International
Court of Justice Upholds its Jurisdiction
in Case Brought by Cameroon Against Nigeria
By Peter H.F. Bekker, Ph.D.
June 1998
On June 11, 1998, the International
Court of Justice (ICJ) ruled that it has jurisdiction
in the case brought by Cameroon against Nigeria
in 1994. The Court, which is the principal
judicial organ of the United Nations entrusted
with settling legal disputes between sovereign
states, will proceed to consider Cameroon's
Application of March 29, 1994, as amended
on June 6, 1994, requesting the Court to determine
the question of sovereignty over the Bakassi
Peninsula (occupied by Nigerian armed forces)
and over islands in Lake Chad, and to specify
the course of the land and maritime boundary
between Cameroon and Nigeria. The Court consists
of 15 judges elected to nine-year terms by
the UN General Assembly and Security Council,
together with two judges ad hoc appointed
especially for the duration of the case by
Cameroon and Nigeria.
As the basis of the Court's
jurisdiction, Cameroon has relied on the declarations
made by the two parties accepting the Court's
compulsory jurisdiction under Article 36(2)
of the ICJ Statute. That provision, known
as the "Optional Clause," provides that the
states parties to the ICJ Statute (currently
all the 185 UN member states and Nauru and
Switzerland) may at any time declare that
they recognize as compulsory, without special
agreement, in relation to any other state
accepting the same obligation, the Court's
jurisdiction in all legal disputes concerning
the interpretation of a treaty, any question
of international law, the existence of any
fact which, if established, would constitute
a breach of an international obligation, or
the nature or extent of the reparation to
be made for the breach of an international
obligation.
On December 13, 1995, Nigeria
filed eight "preliminary objections" challenging
the Court's jurisdiction and the admissibility
of Cameroon's Application. Under the Rules
of Court, the filing of preliminary objections
(comparable to a motion to dismiss a case)
results in the automatic suspension of the
main proceedings and the Court must rule on
such objections by way of a judgment before
the case can proceed.
By 14 votes to 3, the Court rejected
Nigeria's first objection that
the Court has no jurisdiction to entertain
Cameroon's Application. According to the
Court, Cameroon did not violate the principle
of good faith by not informing Nigeria
of its intention and decision to bring
a case against Nigeria: by the deposit
of Cameroon's declaration of acceptance
of the Court's compulsory jurisdiction
with the UN Secretary-General on March
3, 1994, Cameroon became a party to the
system of the Optional Clause in relation
to Nigeria, which deposited its declaration
in 1965, and no further condition needed
to be fulfilled. The Court pointed out
that the notion of reciprocity, which
lies at the core of the Optional Clause
system, is concerned with the scope and
substance of the commitments entered into
(including reservations), and not with
the formal conditions of their creation,
duration or extinction. Reciprocity is
not affected if a declaration is received
by other states many months after its
formal deposit with the UN Secretary-General.
By 16 votes to 1, the Court rejected
Nigeria's second objection that
for many years prior to the filing of
the Application, Cameroon and Nigeria
had in their regular dealings accepted
a duty to settle all boundary questions
exclusively through the existing bilateral
machinery. The Court pointed out that
the fact that Cameroon and Nigeria had
attempted to solve some of their boundary
disputes through bilateral negotiations
does not imply that either one had excluded
the possibility of bringing any boundary
dispute before the ICJ. There is no rule
of international law that requires the
exhaustion of diplomatic negotiations
prior to seizing the Court.
By 15 votes to 2, the Court rejected
Nigeria's third objection that
the settlement of boundary disputes within
the Lake Chad region is subject to the
exclusive competence of the Lake Chad
Basin Commission. The Court found that
this commission is not a judicial body
with exclusive authority to rule on the
territorial dispute between Cameroon and
Nigeria; it is an international organization
exercising its powers within a specific
geographical area. Its purpose is not
to settle regional matters relating to
the maintenance of international peace
and security under Chapter VIII of the
UN Charter. In any event, the existence
of procedures for regional negotiation
cannot prevent the Court from exercising
the functions conferred upon it by the
UN Charter and the ICJ Statute.
