I encourage all to read in its entirety the enclosed opinion on the Nigeria/Cameroon ICJ ruling which also cites some information on the Thailand/Cambodia dispute and ruling.
Legal scholars all agree that court rulings invariably look at precedents and laypersons share the feeling that the courts almost always seek to arrive at a decision where both sides feel they won!
I also noted the point that even when the court rules against a party, there is always left open the option of going to the UN Security Council on the premise of the people’s desire for self-determination!
The question is: Do we want to take the risk, like Nigeria did, that a decision CAN come against us?
Let sober minds prevail!
Carlos G. Santos
Tension in Bakassi after handover
by Ikenna Emewu and Henry Umahi
NIGERIA, Sat. Aug. 16, 2008 (Online Nigeria)– The Nigerian state is in a mournful mood. From the fringe of the Sahara to the Atlantic coastline, a heavy overcoat of gloom hangs in the air. Shock, despair and anguish are etched on the faces of kings and paupers. Indeed, Nigerians are united in grief following the alteration to the shape and/or size of their country. No thanks to the Thursday, October 10, 2002 verdict of the International Court of Justice (ICJ), which declared through its president, Mr. Gilbert Guillaume, a Frenchman, that henceforth the “Sovereignty over Bakassi lies with Cameroon.”
For eight years, Nigeria and her central Africa neighbour, Cameroon, had engaged in legal battles at ICJ, The Hague, over the Bakassi peninsula. The case was one of the longest in the history of the world court. Although the dispute was over the entire boundary between Nigeria and Cameroon, stretching from Lake Chad in the desert to Bakassi on the coast, the oil-rich peninsula was the main bone of contention for obvious reasons. The ruling in the case concerning the land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) was premised essentially on a March 11, 1913 colonial treaty between Britain and Germany.
The court rejected the theory of historical consolidation put forward by Nigeria and accordingly refused to take into account the affectivities relied upon by Nigeria. In the absence of acquiescence by Cameroon, according to the ICJ, these affectivities could not prevail over Cameroon’s conventional titles. Consequently, “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 Cameroonian sovereignty and from the Bakassi Peninsula.”
Nigeria’s gain over Cameroon
However, Nigeria made what could be termed an inconsequential gain at the Lake Chad end. This prompted the court to request “Cameroon expeditiously and without condition to withdraw any administration or military or police forces which may be present along the land boundary from Lake Chad to the Bakassi Peninsula or territories, which, pursuant to the judgment, fall within the sovereignty of Nigeria.”
Indeed, while Nigeria inherited some land from Cameroon in the north, it also got populations of people and communities. In some cases, people moved and land retained. Land and people were taken together in some other cases. Most of the people or population inherited by Nigeria from Cameroon were quartered at some temporal locations in Borno State.
One of such is the Ali Sherifti Settlement located about 44 kilometres in the desert off the Maiduguri-Monguno-Cross Kauwa road. The settlers are fishermen, whom these reporters visited at their new home perched at spots off the residue of the great Lake Chad in recession. While those communities lost and gained in the north between Nigeria and her neighbour never raised any issue, many believe that the handover of Bakassi, in the South, became an issue as a result of the oil embedded underneath.
Another factor is the nature of concrete settlement by the people unlike the nomadic pattern of the communities in the north. Bakassi is actually one of the 774 local government areas in the country; as a result many Nigerians don’t even know there were other places affected by the same judgment and that four years ago some land and communities were handed over silently.
However, the oil issue about Bakassi towards the handover gave way to emotions, and it was no more just about the oil, but the displaced people driven out of their ancestral lands by force.
The Bakassi tragedy
Indeed, the ICJ verdict on Bakassi is, perhaps, the biggest tragedy to assail the most populous black nation in the world. Perhaps, only the 30-month civil war, during which millions of lives perished in the attempt to retain every inch of the territory of Nigeria, could be compared with ceding Bakassi to Cameroon.
Ironically, this slap on the face of Nigeria is, in a way, a fall-out of the unfortunate civil war. Take this: in awarding Bakassi to Cameroon, the court validated the declarations of Yaoundé and Marouna Accord under which former head of state, General Yakubu Gowon, willfully gave away the oil-rich peninsula to Cameroon.
