11 June 1998

 

General List No. 94

 
     

international Court of Justice

     
 

Land and Maritime Boundary between Cameroon and Nigeria

 
     

Cameroon

 

v. 

Nigeria

     
     
 

Judgment

 
     
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BEFORE:

President: Schwebel;
Vice-President: Weeramantry;
Judges: Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek;
Judges ad hoc: Mbaye, Ajibola

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1998.06.11_boundary.htm
   
Citation: Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.), 1998 I.C.J. 275 (June 11)
   
Represented By: Cameroon: H.E. Mr. Laurent Esso, Minister of Justice, Keeper of the Seals,
as Agent;
Mr. Douala Moutome, Member of the Cameroon Bar, former Minister,
Mr. Maurice Kamto, Professor, University of Yaounde II, Member of the Paris Bar;
Mr. Peter Ntamark, Dean, Professor of Law, Faculty of Law and Political Science, University of Yaounde II, Barrister-at-Law, member of the Inner Temple, as Co-Agents;
H.E. Mr. Joseph Owona, Minister of Youth and Sport;
Mr. Joseph-Marie Bipoun Woum, Professor, University of Yaounde II, former Minister, as Special Advisers;
Mr. Alain Pellet, Professor, University of Paris X-Nanterre and Institute of Political Studies, Paris, as Deputy-Agent, Counsel and Advocate;
Mr. Michel Aurillac, avocat a la cour, Honorary Member of the Council of State, former Minister;
Mr. Jean-Pierre Cot, Professor, University of Paris 1 (Pantheon-Sorbonne), Vice-President of the European Parliament, Member of the Paris and Brussels Bars, former Minister;
Mr. Keith Highet, Counsellor in International Law, Vice-Chairman, Inter-American Juridical Committee, Organization of American States;
Mr. Malcolm N. Shaw, Barrister-at-Law, Sir Robert Jennings Professor of International Law, Faculty of Law, University of Leicester;
Mr. Bruno Simma, Professor, University of Munich;
Sir Ian Sinclair, K.C.M.G., Q.C., Barrister-at-Law;
Mr. Christian Tomuschat, Professor, University of Berlin, as Counsel and Advocates;
H.E. Mr. Pascal Biloa Tang, Ambassador of Cameroon to France;
H.E. Mrs. Isabelle Bassong, Ambassador of Cameroon to the Benelux Countries;
H.E. Mr. Martin Belinga Eboutou, Ambassador, Permanent Representative of Cameroon to the United Nations;
Lieutenant General Pierre Semengue, Chief of Staff of the Armed Forces;
Mr. Robert Akamba, Principal Civil Administrator, charge de mission, Secretariat of the Presidency of the Republic;
Mr. Etienne Ateba, Minister-Counsellor, Charge d'affaires a.i. at the Embassy of Cameroon, The Hague;
Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, Member of the National Boundary Commission of Cameroon;
Mr. Ngolle Philip Ngwesse, Director at the Ministry of Territorial Administration;
Mr. Thomas Fozein Kwanke, Counsellor in Foreign Affairs, Deputy Director at the Ministry of Foreign Relations;
Mr. Jean Gateaud, ingenieur general geographe;
Mr. Bienvenu Obelabout, Director, Central Administration, General Secretariat of the Presidency of the Republic;
Mr. Marc Sassen, Advocate and Legal Adviser, The Hague;
Mr. Joseph Tjop, Consultant at Mignard, Teitgen, Grisoni and Associates, Senior Teaching and Research Assistant, University of Paris X-Nanterre;
Mr. Songola Oudini, Director, Central Administration, General Secretariat of the Presidency of the Republic, as Advisers;
Mrs. Florence Kollo, Principal Translator-Interpreter, as Translator-Interpreter;
Mr. Pierre Bodeau, Teaching and Research Assistant, University of Paris X-Nanterre;
Mr. Olivier Corten, Senior Lecturer, Faculty of Law, Universite libre de Bruxelles;
Mr. Daniel Khan, Assistant, University of Munich;
Mr. Jean-Marc Thouvenin, Senior Lecturer, University of Maine, and Institute of Political Studies, Paris, as Research Assistants;
Mr. Guy Roger Eba'a;
Mr. Daniel Nfan Bile, as Communications Specialists;
Mrs. Rene Bakker;
Mrs. Florence Jovis;
Mrs. Mireille Jung, as secretaries;

Nigeria: H.E. the Honourable Alhaji Abdullahi Ibrahim, OFR, SAN, Attorney-General of the Federation and Minister of Justice, as Agent;
Chief Richard Akinjide, SAN, FCIArb, former Minister, Member of the English and Gambian Bars, as Co-Agent;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Chichele Professor of Public International Law, University of Oxford, Member of the International Law Commission, Member of the English Bar;
Sir Arthur Watts, K.C.M.G., Q.C., Member of the English Bar;
Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge, Member of the International Law Commission, Member of the Australian Bar, as Counsel and Advocates;
Mr. Timothy H. Daniel, Partner, D. J. Freeman of the City of London;
Mr. Alan Perry, Partner, D. J. Freeman of the City of London;
Mr. David Lerer, Solicitor, D. J. Freeman of the City of London;
Mr. Christopher Hackford, Solicitor, D. J. Freeman of the City of London;
Ms Louise Cox, trainee Solicitor, D. J. Freeman of the City of London,
as Solicitors;
Mr. A. H. Yadudu, Professor, Special Adviser to the Head of State on Legal Matters;
Mr. A. Oye Cukwurah, Professor, National Boundary Commission, Abuja;
Mr. I. A. Ayua, Professor, Director-General, NIALS;
Brigadier General L. S. Ajiborisha, Director of Operations, DHQ;
Mrs. Stella Omiyi, Director, International and Comparative Law Department, Federal Ministry of Justice;
Mr. K. Mohammed, Director of Research and Analysis, the Presidency;
Mr. Jalal A. Arabi, Legal Adviser to the Secretary to the Government of the Federation;
Mr. M. M. Kida, Assistant Director, Ministry of Foreign Affairs,
Mr. Alhaji A. A. Adisa, Deputy Surveyor-General of the Federation, Abuja;
Mr. P. M. Mann, Charge d'affaires, Embassy of Nigeria, The Hague;
Mrs. V. Okwecheme, Counsellor, Embassy of Nigeria, The Hague;
Mr. Amuzuei, Counsellor, Embassy of Nigeria, The Hague;
Mr. Clive Schofield, Cartographer, International Boundaries Research Unit, Durham University;
Mr. Arthur Corner, Cartographer, Durham University;
Ms Michelle Burgoine, Information Technology Assistant, as Advisers;
Mrs. Coralie Ayad, D. J. Freeman of the City of London, as secretary.