By 13 votes to 4, the Court rejected
Nigeria's fourth objection that
the Court should not in these proceedings
determine the boundary in Lake Chad to
the extent that that boundary constitutes
or is constituted by the tripoint in Lake
Chad where the frontiers of Cameroon,
Chad and Nigeria meet, because it directly
affects the Republic of Chad, a third
party. The Court found that the legal
interests of Chad as a non-party do not
rise to the level of constituting "the
very subject-matter" of the judgment to
be rendered on the merits of Cameroon's
Application necessary to prevent the Court
from ruling on the dispute. In the Court's
view, Cameroon's request to specify the
Cameroon-Nigeria frontier from Lake Chad
to the sea does not imply that the tripoint
could be moved away from the line constituting
the Cameroon-Chad boundary.
By 13 votes to 4, the Court rejected
Nigeria's fifth objection that
there is no dispute concerning boundary
delimitation as such throughout the whole
length of the boundary from the tripoint
in Lake Chad to the sea, subject, within
Lake Chad, to the question of the title
over Darak and adjacent islands, and without
prejudice to the title over the Bakassi
Peninsula. Although the Court acknowledged
that it cannot be said that the disputes
over Darak and the Bakassi Peninsula in
themselves concern so large a portion
of the 1,000-mile boundary that they would
necessarily constitute a dispute concerning
the entire boundary, it noted that
Nigeria has constantly been reserved in
the manner in which it has presented its
own position on the matter. Because of
Nigeria's position, the exact scope of
the dispute cannot be determined at present,
but there does exist a dispute at least
as regards the legal bases of the boundary.
By 15 votes to 2, the Court rejected
Nigeria's sixth objection that
there is no basis for a judicial determination
that Nigeria bears international responsibility
for alleged frontier incursions, because
the material submitted by Cameroon is
insufficient in order to enable it to
defend itself and to enable the Court
to make a fair judicial determination
of the legal issues before it. The Court
concluded that Cameroon's Application
is admissible: it satisfies the Rules
of Court by containing a sufficiently
precise and succinct statement of the
facts and grounds on which Cameroon bases
its claim, which it has some latitude
in expanding subsequently.
By 12 votes to 5, the Court rejected
Nigeria's seventh objection that
there is no legal dispute concerning delimitation
of the maritime boundary between Cameroon
and Nigeria which is at the present time
appropriate for resolution by the Court,
because no maritime boundary determination
is possible prior to the determination
of title over the Bakassi Peninsula
and, in any event, bilateral negotiations
to effect a delimitation by agreement
have not taken place. The Court pointed
out that it is within its discretion to
arrange the order in which it will address
those issues, so that it can determine
the title over the Bakassi Peninsula and
the maritime boundary delimitation successively.
Moreover, the parties' Optional Clause
declarations do not contain any condition
relating to prior negotiations to be conducted
within a reasonable time period.
Finally, by 12 votes to 5, the Court
declared that Nigeria's eighth
objection does not have, in the circumstances
of the case, an exclusively preliminary
character. According to that objection,
the question of maritime delimitation
necessarily involves, beyond a point that
is some 17 nautical miles from the coast,
the rights and interests of third states,
and that Cameroon's Application is to
that extent inadmissible. Although the
Court acknowledged that it appears that
rights and interests of third states (in
particular Equatorial Guinea and Sao Tome
and Principe) will become involved if
the Court accedes to Cameroon's request,
it found that Nigeria's objection does
not possess an exclusively preliminary
character because the Court would of necessity
have to deal with the merits of Cameroon's
request in order to determine whether
the rights and interests of third states
would indeed be affected by its judgment.
In such circumstances, the Rules of Court
provide that the objection be settled
during the proceedings on the merits,
where it might have to be upheld at least
in part.
The Court will fix a new time
limit for the submission of a Counter-Memorial
by Nigeria in response to Cameroon's Memorial
setting forth its claims. The Court's preliminary
ruling leaves unaffected any defenses on the
merits that Nigeria may wish to advance in
the subsequent written proceedings and hearings
on the merits of the case. The full decision
may be found on the Internet at: http://www.icj-cij.org
Peter H.F. Bekker, Ph.D.McDermott,
Will & EmeryNew York, NY
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