COMMENTARY ON THE ICJ RULING
IN THE LAND AND MARITIME BOUNDARY BETWEEN NIGERIA AND CAMEROON,
FOCUS ON THE BAKASSI PENINSULA
By Denis Atemnkeng
On 29 March 1994 the Government of the Republic of Cameroon filed in the Registry of the International Court of Justice an Application instituting proceedings against the Government of the Federal Republic of Nigeria concerning a dispute described as relating essentially to the question of sovereignty over the Bakassi Peninsula.
On October 10, 2002, the court delivered its ruling declaring the Bakassi peninsula to be “Cameroonian”.
The submissions of the parties with regard to sovereignty over the Bakassi peninsula are summarised in paragraphs 193 to 324 of the ICJ ruling. In Paragraph 193(b) the court cites the request of the Cameroon party thus: In its final submission Cameroon asks the Court to adjudge and declare: “that, in consequence, inter alia, sovereignty over the Bakassi Peninsula is… Cameroonian”
The submissions that follow from the Cameroon side to support this request are exclusively designed to show that the Bakassi Peninsula is located within the Southern Cameroons. In paragraph 210, we read: “Bakassi is said to have formed part of the area of the British Cameroons termed Southern Cameroons. This territorial definition is said to have been repeated in the trusteeship agreements which succeeded the mandates system after the Second World War…. Cameroon produces documentary evidence, British Orders in Council and maps which, it claims, evidence that Bakassi is consistently placed within the British Cameroons throughout this period. … Cameroon points out that the map attached to the Report of the United Nations Plebiscite Commissioner shows that the Bakassi Peninsula formed part of the Victoria South West plebiscite district.... This would show that the peninsula was recognized by the United Nations as being a part of the Southern Cameroons.”
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Paragraph 213: “It is true that the Southern Cameroons Plebiscite Order in Council, 1960 makes no mention of any polling station bearing the name of a Bakassi village. Nor, however, does the Order in Council specifically exclude Bakassi from its scope. The Order simply refers to the Southern Cameroons as a whole. But at that time it was already clearly established that Bakassi formed part of the Southern Cameroons under British trusteeship.”
Similarly, the evidence that was tendered to support this position are all Southern Cameroons maps and territorial and maritime boundary treaties.
It is the position of this paper that a number of issues eluded the court, including the following: (1) the legal and geographical identity of the Cameroon party; (2) the fact that the boundary claimed by the Republic of Cameroon in the Bakassi region is the boundary of the British Southern Cameroons, and not that of the Republic of Cameroon; (3) the fact that the Republic of Cameroon was never required, by the Court, to prove its title to the Southern Cameroons and therefore such title was assumed; (4) the fact that the Court never noticed or wondered why the Republic of Cameroon should argue that the Bakassi peninsula is Southern Cameroons territory but request the court to declare that it is “Cameroonian”, as if the terms “Southern Cameroonian” and “Cameroonian” were interchangeable in the circumstance; (5) the fact that the Court never cross-checked compliance of the Republic of Cameroun with Article 102(1) of the UN Charter; (6) the fact that the Republic of Cameroon was not the successor state to either German Kamerun or British Cameroons and therefore it could not rely on any German Kamerun maps to determine its boundaries with Nigeria in the area of the Bakassi peninsula; (7) the fact that the parties argued lengthily on the principle of uti possidetis, but the Court never relied on inherited boundaries for its ruling, as dissenting Judge ad hoc Mbaye noted: “I regret that the Court did not rely on the principle of ‘respect for colonial frontiers’, since the Parties devoted lengthy and varied arguments to this matter, and it is of great importance in Africa”.
The geographical identity of a country describes the territory which the country is entitled, under International Law, to assert sovereignty over. In the case of an African country, and especially a Member State of the African Union, this is the territory it inherited from colonization on its date of independence, (Article 4(b) of the African Union Constitutive Act). The first question to ask to establish the geographical identity of the Cameroon party would have been this: the Republic of Cameroon is the successor state to which colonial/trust territory? If Cameroon responded that it appeared before the court as the successor state to French Cameroons, the next question would be this: Did French Cameroons have a maritime boundary with Nigeria in the Bakassi Peninsula? The answer is an emphatic No! How then can the successor state to French Cameroons have a boundary different from that of French Cameroons? It is obvious that this would have been the preliminary matter in the case, a matter necessary if the identity of the Cameroon party was to be ascertained definitively.