 
     
 
 
     
 


[p.275]

THE COURT,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 29 March 1994, the Government of the Republic of Cameroon (hereinafter called "Cameroon") filed in the Registry of the Court an Application instituting proceedings against the Government of the Federal Republic of Nigeria (hereinafter called "Nigeria") in respect of a dispute described as "relating essentially to the question of sovereignty over the Bakassi Peninsula". Cameroon further stated in its Application that the "delimitation [of the maritime boundary between the two States] has remained a partial one and [that], despite many attempts to complete it, the two parties have been unable to do so". It accordingly requested the Court, "in order to avoid further incidents between the two countries, . . . to determine the course of the maritime boundary between the two States beyond the line fixed in 1975". In order to found the jurisdiction of the Court, the Application relied on the declarations made by the two Parties accepting the jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was immediately communicated to the Government of Nigeria by the Registrar.

3. On 6 June 1994, Cameroon filed in the Registry an Additional Application "for the purpose of extending the subject of the dispute" to a further dispute described in that Additional Application as "relating essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad". Cameroon also requested the Court, in its Additional Application, "to specify definitively" the frontier between the two States from Lake Chad to the sea, and asked it to join the two Applications and "to examine the whole in a single case". In order to found the jurisdiction of the Court, the Additional Application referred to the "basis of . . . jurisdiction . . . already . . . indicated" in the Application instituting proceedings of 29 March 1994.

4. On 7 June 1994, the Registrar communicated the Additional Application to the Government of Nigeria.

5. At a meeting which the President of the Court held with the representatives of the Parties on 14 June 1994, the Agent of Nigeria stated that he had no objection to the Additional Application being treated, in accordance with the wish expressed by Cameroon, as an amendment to the initial Application, so that the Court could deal with the whole in a single case. By an Order dated 16 June 1994, the Court indicated that it had no objection itself to such a procedure, and fixed 16 March 1995 and 18 December 1995, respectively, as the [p 280] time-limits for the filing of the Memorial of Cameroon and the Counter-Memorial of Nigeria.

6. Pursuant to Article 40, paragraph 3, of the Statute, all States entitled to appear before the Court were notified of the Application.

7. Cameroon duly filed its Memorial within the time-limit prescribed in the Court's Order dated 16 June 1994.

8. Within the time-limit fixed for the filing of its Counter-Memorial, Nigeria filed preliminary objections to the jurisdiction of the Court and the admissibility of the Application. Accordingly, by an Order dated 10 January 1996, the President of the Court, noting that, under Article 79, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended, fixed 15 May 1996 as the time-limit within which Cameroon might present a written statement of its observations and submissions on the preliminary objections.

Cameroon filed such a statement within the time-limit so prescribed, and the case became ready for hearing in respect of the preliminary objections.

9. Since the Court included upon the Bench no judge of the nationality of the Parties, each Party exercised its right under Article 31, paragraph 3, of the Statute of the Court to choose a judge ad hoc to sit in the case: Cameroon chose Mr. Keba Mbaye, and Nigeria chose Mr. Bola Ajibola.

10. By a letter dated 10 February 1996 and received in the Registry on 12 February 1996, Cameroon submitted a request for the indication of provisional measures under Article 41 of the Statute. By an Order dated 15 March 1996, the Court, after hearing the Parties, indicated certain provisional measures.

11. By various communications, Cameroon stressed the importance of a speedy disposal of the case; it also filed, under cover of a letter dated 9 April 1997, a document with annexes entitled "Memorandum of the Republic of Cameroon on procedure". Nigeria made known its views on the latter communication in a letter dated 13 May 1997.

12. By a letter dated 2 February 1998, Nigeria sought to introduce a volume of documents entitled "Supplemental Documents (Lake Chad Basin Commission Proceedings)". By a letter dated 16 February 1998, the Agent of Cameroon indicated that Cameroon did not oppose their introduction. The Court admitted the said documents pursuant to Article 56, paragraph 1, of the Rules of Court.

13. By a letter dated 11 February 1998, the Agent of Cameroon sought to introduce certain "new documents relating to events occurring since the filing of the Memorial" of Cameroon, and "moreover requested the Court to consider the annexes to the [Memorandum of April 1997] as an integral part of the proceedings". Having considered the views expressed by Nigeria in its above-mentioned letter of 13 May 1997 (see paragraph 11 above) and in its letter of 24 February 1998, the Court admitted the documents pursuant to the provisions of Article 56 of its Rules.

14. In accordance with Article 53, paragraph 2, of its Rules, the Court decided to make accessible to the public, on the opening of the oral proceedings, the preliminary objections of Nigeria and the written statement containing the observations and submissions of Cameroon on the objections, as well as the documents annexed to those pleadings. [p 281]

15. Public sittings were held between 2 March and 11 March 1998, at which the Court heard the oral arguments and replies of:

For Nigeria: H.E. the Honourable Alhaji Abdullahi Ibrahim,
Mr. Richard Akinjide,
Mr. Ian Brownlie,
Sir Arthur Watts,
Mr. James Crawford.

