlines such as: “War Looms in Bakkasi”, “Why Nigeria may go to War in Bakassi”, “Showdown over Bakassi” etc., to appear in some Nigerian and Cameroonian and other international Newspapers and Magazines. The situation degenerated to almost a point of anomie as Cameroonian gendarmes were on the prowl, backed by French forces’ attacked many villages in the area and annexed a few communities. Moreover, the Cameroonian military forces re-named conquered communities and in their belligerent posture dared the Nigerian military in a most defiant manner. The border dispute was internationalized as the border dispute escalated into several sporadic fights with casualties at the border town between Cameroun and Nigeria. Until recently, the region around the Bakassi Peninsula could only be described as a War Zone; on account of the military hardware and personnel stationed by both countries in the Peninsula, especially with the presence of the French military.
Nevertheless, the situation continued to escalate and all efforts made by the regional and sub-regional organizations to resolve the dispute peacefully failed. In the face of escalating casualties and threat of imminent war between the countries, Cameroun decided to take the border dispute to the International Court of Justice (ICJ) for its adjudication. Cameroun’s application was deposited on 29 March 1994, amidst accusations from Nigeria that Cameroun was not committed to bilateral negotiations to resolve the matter “locally”.
By October 10, 2002, the judgement of the ICJ at The Hague, in the case concerning the land and maritime boundary between Nigeria and Cameroun, awarded sovereignty over the oil-rich Bakassi Peninsula to Cameroun. In this study therefore, we shall attempt a critical evaluation of the ICJ ruling. We shall examine the factors that inform the ruling, the validity of the factors and the implications of the ruling for peace and stability in the Bakassi Peninsula.
Conflicting is inevitable and persisting in all human interactions and interrelationships. Of course, conflict has two faces, that which negatively affects society through violent acts between people, and that, which positively contributes to the development of human relationships and social interaction. International conflicts and conflicts within divergent cultures necessitate flexibility in management approaches and understanding of context and procedure in order to choose an appropriate mode of dispute resolution. As succinctly noted by MacFarlane, (1999):
Modern conflict theorists have moved away from the study of rules and systems and toward the study of disputes themselves. This challenges students of dispute resolution to consider the relationship of rules to conflict management and dispute resolution, both as a matter of theory and in practice.
As a corollary of the above, international conflict management is a dynamic, interdisciplinary field, consistently evolving as a response to problems in international relations. Conflict management can be functionally understood by what it seeks to accomplish:
- Prevent the eruption of destructive conflict;
- Facilitate a move from violent to spoken conflict; and
- Enable a transformation from conflict to lasting peace by addressing root causes and effects of conflict.
Meanwhile, the aim of the theoretical analysis of conflict is to develop an understanding of the variables, processes, strategies and techniques that interact to form the basis for conflict management. However, rather than provide a package of tools and strategies that have to be stretched in order to apply to a variety of conflict situations, our pre-occupation here is to identify the challenges that conflict management faces in practice and ways to deal with them. Conflicts persist in Africa because the root causes of these have not been addressed. In their practical solutions to conflicts, Amoo and Odendaal (1997) identified accountable, democratic governance as key to managing conflict constructively and channeling individual and group expressions of identity in positive ways.
The modern conflict management theory as applied in the near-resolution be the Nigeria-Cameroun border crisis is worth re-assessing. The different steps toward the resolution of the conflict in practice is very similar to the modern tool kit in the management theory for the resolution of conflict; that is, from the conflict resolution stage to the state-building stage. The setting up of the United Nations mixed Nigeria- Cameroun boundary crisis is an added sophistication to the whole problem of crisis management in the Bakassi.
Furthermore, both parties have continued to espouse peace and dialogue in the quest for finding a lasting solution to the problem of peace along their common border even after adjudication of the case by the ICJ, which perhaps could have deepened the crisis. The above vividly underscores the need for political solutions to the problem over Bakassi. The theory of conflict management identified five devices and strategies of conflict management. These include:
- Conflict prevention
- Peace keeping
- Post-conflict peace building
- State building
Meanwhile the need for constructive engagement in conflict in order to bring about conflict prevention is undermined by global injustices and also in relation to many other forms of oppressive power relationships. Hence, no matter the conflict management strategies, peace and harmonious interrelations between and among states can only be guaranteed in atmosphere of constructive engagement in conflict resolution derived from justice, fairness and truth.