From these considerations it becomes apparent that the Cameroon party was something more than the successor state to French Cameroons. But what was it? Under Article 4(b) of the African Union Constitutive Act and 102(1) of the UN Charter, the only instance in which the successor state to French Cameroons could lay claim to any other boundary than that of French Cameroons is if it could show a treaty entered into after its date of independence showing an adjustment in its boundaries. Did the Cameroon party show any such instruments by which its boundaries had been subsequently adjusted? We find no such instrument in the whole case or the judgment. By laying claim to the Bakassi peninsula, located within the Southern Cameroons, the Republic of Cameroon was fraudulently laying claim to have also been the successor state to British Southern Cameroons! The court either evaded this question or did not notice it. Nevertheless, the question cannot be avoided: by what instruments of international law was the Republic of Cameroon pretending to be the successor state to British Southern Cameroons?
It is clear therefore that the Cameroon side before the Court was posing both as the successor state to French Cameroons and the successor state to British Southern Cameroons, but without a shred of evidence on how it became the successor state to British Southern Cameroons! Until the Cameroon side can present this evidence, it must be concluded that its exercise of jurisdiction over the British Southern Cameroons is based purely on illegality. It is colonization and annexation. Only from this hidden expansionist agenda does it become clear why the Cameroon party before the court would argue that the Bakassi peninsula is Southern Cameroons territory but curiously request the court to declare it to be simply “Cameroonian”. Thus it was using the generic particle “Cameroon” in the names of the two distinct territories to blindfold the court. Whenever boundary claims are at stake, the only way for the Court to conclusively identify each party is to obtain the map of the territory of each party as it was on its date of independence.
The Court wrongly assumed that the Bakassi Peninsula must belong to either of the parties to the conflict. In this case, it does not. By disregarding the need for the Republic of Cameroon to prove its claimed title to the Southern Cameroons and thus properly identify itself before the Court, the Court aided and abetted the Republic of Cameroon’s colonization and annexation of the Southern Cameroons.
Because of these lapses, the British Southern Cameroons territory, in which the Bakassi peninsula is located, was all along, and falsely and by mere assumption, treated as if it were the Republic of Cameroon’s territory. The Republic of Cameroon therefore intentionally deceived the Court. But what is the origin of the link between the Southern Cameroons and the Republic of Cameroon? This leads us to the next point.
The pretended link between the Southern Cameroons and the Republic of Cameroon
For a better understanding of the analysis, it is necessary to go back and recount a little bit of the history of how the British Southern Cameroons came to have any contact at all with the Republic of Cameroon.
Before the First World War, French Cameroons and British Cameroons were all parts of the German Kamerun in the gulf of Guinea. After the First World War and with the defeat of Germany, German Kamerun was seized from Germany and partitioned into several parts, with one part going to France and another going to Britain. Other parts are now within the present states of Chad, Central African Republic and the Congo. The British and French parts constituted category B mandated territories under the League of Nations. The part that went to Britain was ruled in two separate parts, a Northern part called the British Northern Cameroons and a Southern part called the British Southern Cameroons or simple the Southern Cameroons. It is therefore important to note that Southern Cameroons does not refer to the Southern part of the Republic of Cameroon. At the end of World War II, the mandates were transformed into trust territories and an agreement was signed by the United Kingdom for its British Cameroons trust on 13 December 1946. France on its part also signed a separate agreement for French Cameroons. It should be noted that these territories that emerged from the dismembered German Kamerun had nothing in common, because the Germans had not established any nation state before the First World War broke out. There was no common parliament, no political parties, nothing in fact that made the country one in any sense. Each of the parts that emerged from this territory was going to be given a completely new destiny under their respective Administering Authorities, in pursuance of Article 76(b) of the United Nations Charter. For ease of administration, Britain ruled its trust territory of British Cameroons as if it were a part of Nigeria, thus together.
In 1954, members of the British Southern Cameroons in the Eastern House of Assembly in Enugu, Nigeria, walked out and established their own government in Buea, which became the Headquarters of the British Southern Cameroons. They established their own autonomous state and a thriving democracy. This state had its own National Assembly, a House of Chiefs, its civil service, a multiparty system and every structure of state. Nevertheless, decisions on the fate of the British Cameroons continued to be taken by the Administering Authority from Nigeria.
On 1 January 1960 the Trust Territory of French Cameroons achieved independence under the name La Republique du Cameroon, translated into English as the Republic of Cameroon. On 1 October 1960 the British colony of Nigeria achieved independence under the name, the Federal Republic of Nigeria. The fate of the British Cameroons, which up till now, was being ruled from Nigeria had urgently to be determined since Britain was no longer in control of Nigeria, and the United Nations had adopted Resolution 1514 (XV) of 14 December 1960 declaring that "the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the United Nations Charter, and is an impediment to the promotion of world peace and cooperation, and that steps should be taken to transfer, unconditionally, all powers to the Trust and Non-Self-Governing Territories so that they might enjoy complete freedom and independence".