For Cameroon: H.E. Mr. Laurent Esso,
Mr. Douala Moutome
Mr. Maurice Kamto,
Mr. Peter Ntamark,
Mr. Joseph-Marie Bipoun Woum,
Mr. Alain Pellet,
Mr. Michel Aurillac,
Mr. Jean-Pierre Cot,
Mr. Keith Highet,
Mr. Malcolm N. Shaw,
Mr. Bruno Simma,
Sir Ian Sinclair,
Mr. Christian Tomuschat.


At the hearings, a Member of the Court put a question to the Parties, who answered in writing after the close of the oral proceedings.

*

16. In its Application, Cameroon made the following requests:


"On the basis of the foregoing statement of facts and legal grounds, the Republic of Cameroon, while reserving for itself the right to complement, amend or modify the present Application in the course of the proceedings and to submit to the Court a request for the indication of provisional measures should they prove to be necessary, asks the Court to adjudge and declare:


(a) that sovereignty over the Peninsula of Bakassi is Cameroonian, by virtue of international law, and that that Peninsula is an integral part of the territory of Cameroon;

(b) that the Federal Republic of Nigeria has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris);

(c) that by using force against the Republic of Cameroon, the Federal Republic of Nigeria has violated and is violating its obligations under international treaty law and customary law;

(d) that the Federal Republic of Nigeria, by militarily occupying the Cameroonian Peninsula of Bakassi, has violated and is violating the obligations incumbent upon it by virtue of treaty law and customary law;

(e) that in view of these breaches of legal obligation, mentioned above, the Federal Republic of Nigeria has the express duty of putting an end to its military presence in Cameroonian territory, and effecting an immediate and unconditional withdrawal of its troops from the Cameroonian Peninsula of Bakassi; [p 282]

(e') that the internationally unlawful acts referred to under (a), (b), (c), (d) and (e) above involve the responsibility of the Federal Republic of Nigeria;

(e") that, consequently, and on account of the material and non-material damage inflicted upon the Republic of Cameroon, reparation in an amount to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon, which reserves the introduction before the Court of a precise assessment of the damage caused by the Federal Republic of Nigeria.

(f) In order to prevent any dispute arising between the two States concerning their maritime boundary, the Republic of Cameroon requests the Court to proceed to prolong the course of its maritime boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions."


17. In its Additional Application, Cameroon made the following requests:


"On the basis of the foregoing statement of facts and legal grounds, and subject to the reservations expressed in paragraph 20 of its Application of 29 March 1994, the Republic of Cameroon asks the Court to adjudge and declare:

(a) that sovereignty over the disputed parcel in the area of Lake Chad is Cameroonian, by virtue of international law, and that that parcel is an integral part of the territory of Cameroon;

(b) that the Federal Republic of Nigeria has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris), and its recent legal commitments concerning the demarcation of frontiers in Lake Chad;

(c) that the Federal Republic of Nigeria, by occupying, with the support of its security forces, parcels of Cameroonian territory in the area of Lake Chad, has violated and is violating its obligations under treaty law and customary law;

(d) that in view of these legal obligations, mentioned above, the Federal Republic of Nigeria has the express duty of effecting an immediate and unconditional withdrawal of its troops from Cameroonian territory in the area of Lake Chad;

(e) that the internationally unlawful acts referred to under (a), (b), (c) and (d) above involve the responsibility of the Federal Republic of Nigeria;

(e') that consequently, and on account of the material and non-material damage inflicted upon the Republic of Cameroon, reparation in an amount to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon, which reserves the introduction before the Court of a precise assessment of the damage caused by the Federal Republic of Nigeria.

(f) That in view of the repeated incursions of Nigerian groups and armed forces into Cameroonian territory, all along the frontier between the two countries, the consequent grave and repeated incidents, and the vacillating and contradictory attitude of the Federal Republic of Nigeria in regard to the legal instruments defining the [p 283] frontier between the two countries and the exact course of that frontier, the Republic of Cameroon respectfully asks the Court to specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea."

18. In the written proceedings, the Parties presented the following submissions:

On behalf of the Government of Cameroon,

in the Memorial:

"The Republic of Cameroon has the honour to request that the Court be pleased to adjudge and declare:

(a) That the lake and land boundary between Cameroon and Nigeria takes the following course:

-- from the point at longitude 14 [degree] 04' 59" 9999 E of Greenwich and latitude 13 [degree] 05' 00" 0001 N, it then runs through the point located at longitude 14 [degree] 12' 11" 7 E and latitude 12 [degree] 32' 17" 4 N;

-- thence it follows the course fixed by the Franco-British Declaration of 10 July 1919, as specified in paragraphs 3 to 60 of the Thomson-Marchand Declaration, confirmed by the Exchange of Letters of 9 January 1931, as far as the 'very prominent peak' described in the latter provision and called by the usual name of 'Mount Kombon';

-- from Mount Kombon the boundary then runs to 'Pillar 64' mentioned in paragraph 12 of the Anglo-German Agreement of Obokum of 12 April 1913 and follows, in that sector, the course described in Section 6 (1) of the British Nigeria (Protectorate and Cameroons) Order in Council of 2 August 1946;

-- from Pillar 64 it follows the course described in paragraphs 13 to 21 of the Obokum Agreement of 12 April 1913 as far as Pillar 114 on the Cross River;

-- thence, as far as the intersection of the straight line joining Bakassi Point to King Point and the centre of the navigable channel of the Akwayafe, the boundary is determined by paragraphs 16 to
21 of the Anglo-German Agreement of 11 March 1913.