It was, indeed, Gowon’s thank you gift to Cameroon for not supporting the secessionist Biafra Republic while the war lasted. As it turned out, could there be a better way to cut the nose to spite the face? Former president Olusegun Obasanjo made Nigeria’s case more pathetic by completing Gowon’s naivety in September 2002 when he reached a pre-judgment agreement with his Cameroonian counterpart, Mr. Paul Biya, in the presence of then United Nations Secretary General, Mr. Koffi Annan in Paris to the effect that whatever decision of the World Court would be accepted and respected.
Nigeria’s case was irredeemably bungled at the ICJ, even as Obasanjo failed the ultimate test of real leadership when it mattered most. In his characteristic insouciance, Obasanjo led Nigeria into the controversial Green Tree Agreement (GTA) with Cameroon on June 12, 2006, to the effect that from August 14, 2008, Bakassi effectively becomes a Cameroonian territory.
Unfortunately, the National Assembly failed woefully in the exercise of its oversight functions by not calling the Presidency to order. And contrary to the provisions of the constitution, Obasanjo did not submit the GTA to the legislature for ratification.
According to section 12(1) of the 1999 constitution, “No treaty between the federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”
The Ken Nnamani-led Senate had rejected a letter from Obasanjo, dated June 15, 2006, which sought the ratification of the GTA he signed on behalf of the country. The reason, according to the legislature, was that the “letter failed to come through the right channel.”
Living up to his nature as one not favourably disposed to following due process, Obasanjo went ahead to officially cede the disputed area to Cameroon on August 14, 2006.
Thus the nightmare, which began June 10, 2002, became a reality. This proved Obasanjo’s expertise in the art of sophistry, having earlier asserted that no part of Nigeria would be ceded to any other country. Indeed, the surrender of Bakassi was a one-man show. During a recent public hearing on the Bakassi blunder, the Chief of Defence Staff, Gen. Andrew Owoye Azazi, stunned the Senate with the disclosure that Obasanjo did not consult the military authorities pursuant to putting pen on paper.
Burden of map
The Surveyor-General of the Federation, Mr. Austin Njepoume, offered another perspective to the issue, saying that Nigeria lost the area due to the absence of a proper survey map. He told a Senate Committee: “As for the Bakassi case, the Federal Government made a mistake by ceding that part of the country to Cameroon. Nigeria provided the map used by Cameroon to nail the country. Cameroon went to court with a map produced by Nigeria, putting Bakassi Peninsula in Cameroon.
“Many Nigerian government officials made official statements that said Bakassi did not belong to the country, which were all admitted at the International Court of Justice.”
A court in Abuja made a preservative order two weeks earlier restraining President Umar Yar’Adua from handing over Bakassi as agreed to in the Green Tree Agreement years back. But it seems the litigation aspect of the battle took off rather late. If it had been earlier, maybe, there would have been room to commence a complaint to the Security Council, the most powerful organ of the United Nations, which has the power to amend, abrogate or overrule the court or listen and order for plebiscite in Bakassi for the citizens to decide for themselves where to go.
Article 27 of the Vienna Convention on Law of Treaties, 1969 on internal law and observance of treaties says specifically that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”
The ICJ, which gave judgment on the land, is set in place by a treaty — the ICJ Treaty, and Cameroon and Nigeria are signatories as they are to the Convention on Law of Treaties, which are both in force. We have to also bear in mind that the implementation of the decision of ICJ between Nigeria and Cameroon did not start today. Over four years now, Nigeria received some territories up north and communities from Cameroon as mentioned earlier. Bola Ajibola, who seems to engage in double speak now over Bakassi ownership, was in the presidential delegation that received the communities.
So, it would have been totally improper and illegal for the nation to renege in handing over Bakassi. It started yielding to the obligation of the UN through the ICJ from admitting the jurisdiction of the court, albeit in error, as admitted by Prof. Itse Sagay, who posited that Cameroon at the time of commencing processes at the ICJ against Nigeria had not become a signatory.
A little look at International Law will be proper to understand the position of Yar’Adua to hand over Bakassi. Since the judgment is already delivered, it would be a weak move to obtain court order here to stop Nigeria living up to its international obligation under the law. It would be against the spirit of Article 27 of the Convention on Treaties. In 1932, the PCIJ, as ICJ was then known, stopped France from legislating out of its international obligation to Switzerland.