On the argument that the British Cameroons Trust was poor and Britain was not willing to spend for it, Britain proposed “independence by joining” for British Cameroons, with a plebiscite to be held for the Southern Cameroons on 11 February 1961 and for the Northern Cameroons on 12 February 1961. British Cameroons had to decide whether to achieve independence by joining the Federal Republic of Nigeria or to achieve independence by joining the Republic of Cameroon. On the basis of this proposal, the UN organized a plebiscite on 11 February 1961 in the Southern Cameroons, in which the people of the Southern Cameroons voted to achieve independence by joining the Republic of Cameroon.
On 21 April 1961 the UN General Assembly adopted Resolution 1608(XV) in which it endorsed the results of the plebiscites and decided that the Trusteeship Agreement concerning the Cameroons under United Kingdom administration should be terminated for Northern Cameroons on 1 June 1961 and for Southern Cameroons on 1 October 1961. The Republic of Cameroon voted against the adoption of this resolution, after expressing its dissatisfaction with the manner in which the United Kingdom had administered the Northern Cameroons and had organised the plebiscites. These criticisms, together with others, were developed in a White Book which was rebutted by the representatives of the United Kingdom and of Nigeria. In paragraph 5 of Resolution 1608(XV), the General Assembly invited the Administering Authority, the Government of the Southern Cameroons and the Republic of Cameroun to initiate urgent discussions with a view to implementing the agreed policies reached between the parties. Which were these policies agreed between the parties? Were they ever implemented? This was clearly in reference to the implementation of the plebiscite intention expressed by the people of the Southern Cameroons and the terms of the two-state federation. This Resolution was the last to be heard from the United Nations as far as the Southern Cameroons was concerned. There was no follow up to ensure that a due legal union took place between the parties or that the post-plebiscite conference called for in paragraph 5 ever took place.
On 1 September 1961, even while the Southern Cameroons was still a UN Trust Territory, the Assembly of the Republic of Cameroon passed what it called the Federal Constitution, binding the Southern Cameroons, whose trusteeship was yet to be terminated. Events soon took a dramatic turn with the death of the Secretary General of the United Nations in the Congo crisis, 18 September 1961. On September 30, the Republic of Cameroon forcefully occupied the territory, with the tacit complicity of the British hurrying to depart.
On 30 September 1961 when the British left, the Republic of Cameroun assumed sovereignty over the territory, without a shred of paper being signed anywhere or any legal instruments of any kind! The Southern Cameroons National Assembly was hastily dissolved and never met again.
Interpretation of the UN-organised Plebiscite
All the confusion regarding the fate of British Southern Cameroons stems from the interpretation of the plebiscite results. The two parties, British Cameroons and the Republic of Cameroon, had agreed that should the vote go in favour of achieving independence by joining the Republic of Cameroon, the two parties would form a federation of two states equal in status. From British Declassified Documents, DD, it is clearly stated that: “In order that the People of Southern Cameroons may achieve independence by joining the Republic of Cameroun, it is necessary that the Federation should come into existence at midnight of 1st October. At one and the same moment, there will be born the independent State of Southern Cameroons and the Federation of the FEDERAL UNITED KAMERUN REPUBLIC. The Federation would be a free association of independent and equal states….” It was the implementation of this agreement, under the auspices of the United Nations through its Administering Authority, the United Kingdom, that paragraph 5 of Resolution 1608(XV) was referring to.
How is the UN-organised plebiscite to be interpreted? What was the plebiscite?
Was it a mechanism by which to transfer domination of the Southern Cameroons from the United Kingdom to La Republique du Cameroun? Was it a mechanism by which to make a free gift of the people and territory of the Southern Cameroons to La Republique du Cameroun? Who would be making this free gift? The United Nations? How consistent are these monstrous suggestions to the United Nations Charter and mission? How consistent are they to the duties the Administering Authority assumed under the Trusteeship Agreement?