(b) That notably, therefore, sovereignty over the Peninsula of Bakassi and over the disputed parcel occupied by Nigeria in the area of Lake Chad, in particular over Darak and its region, is Cameroonian.

(c) That the boundary of the maritime zones appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria follows the following course:

-- from the intersection of the straight line joining Bakassi Point to King Point and the centre of the navigable channel of the Akwayafe to 'point 12', that boundary is determined by the 'compromise line' entered on British Admiralty Chart No. 3343 by the Heads of State of the two countries on 4 April 1971 (Yaounde Declaration) and, from that 'point 12' to 'point G', by the Declaration signed at Maroua on 1 June 1975; [p 284]

-- from point G that boundary then swings south-westward in the direction which is indicated by points G, H, I, J and K represented on the sketch-map on page 556 of this Memorial and meets the requirement for an equitable solution, up to the outer limit of the maritime zones which international law places under the respective jurisdictions of the two Parties.

(d) That by contesting the courses of the boundary defined above under (a) and (c), the Federal Republic of Nigeria has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris) and its legal commitments concerning the demarcation of frontiers in Lake Chad and land and maritime delimitation.

(e) That by using force against the Republic of Cameroon and, in particular, by militarily occupying parcels of Cameroonian territory in the area of Lake Chad and the Cameroonian Peninsula of Bakassi, and by making repeated incursions, both civilian and military, all along the boundary between the two countries, the Federal Republic of Nigeria has violated and is violating its obligations under international treaty law and customary law.

(f) That the Federal Republic of Nigeria has the express duty of putting an end to its civilian and military presence in Cameroonian territory and, in particular, of effecting an immediate and unconditional withdrawal of its troops from the occupied area of Lake Chad and from the Cameroonian Peninsula of Bakassi and of refraining from such acts in the future.

(g) That the internationally wrongful acts referred to above and described in detail in the body of this Memorial involve the responsibility of the Federal Republic of Nigeria.

(h) That, consequently, and on account of the material and non-material damage inflicted upon the Republic of Cameroon, reparation in a form to be determined by the Court is due from the Federal Republic of Nigeria to the Republic of Cameroon.

The Republic of Cameroon further has the honour to request the Court to permit it to present an assessment of the amount of compensation due to it as reparation for the damage it has suffered as a result of the internationally wrongful acts attributable to the Federal Republic of Nigeria, at a subsequent stage of the proceedings.

These submissions are lodged subject to any points of fact and law and any evidence that may subsequently be lodged; the Republic of Cameroon reserves the right to complete or amend them, as necessary, in accordance with the Statute and the Rules of Court."

On behalf of the Government of Nigeria,

in the preliminary objections:

First preliminary objection:

"(1) that Cameroon, by lodging the Application on 29 March 1994, violated its obligations to act in good faith, acted in abuse of the system established by Article 36, [p 285] paragraph 2, of the Statute, and disregarded the requirement of reciprocity established by Article 36, paragraph 2, of the Statute and the terms of Nigeria's Declaration of 3 September 1965;

(2) that consequently the conditions necessary to entitle Cameroon to invoke its Declaration under Article 36, paragraph 2, as a basis for the Court's jurisdiction did not exist when the Application was lodged; and

(3) that accordingly, the Court is without jurisdiction to entertain the Application."

Second preliminary objection:

"For a period of at least 24 years prior to the filing of the Application the Parties have in their regular dealings accepted a duty to settle all boundary questions through the existing bilateral machinery.

(1) This course of joint conduct constitutes an implied agreement to resort exclusively to the existing bilateral machinery and not to invoke the jurisdiction of the Court.

(2)In the alternative, in the circumstances the Republic of Cameroon is estopped from invoking the jurisdiction of the Court."

Third preliminary objection:

"Without prejudice to the second preliminary objection, the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission, and in this context the procedures of settlement within the Lake Chad Basin Commission are obligatory for the Parties.

The operation of the dispute settlement procedures of the Lake Chad Basin Commission involved the necessary implication, for the relations of Nigeria and Cameroon inter se, that the jurisdiction of the Court by virtue of Article 36, paragraph 2, would not be invoked in relation to matters within the exclusive competence of the Commission."

Fourth preliminary objection:

"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 the Lake."

Fifth preliminary objection:

"(1) In the submission of Nigeria 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, and in particular:

(a) there is no dispute in respect of the boundary delimitation as such within Lake Chad, subject to the question of title to Darak and adjacent islands inhabited by Nigerians;

(b) there is no dispute relating to the boundary delimitation as such from the tripoint in Lake Chad to Mount Kombon;

(c) there is no dispute relating to the boundary delimitation as such between Boundary Pillar 64 on the Gamana River and Mount Kombon; and

(d) there is no dispute relating to the boundary delimitation as such between Pillar 64 on the Gamana River and the sea. [p 286]

(2) This preliminary objection is without prejudice to the title of Nigeria over the Bakassi Peninsula."

Sixth preliminary objection:

"(1) that the Application (and so far as relevant, Amendment and Memorial) filed by Cameroon does not meet the required standard of adequacy as to the facts on which it is based, including the dates, circumstances and precise locations of the alleged incursions and incidents by Nigerian State organs;

(2) that those deficiencies make it impossible

(a) for Nigeria to have the knowledge to which it is entitled of the circumstances which are said by Cameroon to result in Nigeria's international responsibility and consequential obligation to make reparation; and

(b) for the Court to carry out a fair and effective judicial examination of, or make a judicial determination on, the issues of State responsibility and reparation raised by Cameroon; and

(3) that accordingly all the issues of State responsibility and reparation raised by Cameroon in this context should be declared inadmissible."