The decision in the Free Zones of Upper Savoy and the District of Gex Case floored France. The country had, through its municipal law, moved to thwart the force of the Vienna Treaty of 1815 in which it and Switzerland were parties. That agreement left the Upper Savoy and District of Gex as custom-free zones where goods emanating from or passing through would not be subject to custom duty.
That was compensation to Switzerland for accepting to accede to perpetual international neutrality. France later made a law to void this, but the world court said it was illegal.
Another good example that looks like the Nigerian case is the Temple of Preah Vihear Case decided by the ICJ in June 1962. Thailand sued Cambodia over ownership of the temple, which was at the border.
But the court awarded the temple to Cambodia.
One instructive point in this case is that after colonial governments of Siam and France agreed on boundary delineation that would place the temple in Thailand according to traditional and historic rights, the opposite was done, as the temple fell in the territory of Cambodia. While being privy to the content of the map and allocation of the temple, Thailand kept quiet while Cambodia enjoyed possession for over 50 years before it woke up to ask for re-possession.
On grounds of sleeping over its supposed rights of ownership, Thailand lost the temple till date. For now, it would be accepted in good faith that Bakassi is gone to Cameroon and not much from the legal point would be done.
Rather, what should be taken into consideration is an adequate effort of the government to forestall a breakdown of law and order that would result in unnecessary bellicosity between the two countries as the gendarmes and militants stalk each other.
Court in the mix
It appeared there was an undue haste to cede Bakassi. Even the issues involved were not thoroughly trashed out. Tito Okoye captures it like this: “Nigeria remains the only country in the world I know of that is in a sickening haste to cede part of its territory to another nation.” On Thursday, July 31, 2008, a Federal High Court sitting in Abuja restrained the Federal Government from ceding Bakassi, adjourning the case till October 20. Making the order, Justice Mohammed Umar said: “The justice of this case is that parties to this suit should maintain the status quo, so that the substance will not be destroyed.”
He explained: “The res is Southern Bakassi, which is to be ceded by the defendants on August 14. It is hereby ordered that parties should maintain the status quo and should not take any step pending the hearing of all applications”.
Some Bakassi natives, led by two former chairmen of Bakassi LGA, Chief Emmanuel Etene and Mr. Ani Esin, filed the suit. They were seeking N456 billion as compensation before the handover could take place.
However, the judicial order elicited controversies. For a government that chants the mantra of rule of law and due process, the development was seen as a challenge.
But in a swift reaction, government averred that the Bakassi issue was a done deal. Verbally and through body language, President Umar Yar’Adua’s position on the issue was not ceded.
“There is no going back on the issue of Bakassi. We must ensure that the August 14 handover goes ahead in accordance with the Green Tree Accord,” Yar’Adua had affirmed. His position was that Nigeria would appear irresponsible in the eyes of the international community if the country did not adhere to the ruling of the ICJ.
Also, Mr. Bassey You. Bassey, Deputy Director of Civil Litigation in Cross River State, a co-defendant in the high court suit, had told reporters, after the ruling: “This order is not capable of being obeyed because this court cannot sit as an appellate court on the judgment of the International Court of Justice.”
The Attorney General of the Federation, Chief Michael Aondoakaa, also echoed a similar view. According to him, the court order on Bakassi cannot be binding on the Federal Government, adding: “We know that we are bound by the judgment of the ICJ.”
Opinions are divided on the decision of the government. While some contend that Yar’Adua should be charged for contempt of court, others argue that the president had no choice.
However, Prof. Bola Akinterinwa, research fellow at the Nigerian Institute of International Affairs (NIIA), submitted that the matter had not really ended. He said: “You can go to the International Court of Justice (ICJ) and say you accept jurisdiction, fine, but now that the people are saying they don’t want to be Cameroonians, what do you do? They must be listened to, because that is the principle of self determinations.”
Battle line drawn
The battle line has been drawn. Or so it seems. The implications of ceding Bakassi to Cameroon are far reaching. Having succumbed to a combination of an international conspiracy and the Obasanjo mess, as it were, the situation paints an undeniably grave portrait in several respects.