In the adjudication of the Nigeria-Cameroun boundary disputes by the ICJ, there are several facts indicating that there could have been complicity on the part of the learned judges of the ICJ especially, because of the economic interest at stake within the BakassiPeninsula and the involvement of imperialist interests therein. Thus, the study shall seek to verify the extent of imperialist involvement in the Bakassi dispute and how these impacts on the ICJ Ruling on-the-ground translation of the boundary line (demarcation) were embarked upon in late 1937. The project estimated to last six years, would involve:
- A framework of astro-radio points along the boundary at intervals of
approximately thirty miles.
- Preparation of topographical maps enhancing a strip 5-6-5 kilometres wide in
either side of the boundary on a scale of 1:125,000 increased to 1: 62,500 in
special cases where more details were required.
- Demarcation of actual boundary line by pillars. The line was to follow natural
features as far as possible, and monuments to be placed where the line meets or
departs from them (on straight lines, monuments were to be placed at angle only).,
- A line of instrumental levels to be run in the vicinity of the boundary and to be tied
to every astro-radio station.
- Printing of map on a final scale of 1:100,000 (for details on the above, see Annual
Report of Survey Department, 1937).
In addition to the above, the boundary commission started work in November 1937 with a plan for the British party under the leadership of J.G.C. Allen, to carry out b, d, e, above and half of the pillar installation in c while the French party would undertake the rest. By the end of that year, about two hundred kilometres of the 1600 kilometres boundary line had been mapped in details from survey data obtained.
By 11th February 1961, Northern Cameroun decided in a plebiscite to join the Northern Region of Independent Nigeria while Southern Cameroun was united with French Cameroun, Therefore, the line separating Southern Cameroun as part of the Eastern region and Northern Cameroun as part of Northern region became an international boundary.
We have to highlight here that boundary demarcation in Africa, especially in post-colonial period was not regarded as an urgent activity until some economic activities are going on near the boundary or a military incursion is reputed. This was particularly the case in the Bakassi Peninsula where, first, during the colonial days, the area was regarded as a “worthless zone of contention… a strip of dismal swamp peopled by a few miserable folks” (The News Magazine, 21/03/94, p.14), Not surprisingly, the British quite readily ceded it to the Germans, citing administrative convenience (Ibid). In the same vein, the successive post-colonial political leadership was largely indifferent on whether the Peninsula fell under Nigerian or Cameroonian sovereignty. Later however, valuable natural resources were discovered in the territory. Thenceforth, the struggle over the territory intensified, manifesting from time to time in violent clashes between Nigeria and Cameroun. The ICJ Ruling in 2002 appears to have doused these clashes and opens a new leaf of dialogue between the belligerent countries. We shall now turn our attention to the substance of ICJ Ruling over Bakassi Peninsula.
THE JUDGEMENT OF ICJ ON THE LEGAL TITLE OF BAKASSI PENINSULA
In the determination of the land and maritime boundary between Cameroun and Nigeria, (Cameroun v. Nigeria: Equatorial Guinea intervening), the court determined the boundary between Nigeria and Cameroun from Lake Chad to the sea. The court requested each party to withdraw all administration and military or police forces present on territories falling under the sovereignty of the other party.
In its judgement, which is final, without appeal and binding for the parties, the court determines as follows, the course of the boundary, from north to south, between Cameroun and Nigeria:
- In the Lake Chad area, the court decides that the boundary is delimited by the
Thomson-Marchand Declaration of 1929-1930, as incorporated in the Henderson
Fleurian Exchange of Notes of 1931 (between Great Britain and France); if finds
that the boundary starts in the lake from the Cameroun – Nigeria – Chad tripoint
and follows a straight line to the mouth of the River Ebeji as it was in 1931 (whose
co-ordinates it also defines) and thence runs in a straight line to the point where the
river today divides into two branches (see ICJ Press Communique 98/23 bis,
“Preliminary Objections Summary of the Judgement of 11 June 1998”, p. 4).
- Between Lake Chad and the Bakassi Peninsula, the court confirms that the
boundary is delimited by the following instruments.
- From the point where the River Ebeji bifurcates, as far as Tamyar Peak, by the Thomson-Marchand Declaration of 1929-1930 (Paras 2-60), as incorporated in the Henderson – Fleurian Exchange of Notes of 1931;
- From Tamyar peak to pillar 64 referred to in Article xii of the Anglo-German Agreement of 12 April 1913, by the British Order in council of 2 August 1946;
- From pillar 64 to the Bakassi peninsula, by the Anglo German Agreements of 11 March and 12 April 1913.