Seventh preliminary objection:

"There is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court, for the following reasons:

(1) no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula;

(2) at the juncture where there is a determination of the question of title over the Bakassi Peninsula, the issues of maritime delimitation will not be admissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law'."

Eighth preliminary objection:


"The question of maritime delimitation necessarily involves the rights and interests of third States and is inadmissible."

Concluding submissions:

"For the reasons advanced, the Federal Republic of Nigeria requests the Court to adjudge and declare that:

it lacks jurisdiction over the claims brought against the Federal Republic of Nigeria by the Republic of Cameroon;

and/or

the claims brought against the Federal Republic of Nigeria by the Republic of Cameroon are inadmissible to the extent specified in these preliminary objections."

On behalf of the Government of Cameroon,

in the written statement containing its observations on the preliminary objections: [p 287]

"For the reasons given . . ., the Republic of Cameroon requests the International Court of Justice:

(1) to dismiss the preliminary objections raised by the Federal Republic of Nigeria;

(2) to find that, by its formal declarations, Nigeria has accepted the jurisdiction of the Court;

(3) to adjudge and declare:

-- that it has jurisdiction to decide on the Application filed by Cameroon on 29 March 1994 as supplemented by the additional Application of 6 June 1994; and

-- that the Application, thus consolidated, is admissible;

(4) having due regard to the particular nature of the case, which relates to a dispute concerning the territorial sovereignty of Cameroon and is creating serious tensions between the two countries, to fix time-limits for the further proceedings which will enable the Court to proceed to the merits at the earliest possible time."

19. In the oral proceedings, the Parties presented the following submissions:

On behalf of the Government of Nigeria,

at the hearing on 9 March 1998:


"For the reasons that have been stated either in writing or orally, Nigeria submits:

First preliminary objection

1.1. That Cameroon, by lodging the Application on 29 March 1994, violated its obligations to act in good faith, acted in abuse of the system established by Article 36, paragraph 2, of the Statute, and disregarded the requirement of reciprocity established by Article 36, paragraph 2, of the Statute and the terms of Nigeria's Declaration of 3 September 1965;

1.2. that consequently the conditions necessary to entitle Cameroon to invoke its Declaration under Article 36, paragraph 2, as a basis for the Court's jurisdiction did not exist when the Application was lodged;

1.3. that accordingly, the Court is without jurisdiction to entertain the Application.

Second preliminary objection

2.1. That for a period of at least 24 years prior to the filing of the Application, the Parties have in their regular dealings accepted a duty to settle all boundary questions through the existing bilateral machinery;

2.1.1.that this course of joint conduct constitutes an implied agreement to resort exclusively to the existing bilateral machinery and not to invoke the jurisdiction of the Court;

2.1.2.that in the alternative, in the circumstances the Republic of Cameroon is estopped from invoking the jurisdiction of the Court.

Third preliminary objection

3.1. That without prejudice to the second preliminary objection, [p 288] the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission, and in this context the procedures of settlement within the Lake Chad Basin Commission are obligatory for the Parties;

3.2. that the operation of the dispute settlement procedures of the Lake Chad Basin Commission involved the necessary implication, for the relations of Nigeria and Cameroon inter se, that the jurisdiction of the Court by virtue of Article 36, paragraph 2, would not be invoked in relation to matters within the exclusive competence of the Commission.

Fourth preliminary objection


4.1. 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 the Lake.

Fifth preliminary objection

5.1. That, without prejudice to the title of Nigeria over the Bakassi Peninsula, 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, and in particular:

(a) there is no dispute in respect of the boundary delimitation as such within Lake Chad, subject to the question of title to Darak and adjacent islands inhabited by Nigerians;

(b) there is no dispute relating to the boundary delimitation as such from the tripoint in Lake Chad to Mount Kombon;

(c) there is no dispute relating to the boundary delimitation as such between boundary pillar 64 on the Gamana River and Mount Kombon; and

(d) there is no dispute relating to the boundary delimitation as such between pillar 64 on the Gamana River and the sea.

Sixth preliminary objection

6.1. That the Application (and so far as permissible, subsequent pleadings) filed by Cameroon does not meet the required standard of adequacy as to the facts on which it is based, including the dates, circumstances and precise locations of the alleged incursions and incidents by Nigerian State organs;

6.2. that those deficiencies make it impossible

(a) for Nigeria to have the knowledge to which it is entitled of the circumstances which are said by Cameroon to result in Nigeria's international responsibility and consequential obligation to make reparation; and

(b) for the Court to carry out a fair and effective judicial examination of, or make a judicial determination on, the issues of State responsibility and reparation raised by Cameroon;

6.3. that accordingly all the issues of State responsibility and reparation raised by Cameroon in this context should be declared inadmissible;

6.4. that, without prejudice to the foregoing, any allegations by Cameroon as to State responsibility or reparation on the part of Nigeria in [p 289] respect of matters referred to in paragraph 17 (f) of Cameroon's amending Application of 6 June 1994 are inadmissible.


Seventh preliminary objection

7.1. That there is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court, for the following reasons:

(1) no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula;

(2) in any event, the issues of maritime delimitation are inadmissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law'.

Eighth preliminary objection

8.1. That the question of maritime delimitation necessarily involves the rights and interests of third States and is inadmissible beyond point G.

Accordingly, Nigeria formally requests the Court to adjudge and declare that:


(1) it lacks jurisdiction over the claims brought against the Federal Republic of Nigeria by the Republic of Cameroon; and/or

(2) the claims brought against the Federal Republic of Nigeria by the Republic of Cameroon are inadmissible to the extent specified in the preliminary objections."