Was it a contract between the Southern Cameroons and La Republique du Cameroun? If it was a contract, what was the qui pro quo; that is, the thing which La Republique du Cameroun surrendered to the Southern Cameroons in order to obtain its consent? Can it be admitted in the civilized world and in criminal law that a people can contract for the crime of colonization to be committed against them? Would a contract be valid with nothing given in return, without a qui pro quo? How would a response given by the People of the Southern Cameroons to a question asked them by the United Nations constitute a contract with a third party to the dialogue, a third party to whom the people of the Southern Cameroons were not addressing themselves in the Plebiscite? Was it a treaty of Union between the People of the Southern Cameroons and La Republique du Cameroun? Did it bind the People of the Southern Cameroons to Republique du Cameroun any way? What would a self-governing people, with a National Assembly, Prime Ministry, constitution, police force, civil service and all state structures gain by allegedly surrendering control over its own government, people, freedom and territory to an lien power? In what sense would the People of the Southern Cameroons be “achieving the independence” they voted for in the plebiscite if anyone were to suggest that the Plebiscite was just a mechanism for the People of the Southern Cameroons to lose control over everything: their life, their people, their territory, their posterity, their freedom and all? Is this self-determination? Let the reader reflect: we are not dealing here with a small strip of land. The Southern Cameroons has a surface area of 43,000 sq. km and a current population of about 6 million people. It is thus demographically bigger than at least 60 UN and 18 AU Member States, and spatially bigger than at least 30 UN and 12 African Union Member States!
What protection was provided by the United Nations to ensure that the Southern Cameroons was not annexed in the proposed union, if the Union ever took place? The Southern Cameroons already had a thriving democracy; had a multiparty system; its own state structures and everything that a modern state would need. It was far more politically developed than the Republic of Cameroon, which was boiling in civil war, did not know multiparty system and so on! It was the Southern Cameroons that was providing refuge and asylum to the people of Republique du Cameroun fleeing its civil war! The pretext that the territory was poor is lame, because wealth is not a static thing; riches may be discovered with time. Today, the Southern Cameroons produces about 70% of the wealth of the two Cameroons. So why was it being asked to join another state? These questions underlie the difficulties surrounding a clear understanding of the Southern Cameroons case. It cannot be understood how an Administering Authority would propose union without any form of safeguards whatsoever, and not bother to ensure even that the proposed union took place.
Three pertinent Resolutions of the United Nations govern the Southern Cameroons self-determination case.
Resolution 1514(XV)
The aspirations of the peoples of the Territories to achieve self-determination, and the international community's perception that United Nations Charter principles were being too slowly applied, led to the United Nations General Assembly's proclamation on 14 December 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples - Resolution 1514 (XV). Resolution 1514 (XV) declared that "the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the United Nations Charter, and is an impediment to the promotion of world peace and cooperation, and that steps should be taken to transfer, unconditionally, all powers to the Trust and Non-Self-Governing Territories so that they might enjoy complete freedom and independence".
Resolution 1541 (XV)
After the Declaration on Granting of Independence to Colonial Countries and Peoples was adopted, the next day, on 15 December 1960, the UN General Assembly adopted Resolution 1541(XV) defining the three legitimate ways in which a non-self governing territory could be said to have achieved a full measure of self-government: (1) free association with an independent State, (2) integration into an independent State, or (3) independence. These Resolutions called for the free expression of the consent of the non-self governing people through democratic means.
Principle VII of Resolution 1541(XV) states: (a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.
(b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.
Resolution 1608(XV)
“3. Considers that, the people of the two parts of the Trust Territory having freely and secretly expressed their wishes with regards to their respective futures in accordance with General Assembly resolution 1352 (XIV) and 1473 (XIV), the decisions made by them through democratic processes should be immediately implemented;
“5. Invites the Administering Authority, the Government of the Southern Cameroons and the Republic of Cameroun to initiate urgent discussions with a view to finalizing, before October 1, the arrangements by which the agreed and declared policies of the parties concerned will be implemented.”
To allege that the Southern Cameroons fate was settled in accordance with the United Nations Charter, all three Resolutions: Resolution 1514(XV) of 14 December 1961; Resolution 1541(XV) of 15 December 1961 and Resolution 1608(XV) must all be complied with. Resolution 1514 creates the obligation to decolonize. Resolution 1541(XV) defines the various methods of granting freedom or self-determination to non-self governing territories. The method chosen by the Southern Cameroons was free association, as is evident from the Plebiscite questions and the understanding with Republique du Cameroun to form a federation of two states equal in status. The only way in which the people of the Southern Cameroons could be independent within the “joining” in conformity with the plebiscite vote to “achieve independence by joining”, was to retain their cultural identity, language and ability to make their own constitution within the federation of two states equal in status. It cannot be argued that they were going to become independent merely by joining La Republique du Cameroun; that is a big deception. It would just constitute transfer of domination from the United Kingdom to La Republique du Cameroun and not independence. To be independent, the Southern Cameroons must have the right to determine its internal constitution in compliance with Resolution 1541(XV)(b); its individuality must be respected, etc. The concept of achieving independence while at the same time joining highlights the desire for separate identity in the proposed associations. The Plebiscite questions read: “Do you wish to achieve independence by joining the Republic of Cameroon?” or “Do you wish to achieve independence by joining the Federation of Nigeria?” These were the two alternatives.