The Court examined point by point seventeen sectors of the land boundary and specifies for each one how the above-mentioned instruments are to be interpreted (paras -91, 96, 102, 114, 119, 124, 129, 134, 139, 146, 152, 155, 160, 179, 184 and 189 of the judgement). For details on the above refer to http://www.icj-cij.org/iciwww/ipresscom/ipress2002/iprescom2002-26cn20021Q1Q.htm.
- In Bakassi, the court decides that the boundary is delimited by the Anglo-German
Agreement of 11 March 1913 (Articles xviii – xx) and that sovereignty over the
Bakassi Peninsula lies with Cameroun. It decides that in this area, the boundary
follows the thalweg of the River Akpakorum (Akwayafe), dividing the mangrove
islands near Ikang as far as a straight line joining Bakassi point and King point.
- As regards the maritime boundary, the ICJ, having established that it has
jurisdiction to address this aspect of the case, which Nigeria had disputed, fixes the
course of the boundary between the two states’ maritime areas.
In its judgement, the court requests Nigeria expeditiously and without condition to withdraw its administration and military or police forces from the area of Lake Chad falling within Camerounian sovereignty and from the Bakassi peninsula. It also requests Cameroun expeditiously and without condition to withdraw any administration, military or police forces which may be present along the land boundary from Lake Chad to the Bakassi Peninsula on territories which pursuant to the judgement fall within the sovereignty of Cameroun.
In addition to the above, the ICJ took note of Camerou’s undertaking, given at the hearing, to “continue to afford protection to Nigerian living in the (Bakassi) Peninsula and in the Lake Chad area”. The 10th October 2002, 150-page judgement of the ICJ awarded sovereignty over oil-rich Bakassi Peninsula to Cameroun. Of course the ruling of the ICJ was predicated on Article xviii – xx of the Anglo-German Agreement of 11 March, 1913,and en the Yaounde II and Maroua Declaration of 1971 and 1975 respectively, by which General Yakubu Gowon purportedly ceded the Bakassi Peninsula to Ahidjo’s Cameroun.
ANALYSIS OF THE ICJ RULING
Local and International jurists as well as informed political scientists, and politicalcommentators have reacted variously to the ICJ ruling over the legal title of Bakassi Peninsula. Legal luminaries apologetic to the Nigerian cause frowned at the judgement and remarked that old calendar, encompassing the Bakassi Peninsula, was in 1913, a protectorate and not a colony of Great Britain. According to them, a “protectorate” signifies authority assumed by a strong state over a weak underdeveloped one without direct annexation. This is in centre administration to a “colony” or a land settled by people from another country, to whose government it is, in some degree, subject. In view of the above, they maintain that Britain had no legal right to cede the Bakassi Peninsula to Germany in 1913, having regard to the time- worn legal maxim – nemo dat quod non habet (he who hath not cannot give).
However, the above judgement is not intellectually right and convincing. That theterritory then was a protectorate further conferred Britain the power to legislate and
administer the territory in line with her accepted patterns, preferences and choices. Besides,
the provisions of the foreign Jurisdiction Acts of 1890 and 1913 (consolidated statutes)
under which the crown’s power of legislation was established in protectorates and trust
territories as follows:
Whether the jurisdiction acquired is based on treaty, capitulation, grant, usage, sufferance or other lawful means, it may be held and exercised in as ample manner as if acquired by cession or conquest of territory.
Following from the-above, we can validly argue that the jurisdiction available to the crown in a country under its protection was indistinguishable in legal effect from that where the territory was acquired by conquest (see Sobhuza II v Miller (1926) AC: 518 at 524). As a corollary of the above, the Anglo-German Agreement of 1913 acquired validity on the strength of the provisions of the Foreign Jurisdiction Acts, particularly of 1890 (Ibid).
Meanwhile, Justice Abdul Koroma, while faulting the ICJ ruling remarked that by denying the legal validity of the 1884 treaty, while at the same time declaring valid the Anglo-German Agreement in 1913; the Court decided to recognize a political reality over the express provisions of the 1884 treaty (see, the Bulletin from Information Department, ICJ, 2002). The problem with this line of thought is that Justice Koroma appears to be oblivious of the established legal maxim – leges posteriors priores contrarias abrogant (later laws abrogate prior contrary laws).