On behalf of the Government of Cameroon,

at the hearing on 11 March 1998:

"For the reasons developed in the written pleadings and in the oral proceedings, the Republic of Cameroon requests the International Court of Justice:

(a) to dismiss the preliminary objections raised by the Federal Republic of Nigeria;

(b) completely in the alternative, to join to the merits, as appropriate, such of those objections as it may deem not to be of an exclusively preliminary character;

(c) to adjudge and declare: that it has jurisdiction to decide on the Application filed by Cameroon on 29 March 1994 as supplemented by the Additional Application of 6 June 1994; and that the Application, thus consolidated, is admissible;

(d) having due regard to the particular nature of the case, to fix time-limits for the further proceedings which will permit examination of the merits of the dispute at the earliest possible time."

***

20. The Court will successively examine the eight preliminary objections raised by Nigeria.[p 290]

First Preliminary Objection

21. The first objection contends that the Court has no jurisdiction to entertain Cameroon's Application.

22. In this regard, Nigeria notes that it had accepted the Court's compulsory jurisdiction by a declaration dated 14 August 1965, deposited with the Secretary-General of the United Nations on 3 September 1965. Cameroon had also accepted the Court's compulsory jurisdiction by a declaration deposited with the Secretary-General on 3 March 1994. The Secretary-General transmitted copies of the Cameroon Declaration to the parties to the Statute eleven-and-a-half months later. Nigeria maintains, accordingly, that it had no way of knowing, and did not actually know, on the date of the filing of the Application, i.e., 29 March 1994, that Cameroon had deposited a declaration. Cameroon consequently is alleged to have "acted prematurely". By proceeding in this way, the Applicant "is alleged to have violated its obligation to act in good faith", "abused the system instituted by Article 36, paragraph 2, of the Statute" and disregarded "the condition of reciprocity" provided for by that Article and by Nigeria's Declaration. The Court consequently does not have jurisdiction to hear the Application.

23. In contrast, Cameroon contends that its Application fulfils all the conditions required by the Statute. It notes that in the case concerning Right of Passage over Indian Territory, the Court held that

"the Statute does not prescribe any interval between the deposit by a State of its Declaration of Acceptance and the filing of an Application by that State, and that the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 147).

Cameroon indicates that there is no reason not to follow this precedent, at the risk of undermining the system of compulsory jurisdiction provided by the Optional Clause. It adds that the Cameroonian Declaration was in force as early as 3 March 1994, as at that date it was registered in accordance with Article 102 of the United Nations Charter. Cameroon states that in any event Nigeria has acted, since the beginning of these proceedings, in such a way that it should be regarded as having accepted the jurisdiction of the Court.

24. Nigeria argues in reply that the "case concerning the Right of Passage over Indian Territory, was a first impression", that the Judgment given is outdated, and that it is an isolated one; that international law, especially as it relates to good faith, has evolved since and that in accordance with Article 59 of the Statute, that Judgment only has the force of res judicata as between the parties and in respect of that case. For these reasons, the solution adopted in 1957 should not be adopted here. Nigeria does not accept the reasoning of Cameroon based on Article 102 of the Charter. Nigeria also contends that there is no question of its [p 291] having consented to the jurisdiction of the Court in the case and hence there is no forum prorogatum.

Cameroon contests each of these arguments.

25. The Court observes initially that, in accordance with Article 36, paragraph 2, of the Statute:

"The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes"

as specified in that clause.

Article 36, paragraph 4, provides:

"Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court."

In the case concerning Right of Passage over Indian Territory, the Court concluded, in the light of these provisions, that:

"by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, 'ipso facto and without special agreement', by the fact of the making of the Declaration . . . For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned." (Right of Passage over Indian Territory, I.C.J. Reports 1957, p. 146.)

The conclusions thus reached by the Court in 1957 reflect the very essence of the Optional Clause providing for acceptance of the Court's compulsory jurisdiction. Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2, accepts jurisdiction in its relations with States previously having adhered to that clause. At the same time, it makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. The day one of those States accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be fulfilled. Thus, as the Court stated in 1957:

"every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of Acceptance" (ibid., p. 146). [p 292]

26. Furthermore, and as the Court also declared in the case concerning Right of Passage over Indian Territory, the State making the declaration

"is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action of the Secretary-General. Moreover, unlike some other instruments, Article 36 provides for no additional requirement, for instance, that the information transmitted by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system. The Court cannot read into the Optional Clause any requirement of that nature." (Ibid., pp. 146-147.)

27. The Court furthermore recalls that, contrary to what is maintained by Nigeria, this Judgment is not an isolated one. It has been reaffirmed in the case concerning the Temple of Preah Vihear (Preliminary Objections, I.C.J. Reports 1961, p. 31), and in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392). In that latter case, the Court pointed out that:

"as regards the requirement of consent as a basis of its jurisdiction, and more particularly as regards the formalities required for that consent to be expressed in accordance with the provisions of Article 36, paragraph 2, of the Statute, the Court has already made known its view in, inter alia, the case concerning the Temple of Preah Vihear. On that occasion it stated: 'The only formality required is the deposit of the acceptance with the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute' (I.C.J. Reports 1961, p. 31)." (I.C.J. Reports 1984, p. 412, para. 45.)

28. Nigeria nonetheless contests that conclusion pointing out that, in accordance with Article 59 of the Statute, "the decision of the Court has no binding force except between the parties and in respect of that particular case". Thus, judgments given earlier, in particular in the case concerning Right of Passage over Indian Territory, "clearly [have] no direct compelling effect in the present case".

It is true that, in accordance with Article 59, the Court's judgments bind only the parties to and in respect of a particular case. There can be no question of holding Nigeria to decisions reached by the Court in previous cases. The real question is whether, in this case, there is cause not to follow the reasoning and conclusions of earlier cases.

*[p 293]

29. In this regard, Nigeria maintains first of all that the interpretation given in 1957 to Article 36, paragraph 4, of the Statute should be reconsidered in the light of the evolution of the law of treaties which has occurred since. In that connection, Nigeria relies on Article 78 (c) of the Vienna Convention on the Law of Treaties of 23 May 1969. That Article relates to the notifications and communications made under that Convention. It provides that:

"Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall:
…………………………………………………………………………………….
(c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary."