Not a single one of these Resolutions was complied with, neither Resolution 1541(XV) nor Resolution 1608(XV)(5). Those who allege unification without proof in the form of an agreement signed between both sides simply ignore all these Resolutions and any legality whatsoever. Under the Law of Trust, could the beneficiary of the Trust, the Southern Cameroons, legally enter into any agreements at all before the termination of the Trust?
Paragraphs 3 and 5 of Resolution 1608(XV) show clearly that the United Nations distinguished between the plebiscite and its implementation. The Plebiscite was only a dialogue between the United Nations and the People of the Southern Cameroons, to the exclusion of all other parties. The United Nations could never know what the people of the Southern Cameroons wanted without asking them the Plebiscite questions. Consequently, the response to these questions, addressed exclusively to the United Nations, could in no way bind the People of the Southern Cameroons to any other party. There was no commitment imbedded in the Plebiscite answers towards any third party. The Plebiscite was void of any arrangements or terms that could spell out the rights and obligations of each party in the proposed union, as a union treaty is supposed to do. It could not therefore be taken as any form of arrangement. If a guardian asks the girl over whom he has custody whether she would like to marry Paul or Peter, and she says she would like to marry Paul, Paul cannot by any means claim that her response is equivalent to the celebration of the marriage. In fact, the marriage could actually fail to take place if due procedure was not complied with. Consequently, the intention and its implementation are two separate things. Attention of the reader is drawn to the underlined parts in paragraphs 3 and 5 of Resolution 1608(XV) above. The Plebiscite was only a declaration of intention, an expression of intention, a revelation of the intention of the People of the Southern Cameroons to the United Nations, and not the implementation of the intention. Only after this intention was made known to the United Nations through the Plebiscite process could the United Nations then take steps to implement it. The result of the Plebiscite could not effect or be the joining. The joining was to take place under the auspices of the United Nations through the Administering Authority as the Trustee and only after all due procedures in accordance with the UN Charter were complied with. Articles 3 and 5 of Resolution 1608(XV) clearly call for the “immediate implementation” of the results of the plebiscite, putting an end to any argument whether the plebiscite was the union itself or not.
Over and above these arguments is the simple fact that the only authority which can produce proof of a valid union is the United Nations itself, through its Administering Authority over the Southern Cameroons. The Southern Cameroons was a United Nations Trust Territory, not a colony. Thus it had international personality and a legal status. The United Nations owes an obligation to account fully, through the presentation of valid legal instruments, showing how the fate of this Trust was settled. Could a United Nations Trust territory be ceded away without any legal instruments of union? Could it, and its people, just be made a gift to another state, and for that much, a former UN Trust Territory of the same status? By who and for what reason? Were the People of the Southern Cameroons mere chattel to be given away? Is it possible for the fate of a United Nations Trust territory to be so-called decided without any trace of the instruments through which the settlement was done? In what sense then was this territory a United Nations Trust Territory if the United Nations is not in a position to produce legal instruments in conformity with the United Nations Charter which show how the fate of this Trust was finally settled? The concept of Trust under which this territory was held by the United Nations must never be forgotten!
If these questions are not enough to put an end to the argument whether there was a union or not, we can take a look at other unions that have taken place in Africa.
EXAMPLES OF OTHER UNIONS IN AFRICA
1. Zanzibar and Tanganyika: The Union was instituted through the The Articles of Union between Tanganyika and Zanzibar in which all the principal details about the union are worked out. The name Tanzania derives from the names of the two states Tanganyika and Zanzibar that united in 1964.
2. Ethiopia-Eritrea: UN Resolution 390 (V) A of 2 December 1950, consisting of 15 Articles drawn up by the UN in the form of a Federal Act. Article 5 instituted an Imperial Federal Council made of equal members from Ethiopia and Eritrea. The UN even appointed Mr. Eduado Anze Montienzo entrusted with the implementation of its Resolution!
3. The Senegambia Confederation: The confederation came into existence on 1 February 1982 following an agreement between the two countries signed on 12 December 1981. Senegal and the Gambia commissioned a United Nations report to study the possible plans and benefits of unification between the two countries in the 1960s[1]. The confederation was dissolved by Senegal on 30 September 1989 when the Gambia refused to move closer toward union.
These cases demonstrate conclusively that there has been no known union on the continent concluded without a prior agreement signed by the parties to the Union. So how are we to believe the allegation that there was any form of union between the Southern Cameroons and Republique du Cameroun when not even the UN is in a position to produce the smallest shred of evidence to that effect?