To substantiate the conclusion drawn from the argument posited by Justice Koroma, the court’s verdict is that the colonial treaties (between Britain and Germany, 1913; and between Britain and France, 1939) pertaining to the Southern and Northern border respectively were valid legal instruments. Similarly, the court ruled that the Agreements between Nigeria and Cameroun in 1971 and 1975 are also valid legal instruments. These treaties or agreements, according to the court, established legal right of sovereignty, for each of the parties; and formed a sound oasis for defining and demarcating the contentious international boundaries between the two countries. Indeed the Port 1913treaties signed by the two countries merely reinforced the earlier treaty signed between Britain and Germany in 1913; nothing can be furthered from an objective reality and truth. In what appears most objective and analytic evaluation of the ICJ ruling, Asobie in his article “Bakassi Debacle: Contending Principles and Political Conflicts” stated, among others, that the World Court could not give a ruling different from this considering the evidence before it much of which emanated from the Nigerian side, and given the nature of Nigeria’s defense which he considered rather weak and apologetic. He observes that Nigeria’s portion was weakened from the start by her earlier position, often publicly stated, en the matter. For instance, as earlier indicated by a policy statement issued by Abubakar Tafawa Balewa’s government in October 1960, the Nigerian government had explicitly and, unequivocally endorsed the doctrine of utipossidetis juris policy in relation to colonial boundaries. This Asobie noted, guided the legal team that represented Nigeria as clearly stated by AuwaluHamisuYadudu, a member of the team, and once legal adviser -to General Sani Abacha (1993-1998), “there is no way we can escape relying on pre-independent instruments that shaped African countries. And these’ instruments do not exactly show the border as we would want it to be in Nigeria” (The Guardian, October 27, 2002:10).
Having premised the defence on the above, the Nigerian team found themselves rationalizing what they accepted as illegal occupation legalized by the principle of effective occupation. When we consider the Guardian Newspaper reports of October 13, 2002: 12; November 4 2002: 8; October 11 2002: 3; November 1, 2002: 9; and November 4 2002: 9; we shall observe that Nigeria Government by omission or commission accepted the sovereignty of Cameroun over Bakassi Peninsula. As revealed by Titilayo Abiodun, a Surveyor who had worked in Nigeria’s Survey Department, “the Nigerian Government had earlier “adopted” the Anglo-German treaty of 11th March 1913 treating it as valid, and as a sound basis for the declination and demarcation of the boundary between Nigeria and Cameroun (see Asobie, for details).
Other indicting instances abound. In 1972 for example, through a letter written to Nigeria’s Ministry of External Affairs by Nigeria’s Commissioner of Justice and Attorney-General of the Federation, Dr. Taslim O. Elias; and in 1984 via a letter written to the military Governor of Cross River State, Lt. Col. Dan P. Archibong, by Rear Admiral V. L. Oduwaiye, declaring that “Bakassi Peninsula and the Rio-del-key estuary are definitely in Cameroun territory. Similarly, as late 1993, Nigeria’s foreign Affairs Minister, Alhaji Baba GanaKingibe, at the point when Nigeria sent troops to Bakassi, distributed maps to journalists which among others, indicated that Bakassi was lock, stock and barrel, in Cameroun (The Guardian, October, 13 2002: 1-2). This official self-indictment naturally undermined the quest to “appropriate” Bakassi peninsula even on the principles of effective occupation, law of accretion or self-determination.
In the midst of the present reality, the Nigerian loyal representatives at the court placed the burden of the Nigerian case on the principle of effective occupation and historical consolidation. In the circumstance, the presentation of Nigeria’s case was rather apologetic. Perhaps, in a bid to avoid paying compensation to Cameroun for Nigeria’s alleged illegal occupation of Camerounian territory, the Nigerian team at the court pleaded:
Even if the court should find that Cameroun has sovereignty over these areas (that is, the-“Lake Chad area and the Bakassi region,), the Nigerian presence there was the result of a ‘reasonable mistake’ or honest belief. Accordingly, Nigeria cannot be held internationally responsible for conduct, which, at the time it took place, Nigeria has every reason to believe,was lawful (The Guardian, November 4, 2002: 8).
As expected, the ICJ rejected the argument advancedby Nigeria, which was
predicated principally on the claim of effective occupation. As Gilbert Guihalaume, the
presiding Judge, later explained,
It moreover rejected the theory of historical consolidation put forward, by Nigeria and accordingly refused to take into account the effectivites relied upon by Nigeria. It ruled that in the absence” of acquiescence by Cameroun, these, effectivjies could not prevail over Cameroon’s conventional titles (TheGuardian, October 11, 2002:3).