According to Nigeria, that rule "must apply to Cameroon's Declaration". In the light of the provisions of the Vienna Convention, Nigeria contends that the Court should overturn the solution it adopted earlier in the case concerning Right of Passage over Indian Territory. Cameroon states, for its part, that the declarations of acceptance of the Court's compulsory jurisdiction "are not treaties within the meaning of the Vienna Convention" and "it was clearly no part of the intentions of the drafters of the . . . Convention . . . to interfere with the settled jurisprudence of the Court in this matter". This jurisprudence, Cameroon argues, should be followed.

30. The Court notes that the regime for depositing and transmitting declarations of acceptance of compulsory jurisdiction laid down in Article 36, paragraph 4, of the Statute of the Court is distinct from the regime envisaged for treaties by the Vienna Convention. Thus the provisions of that Convention may only be applied to declarations by analogy (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 420, para. 63).

31. The Court furthermore observes that in any event the provisions of the Vienna Convention do not have the scope which Nigeria imputes to them. Article 78 of the Convention is only designed to lay down the modalities according to which notifications and communications should be carried out. It does not govern the conditions in which a State expresses its consent to be bound by a treaty and those under which a treaty comes into force, those questions being governed by Articles 16 and 24 of the Convention. Indeed, the International Law Commission, in its Report to the General Assembly on the draft which was subsequently to become the Vienna Convention, specified that if the future Article 78 included in limine an explicit reservation, that was "primarily in order to prevent any misconception as to the relation" between that Article and the future Articles 16 and 24 (Yearbook of the International Law Com-[p 294]mission, 1966, Vol. II, p. 271). It added that consequently "specific provisions [of those latter Articles] will prevail".

According to Article 16:

"Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:
……………………………………………………………………………………………..
(b) their deposit with the depositary."

Article 24 further provides in its paragraph 3 that:


"When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides."

In its report to the General Assembly, the International Law Commission had pointed out that:

"In the case of the deposit of an instrument with a depositary, the problem arises whether the deposit by itself establishes the legal nexus between the depositing State and other contracting States or whether the legal nexus arises only upon their being informed by the depositary." (Ibid., 1966, Vol. II, p. 201.)

After describing the advantages and disadvantages of both solutions, it concluded that:

"The Commission considered that the existing general rule clearly is that the act of deposit by itself establishes the legal nexus . . . This was the view taken by the International Court of Justice in the Right of Passage over Indian Territory (preliminary objections) case in the analogous situation of the deposit of instruments of acceptance of the optional clause under Article 36, paragraph 2, of the Statute of the Court . . . [Therefore] the existing rule appears to be well-settled." (Ibid., 1966, Vol. II, p. 201.)

This general rule is reflected in Articles 16 and 24 of the Vienna Convention: the deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; the treaty enters into force as regards that State on the day of the deposit.

Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory. That solution should be maintained.

32. Nigeria maintains however that, in any event, Cameroon could not file an application before the Court without allowing a reasonable period to elapse "as would . . . have enabled the Secretary-General to take the [p 295] action required of him in relation to Cameroon's Declaration of 3 March 1994". Compliance with that time period is essential, the more so because, according to Nigeria, the Court, in its Judgment of 26 November 1984 in the case concerning Military and Paramilitary Activities in and against Nicaragua, required a reasonable time for the withdrawal of declarations under the Optional Clause.

33. The Court, in the above Judgment, noted that the United States had, in 1984, deposited with the Secretary-General, three days before the filing of Nicaragua's Application, a notification limiting the scope of its Declaration of acceptance of the Court's jurisdiction. The Court noted that that Declaration contained a clause requiring six months' notice of termination. It considered that that condition should be complied with in cases of either termination or modification of the Declaration, and concluded that the 1984 notification of modification could not, with immediate effect, override the obligation entered into by the United States beforehand (I.C.J. Reports 1984, p. 421, para. 65).

The Court noted, moreover, in relation to Nicaragua's Declaration upon which the United States was relying on the grounds of reciprocity, that, in any event,

"the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity" (ibid., p. 420, para. 63).

The Court added: "the question of what reasonable period of notice would legally be required does not need to be further examined: it need only be observed that [three days] would not amount to a 'reasonable time'" (ibid.).

34. The Court considers that the foregoing conclusion in respect of the withdrawal of declarations under the Optional Clause is not applicable to the deposit of those declarations. Withdrawal ends existing consensual bonds, while deposit establishes such bonds. The effect of withdrawal is therefore purely and simply to deprive other States which have already accepted the jurisdiction of the Court of the right they had to bring proceedings before it against the withdrawing State. In contrast, the deposit of a declaration does not deprive those States of any accrued right. Accordingly no time period is required for the establishment of a consensual bond following such a deposit.

35. The Court notes moreover that to require a reasonable time to elapse before a declaration can take effect would be to introduce an element of uncertainty into the operation of the Optional Clause system. As set out in paragraph 26 above, in the case concerning Right of Passage [p 296] over Indian Territory, the Court had considered that it could not create such uncertainty. The conclusions it had reached then remain valid and apply all the more since the growth in the number of States party to the Statute and the intensification of inter-State relations since 1957 have increased the possibilities of legal disputes capable of being submitted to the Court. The Court cannot introduce into the Optional Clause an additional time requirement which is not there.

*

36. Nigeria's second argument is that Cameroon omitted to inform it that it intended to accept the jurisdiction of the Court, then that it had accepted that jurisdiction and, lastly, that it intended to file an application. Nigeria further argued that Cameroon even continued, during the first three months of 1994, to maintain bilateral contacts with it on boundary questions while preparing itself to address the Court. Such conduct, Nigeria contends, infringes upon the principle of good faith which today plays a larger role in the case-law of the Court than before, and should not be accepted.