THE LEGAL, AS OPPOSED TO THE CLAIMED, BOUNDARIES OF A STATE
It is necessary to clarify this distinction between the legal boundaries of a state and its claimed boundaries. This need arises from the lapses noted above in the reasoning and judgment of the ICJ. In view of those lapses, the question arises: what exactly did the ICJ decide: was it the claimed boundaries of the Republic of Cameroon or its legal boundaries according to international law, and particularly Article 4(b) of the African Union Constitutive Act? This paper submits that the ICJ decision, insofar as it was based not on international law but merely on the arguments of the parties, is only a reflection of the claimed boundaries of the Republic of Cameroon, not its legal boundaries as per international law. The fact, which is public knowledge, that the Republic of Cameroon did not succeed German Cameroon, but French Cameroons; coupled with the fact that to use the boundaries of the Southern Cameroons as its own it had to first prove its title to that territory means that serious lapses occurred in the case. Either the court knew about these facts and chose to ignore them (contrary to international law) or these facts eluded it.
THE LAW ON TERRITORIAL ACQUISITION
In the Bakassi case, being a boundary dispute as it was, the major instruments of international law that had to be taken into account would have been the principle of utis possidetis entrenched in Article 4(b) of the African Union Constitutive Act, and the provisions of Article 102(1) of the UN Charter. These provisions, together with the maps and treaties of the territories on their respective dates of independence would largely resolve all territorial disputes. All other UN and African Union declarations against the use of force or the threat of force to acquire territory are only subsidiary. As mentioned above, without resorting to Article 4(b) of the AU Constitutive Act, the geographical identity of disputing parties cannot be conclusively ascertained.
Under the African Union system, the legal boundaries of a State can be no other than those which it inherited on the day of attainment of independence. On that day the boundaries within which the country achieved independence are frozen as its legal boundaries. All members of the African Union, including the Republic of Cameroon, have voluntarily accepted to be bound by this principle. The Bakassi case involved two African countries, and though they were before the ICJ, one would expect the ICJ not to ignore African Union principles and therefore to ensure that its decisions reflect those principles. Moreover, the principle of uti possidetis is not an African principle. It is universal. It was absolutely necessary therefore to determine the boundaries, not as argued at that point by the parties, but as they existed on their respective dates of independence or as adjusted according to the mechanism recognized by the UN Charter.
Article 102(1) of the UN Charter provides the method by which the adjustment of boundaries after independence can be legally achieved and proved. It states: “Every Treaty and every international agreement entered into by any member of the United Nations after the present Charter comes into force shall as soon as possible be registered with secretariat [of the UN] and published by it.” By virtue of this article, if the Southern Cameroons became a part of another state, that state was supposed to file at the Secretariat of the United Nations, a treaty between itself and the Southern Cameroons by which the Southern Cameroons became a part of its territory or associated with it. Only such compliance would give legality to any change in its boundaries. There was no such compliance by the Republic of Cameroon in the Bakassi case, and consequently Article 102(2) applies. It states: “No party to any such treaty or international agreement which has not been registered in accordance with the provisions of para 1of this Article may invoke that treaty or agreement before any organ of the United Nations.” It is absolutely clear therefore that the consequence of not seeing any agreement or treaty deposited by the Republic of Cameroon at the Secretariat of the UN in compliance with Article 102(1) would have been to reject any claim to any alteration in its inherited boundaries! It would simply have been impossible for the Republic of Cameroon to claim any change in its boundaries without complying with Article 102(1). Thus all claims by the Republic of Cameroon to any part of the Southern Cameroons cannot be invoked before UN organs (and the ICJ) in so far as there is no compliance of the Republic of Cameroon with Article 102(1). But the Republic of Cameroon was allowed to get away with this violation before the ICJ!
The question arises: Is the ICJ obliged by any provision in its statutes to rely exclusively on the declarations of the parties to a conflict to ascertain the truth of what they say or it is free to rely on facts other than those advanced by the parties? These other facts on which the Court may rely can include the provisions of the UN Charter, general knowledge or provisions of Acts of other regional organizations such as the African Union (in case the parties to the conflict are both in Africa). So why was the court silent on all these issues?
There are many provisions in the UN Charter which prohibit the illegal acquisition of territory; many resolutions condemning aggression and every fruit thereof. In the circumstance, none of these facts appear to have been considered by the court.
Proving the Republic of Cameroon’s pretended title to the Southern Cameroons
Was it necessary for the Republic of Cameroon to prove its claimed or pretended title to the Southern Cameroons territory before it could use the Southern Cameroons boundary in the Bakassi peninsula as its own? Having failed to prove such title, was it legal for the court to admit evidence, as belonging to the Republic of Cameron, which in fact did not belong to it? All the evidence tendered to argue on the boundary in the Bakassi peninsula was in the form of Southern Cameroons maps and treaties. Would the use of such evidence, by the Republic of Cameroon, amount to a falsification of evidence? These are all valid questions to be posed concerning the handling of the Bakassi case by the ICJ.