On the front burner is the country’s security. Senator Bassey Ewa-Henshaw, representing Cross River South Senatorial district, under which the people of Bakassi belong, raised salient points in a letter to the presidency, dated August 1, 2008 and entitled, “Bakassi: Before You Handover.”
He remarked that the military high command had “raised alarm that this agreement severely and fundamentally undermines the security of our country. It precludes Nigerian vessels from using the channel, which provides access from the open sea into Calabar. So the Eastern Naval Command based in Calabar may as well be closed down leaving the entire eastern flank of the country unprotected.”
The grave consequences for Nigeria are that in the event of external aggression, the country would seek the permission of Cameroon to navigate the water in self-defence. The Senator lamented: “it is hard to imagine that anyone who loves Nigeria will insist that we go ahead to implement the Green Tree Agreement, as it is, in spite of the dangerous security implication which our military highlighted.”
The movement for the Emancipation of the Niger Delta (MEND) had also warned the Federal Government against ceding Bakassi Peninsula to Cameroon, threatening to take appropriate action if the authorities go ahead with the agreement.
Last month, there were reports of militants drawing first blood in their vaunted bid to make possession of the peninsula unbearable for Cameroon. The report said militants from South South, who see the move to take over Bakassi as victimization of the zone, hit Cameroon gendarmes and wounded about four soldiers, out of which one later died.
The Cameroon soldiers also boasted they wasted 10 of the militants in the showdown. Now that the deed has been done and considering the firepower and make-up of MEND, Bakassi may likely be on the boil. In the event of the military group carrying out their threat to attack Cameroonian gendarmes if they set foot on Bakassi, the central Africa country may be compelled to hit back at Nigeria even though the militants are also waging a sort of guerrilla warfare against Nigerian interests.
Should that happen, Nigeria would not fold its arms. With France lurking in the shadows, the implication is better imagined. Until now, it was common to hear of Cameroon security agency attacks and random slaughter of Nigerians in the region, and we were always told that Nigeria never retaliated.
But in Cameroon, at the same period, they had reports that Nigerian forces kill their citizens, a tension that resulted in the arrest and detention of civilians on their legal business caught in the crossfire. The trend of military and violent attacks as well as kidnaps in the zone raise some worries on how volatile the relationship between the two countries would be in the post-Bakassi cession days.
This week, some returnees from Bakassi narrated the ugly stories of the inhuman treatment they got in the hands of Cameroon soldiers. Some were reportedly killed, others tortured and the rest had their property looted as women were also raped. The Federal Government had deployed a detachment of soldiers to the area.
The question is, how long would Nigerian soldiers stay along the new borders? Coming at a time militants are also attacking Nigerian forces, analysts say that the presence of the soldiers would not guarantee security. This is even more so since the militants know the terrain in the creek and, as they have been doing in the South South, against Nigerian soldiers, would employ guerilla warfare against Cameroonian gendarmes.
Cameroon, on the other hand, has not pretended that it is ready for war, in the defence of their new territory. By mid-week, the central African country had shut its borders, declaring that Nigerians in the ceded Bakassi, before the closure of the border, would not be allowed to cross over, while those on the Nigerian side of the divide would not be allowed to enter into Cameroon.
To show that it was not joking about protecting their territorial integrity, Cameroonian soldiers were said to have shot sporadically, while parading the waterway, threatening to shoot-on-sight any Nigerian who dared come close.
Such a trigger-happy attitude had brought Cameroon and Nigeria close to war, in the early 1980s, when gendarmes killed more than 10 Nigerian soldiers. At that time, common sense had prevailed, despite the bitterness in the hearts of Nigerians, when then President Shehu Shagari opted for peaceful settlement.
The ill-fated soldiers were buried, without reprisal attack from Nigeria.
Although Army Chief says they have been barred from speaking on Bakassi, they said that Nigerian soldiers officially ruled out of Bakassi in 2006.
Defence spokesman, Navy Captain Senebi Hungi-Apulco, on the other hand, said that soldiers had been deployed to the Nigerian side of the border. He said that the Navy is also patrolling the Nigerian waterway in the area.
Did somebody ask who is to blame? I hope you find the answer here.
Carlos G. Santos