Perhaps, Nigerian delegation was aware of the futility of predicating its case and defence on the principle of self-determination. Indeed the actions of previous Nigerian governments would still have damaged the case; and hence make hellow the defence. It should be revealed that in February 1961, the United Nation afforded the Efiks, the Ekoisand the Bokis (regarded as Nigerians), as well as other ethnic groups in Southern Cameroun the opportunity, through a plebiscite, to vote on whether they wished to integrate, with the federation of Nigeria or with the Republic of-Cameroun. At the time, the British administered the people of Bakassi peninsula as part of Southern Cameroun. Out of a total population of about 1,500, 00, only 354,11J adults of 21 years and above representing 23.6% of the population, registered to vote those who voted for union with the Republic of Cameroun numbered 233,571, representing 65.95% of the registered voters. Moreover, those who voted for integration with Nigeria numbered 97,741 or 27.6% of the registered voters. Given the result of the plebiscite, the UN General Assembly endorsed the results; worse still, Nigeria political leadership actually canvassed either states to vote, and indeed Nigeria voted, for the resolution endorsing the results.
The above speak volumes on Nigeria’s uncoordinated and self-indicting and fledging defence over the legal title over the Bakassi peninsula. The case was lost severally even before the ICJ ruling and indeed the 1975 Maroua accorded recklessly signed by General Gowon and Ahidjo of Cameroun sealed Nigeria’s legal claim and consolidated sturdy Cameroun defence over the legal title of Bakassi Peninsula. Indeed, overwhelming evidence point to the fact that Nigeria had illegally occupied foreign land, and the principles of effective occupation and self-determination could not apply here probably because the Nigerian Government was more interested in the oil-rich land and not on the welfare of the inhabitants, and probably because Cameroun refused to acquiesce to the occupation. Nothing can be furthered from an objective reality.
In this study, we had set out to evaluate the objectively or otherwise of the ICJ Ruling on the legal title of the Bakassi Peninsula. We noted, among others, that the expansionist interest of the conquering imperialist powers in Africa resulted in a territorialdivision that bore little or no relation to the character and distribution of the populations of the former tribes and empires that the Europeans originally met when they first arrived. Therefore, the ill-defined colonies were administered by their colonial administration with economic interest as their major goal. Not expectedly, only a few of Africa over 108 boundaries have been spared disquiet and skirmishes on account of the arbitrariness and absurdities in the way in which it was created. Consequently, Africa has continued to record disputes that sometimes assume the form of military conflict, as had occurred between Nigeria and Cameroun.
The border dispute between Cameroun and Nigeria is a classical example of such colonial-induced disputes. In fact, there is a relationship between border disputes in Africa as a whole, and the border dispute between Cameroun and Nigeria over the Bakassi Peninsula in particular, and subsequent adjudication by the ICJ and the current diplomatic initiatives that together with the legal framework promise to enhance peace in the area. Nigeria lost its legal title over Bakassi Peninsula following the October 10 2002 ICJ ruling. The ICJ based its verdict on colonial treaties and 1971 and 1975 Agreements between Nigeria and Cameroun. The court noted that these treaties or agreements established legal right of sovereignty, for each of the parties, over some of the territories in dispute and formed a sound basis for defining and demarcating the contentious international boundaries between the two countries.
The verdict has elicited several comments. While few legal luminaries contend that the ruling was fundamentally flawed and informed by international conspiracy; notable political scholars, among whom is Asobie argued on the contrary. According to the latter, the World Court may not have given a ruling different from this, considering the evidence before it, much of which emanated from the Nigerian side, and given the nature of Nigeria’s defense which Asobie considered rather weak and apologetic.
On the basis of the above, we empirically noted that the inconsistent and uncoordinated defence put forward by the Nigerian delegation and seeming utter disregard of human factors that inhabit the Bakassi Peninsula reflect the internal dynamics, policy initiatives and foreign policy posture of successive political leadership. These factors combine to ridicule Nigeria’s flimsy defense and exposed the unpopular policies of successive Nigerian leaderships, which tended to dehumanize, suppress and disregard public opinion. The loss of the legal title over Bakassi Peninsula was not surprising; what is most baffling is that the World Court did not award stiff penalties in form of compensations for Nigeria’s illegal occupation of the contentious area. Even the Nigerian team accepted the fact on the ground and pleaded that the Nigerian presence in Bakassi was the result of a ‘reasonable mistake’, or ‘honest belief. However, permanent peace cannot be guaranteed from such verdict but through a sustained and consolidated constructive engagement by the two countries, over demarcation of the boundaries. The Nigeria-Cameroun Mixed Commission is doing enough in this regard.
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