The Republic of Cameroon was a Trust territory of the same category as the Southern Cameroons. The Southern Cameroons had international identity and personality, first as a League of Nations mandate and from 13 December 1946 as a United Nations Trust Territory. It was consequently not a terra nullius. It had its own state structures, its own people, who also long to have a destiny of their own or a right to self-determination, like every other people. The Southern Cameroons was not just a piece of chattel that could be bought and sold or given away at no cost, and without any consideration of its peoples. Therefore it would be to accuse the United Nations of indulging in slave trade, and aiding and abetting the crime of colonization, both contrary to its Charter, if we suppose that the United Nations would encourage the present situation or was at the origin of it. Therefore it is for the Republic of Cameroon to answer by what instruments of international it is laying claim to the Southern Cameroons.
The Republic of Cameroon is historically and legally not the successor state to German Kamerun. It is not also the successor state to British Cameroons, not even to British Southern Cameroons. It succeeded only French Cameroons. On 30 May 1961, the Republic of Cameroon instituted a case against the United Kingdom at the international court of Justice (ICJ) seeking a declaratory judgment from the Court that the United Kingdom had breached some of its duties flowing from the trusteeship agreement with regard to Northern Cameroons , but its attempts were rebuffed by the court, on the grounds that as per Resolution 1608(XV) Northern Cameroons was to join Nigeria on 1 June 1961, and so past this date, no one could raise a claim regarding the duties attached to the Trust. The judgment was delivered on 2 December 1963. This was the Republic of Cameroon’s first expansionist attempt and pretence to have succeeded colonial Germany or some imagination or ambition that every territory that has the particle “Cameroon” in its name must come under the Republic of Cameroon’s domination.
Given the distinct nature of the two territories of Republic of Cameroon and the Southern Cameroons recounted above, and the Republic of Cameroon’s quiescence to the fate of Northern British Cameroons, it must be presumed that the thin thread on which the Republic of Cameroon clings to annex and occupy the Southern Cameroons is a reliance on the intention expressed in the plebiscite. This can only be a pretext, because the Republic of Cameroon would now have respected the wish of the people of the Southern Cameroons to become free from its domination and subjugation. In other words, the Republic of Cameroon’s argument appears to be that the People of the Southern Cameroons, who are alleged to have joined voluntarily, can no longer withdraw voluntarily! This in itself establishes the colonization beyond doubt, because it is clear that in such circumstance the exercise of Republic of Cameroon’s jurisdiction in the Southern Cameroons is no longer according to the will of the people but an alien imposition, contrary to Articles 19, 20(1), 21(1), 22(1) and 23(1) of the African Charter on Human and Peoples’ Rights. All this subterfuge does not spare the Republic of Cameroon the burden to prove, by valid international legal instruments, its pretended title to the Southern Cameroons.
It is very common among writers and speakers on the subject to jump from the fact that a plebiscite took place to the fatally flawed conclusion that there was unification or union between the Southern Cameroons and the Republic of Cameroon or that the Southern Cameroons joined the Republic of Cameroon. It has been sufficiently clarified above that the intention expressed by the People of the Southern Cameroons to the United Nations could possibly not be also its implementation. The United Nations fully recognized this, and this is why in paragraphs 3 and 5 of Resolution 1608(XV) of 21 April 1961, it was calling for the immediate implementation of the policies agreed between the parties. This is clearly with reference to implementation of the intention expressed in the plebiscite.
Even if it is assumed, for the sake of argument, that a union took place, though it did not, it would not amount to the transfer of sovereignty over the territory of the Southern Cameroons to La Republique du Cameroun, the other would-be federated state in the proposed union. In no federation does one state transfer sovereignty over its territory to another! The very idea of one of the proposed federated states coming to impose its rule upon a people who were already ruling themselves in their own territory can only be colonization; it can never be voluntary, because there is no concept of voluntary subjugation or slavery in international law or in criminal law. The proposed joining of the two territories was to fall under the method prescribed in Resolution 1541(XV) Principle VII, as is highlighted by the desire of the People of the Southern Cameroons to achieve independence while at the same time joining. They could only be in independence within the federation if they preserved their identity, language, could make their own constitution, and so on. It becomes evident that all arguments of unification are falsehood.
Anyone alleging unification or union between the two parties must be able to produce the due legal instruments of such a union. It cannot be also assumed that such an alleged union, supposed to take place between a United Nations Trust territory and a another state (also a member of the United Nations), would occur without a shred of evidence anywhere to testify to it. Events occurring under the United Nations have never been known to be that informal. The United Nations is simply not an informal organisation. The danger of jumping to such a conclusion is that there would be no way to distinguish between a due legal union, with instruments to prove it, and mere colonization and annexation hidden behind fraudulent declarations of a union.
In the present situation between the Southern Cameroons and the Republic of Cameroon, the Republic of Cameroon is hiding behind that loose assumption to deny that it is in fact a colonial power in the Southern Cameroons. If it denies colonization, it must then be alleging union. So what are the terms of the union? It is on this question that the Republic of Cameroon’s argument dies. A union cannot exist without terms, without a clear definition of the rights and obligations of the parties; without, in this case, any limit whatsoever to what the Republic of Cameroon can do within the Southern Cameroons; without any rights whatsoever for the People of the Southern Cameroons, who are not even allowed to question the basis of the relationship. All those who ask this question are jailed, killed, intimidated, or treated in various ways that are only proper to colonization.
In accordance with Principle VII of Resolution 1541(XV), any union would be evidenced by the preservation of the cultural identity of the people of the Southern Cameroons, by the preservation of their language, their system of government and all the other conditions listed in that principle. On the contrary, what we find is an attempt to dissolve the people of the Southern Cameroons without trace, against their will, into the Republic of Cameroons’ own way of life, as a vanquished or captured people. Since colonization lives on violence and violence alone, violence has been the only way in which the nationalists of the Southern Cameroons, demanding their right to self-determination, have been treated.
Neither the post-plebiscite conference called for in Resolution 1608(XV) ever held nor the federation of two states equal in status ever emerged. After adopting Resolution 1608(XV) the United Nations and its Administering Authority abandoned the Southern Cameroons to its fate and never bothered about what happened thereafter. Profiting from this, on 1 September 1961, the National Assembly of Republic of Cameroon adopted what it called a Federal Constitution without even consulting the people of the Southern Cameroons, by which it made the Southern Cameroons a part of its territory! That is, even before the Trust was terminated! This can be nothing else but territorial theft. The Republic of Cameroon assumed total control of the Southern Cameroons without any formality whatsoever, and it is this assumption that it wants the civilized world to call a union!
The true interpretation of the ICJ ruling
It has been observed above that the identity of the Cameroon party was not sufficiently clarified by the Court. If the Cameroon party is treated as the successor state to French Cameroons, then it has no boundary in the Bakassi peninsula, since the territory it inherited had no such boundary with Nigeria in that area. It would also have no locus to speak for the Southern Cameroons or represent its territory. It can only be inferred from its conduct, expressed by its use of Southern Cameroons maps and treaties, and pretension to lay claim to a boundary different from that of the territory it inherited, that it was appearing before the court as an illegal representative of the two Cameroons, namely the Southern Cameroons and the Republic of Cameroon. This is the only view that makes some sense, although it nevertheless still poses the problem of its title over the Southern Cameroons and therefore its right to speak for the Southern Cameroons before an international jurisdiction. Further, this would imply that it is appearing before the court as both successor state to French Cameroons and successor State to British Southern Cameroons, again with no legal proof to show for its succession to British Southern Cameroons.
The conclusion is inevitable that the ruling of the ICJ simply excluded Nigeria from contesting sovereignty over the Bakassi peninsula, leaving the matter to be decided subsequently, perhaps, between the two Cameroons. The vagueness of declaring the peninsula to be “Cameroonian” in the context of two Cameroons, the Southern Cameroons and the Republic of Cameroon, strengthens this conclusion.
However, by following the arguments made by the Cameroon party from paragraph 193 to 324 of the ruling, and which arguments are accepted by the Court, there is no doubt whatsoever to which of the Cameroons the peninsula belongs. All the arguments are that it belongs to the Southern Cameroons. This is confirmed by history and by the fact that in accordance with Article 4(b) of the African Union Constitutive Act, the Republic of Cameroon’s boundaries must be confined to those of French Cameroons, in the absence of any adjustment treaty that conforms to Article 102(1) of the UN Charter.
It follows that the Bakassi case was actually, as far as the boundary in the Bakassi area is concerned, only a delimitation of the boundaries between the Southern Cameroons and Nigeria. There will be no further need to review this boundary when the Republic of Cameroon withdraws its troops and administration from the Southern Cameroons to end its occupation. An independent Southern Cameroons’ boundaries would already be in place, properly defined.
Denis Atemnkeng.
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[1] (Hughes and Lewis p. 229; Richmond p.178)
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