37. Cameroon, for its part, argues that it had no obligation to inform Nigeria in advance of its intentions, or of its decisions. It adds that in any event "Nigeria was not at all surprised by the filing of Cameroon's Application and . . . knew perfectly well what Cameroon's intentions were in that regard several weeks before the filing". The principle of good faith was not at all disregarded.

38. The Court observes that the principle of good faith is a well-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969. It was mentioned as early as the beginning of this century in the Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case (United Nations, Reports of International Arbitral Awards, Vol. XI, p. 188). It was moreover upheld in several judgments of the Permanent Court of International Justice (Factory at Chorzow, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 30; Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12 and 1932, P.C.I.J., Series A/B, No. 46, p. 167). Finally, it was applied by this Court as early as 1952 in the case concerning Rights of Nationals of the United States of America in Morocco (Judgment, I.C.J. Reports 1952, p. 212), then in the case concerning Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 18), the Nuclear Tests cases (I.C.J. Reports 1974, pp. 268 and 473), and the case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105). [p 297]

39. The Court furthermore notes that although the principle of good faith is "one of the basic principles governing the creation and performance of legal obligations . . . it is not in itself a source of obligation where none would otherwise exist" (Border and Transborder Armed Actions (Nicaragua v. Honduras) Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94). There is no specific obligation in international law for States to inform other States party to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Consequently, Cameroon was not bound to inform Nigeria that it intended to subscribe or had subscribed to the Optional Clause.

Moreover:

"A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146.)

Thus, Cameroon was not bound to inform Nigeria of its intention to bring proceedings before the Court. In the absence of any such obligations and of any infringement of Nigeria's corresponding rights, Nigeria may not justifiably rely upon the principle of good faith in support of its submissions.

40. On the facts of the matter, to which the Parties devoted considerable attention, and quite apart from legal considerations, the Court would add that Nigeria was not unaware of Cameroon's intentions. On 28 February 1994, Cameroon had informed the Security Council of incidents which had occurred shortly beforehand in the Bakassi Peninsula. In response, on 4 March 1994, Nigeria apprised the Security Council of its surprise in noting that "the Cameroon Government had decided to raise the matter to an international level by . . . (c) bringing proceedings before the International Court of Justice". Indeed on 4 March, Cameroon had deposited its declaration of acceptance of the compulsory jurisdiction of the Court, but had not yet seised the Court. Nigeria's communication to the Security Council nevertheless showed
that it was not uninformed of Cameroon's intentions.

Further the Court points out that, on 4 March 1994, the Journal of the United Nations, issued at Headquarters in New York to United Nations organs and to the permanent missions, reported that Cameroon had deposited with the Secretary-General a "declaration recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute of the Court" (Journal of the United Nations, Friday 4 March 1994, No. 1994/43 (Part II)).

Lastly, on 11 March 1994, the bringing of the matter to the Security Council and the International Court of Justice by Cameroon was men[p 298]tioned at the extraordinary general meeting of the Central Organ of the Mechanism for Conflict Prevention, Management and Resolution of the Organization of African Unity, devoted to the border conflict between Cameroon and Nigeria.

*

41. Nigeria recalls in the third place that, by its Declaration deposited on 3 September 1965, it had recognized

"as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to say, on the sole condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36, paragraph 2, of the Statute of the Court".

Nigeria maintains that on the date on which Cameroon's Application was filed, it did not know that Cameroon had accepted the Court's compulsory jurisdiction. Accordingly it could not have brought an application against Cameroon. There was an absence of reciprocity on that date. The condition contained in the Nigerian Declaration was operative; consequently, the Court does not have jurisdiction to hear the Application.

42. Cameroon disputes this argument in fact as well as in law. It states that, in the minds of the States party to the Optional Clause, the condition of reciprocity never possessed the meaning which Nigeria now ascribes to it; the Court had ascribed a completely different meaning to it in a number of its judgments. The interpretation now provided by Nigeria of its own declaration was a new interpretation for which no authority was cited in support. In sum, the purpose of the Nigerian Declaration, according to Cameroon, was only to emphasize that there is "a sole and unique condition to the compulsory character of the Court's jurisdiction in this case, i.e., that Cameroon should accept the same obligation as Nigeria, or in other words that it should accept the jurisdiction of the Court. This Cameroon does."

43. The Court has on numerous occasions had to consider what meaning it is appropriate to give to the condition of reciprocity in the implementation of Article 36, paragraph 2, of the Statute. As early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, "jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it" (I.C.J. Reports 1952, p. 103). The Court applied that rule again in the case of Certain Norwegian Loans (I.C.J. Reports 1957, pp. 23 and 24) and clarified it in the Interhandel case where it held that:

"Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration. . . Reciprocity enables the State which has made the wider acceptance of the [p 299] jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends." (I.C.J. Reports 1959, p. 23.)

In the final analysis, "the notion of reciprocity 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" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 419, para. 62). It simply requires that the Court ascertain whether, at the time of filing the Application instituting proceedings "the two States accepted 'the same obligation' in relation to the subject-matter of the proceedings" (ibid., pp. 420-421, para. 64).

Therefore, in legal proceedings, the notion of reciprocity, and that of equality, "are not abstract conceptions. They must be related to some provision of the Statute or of the Declarations" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 145). Consequently, "the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute" (ibid., p. 147).

Nigeria considers, however, that that precedent does not apply here. It points out that, although in its 1965 Declaration, it recognized the jurisdiction of the Court as compulsory in relation to any other State accepting the same obligation, it was more explicit in adding the words "and that is to say, on the sole condition of reciprocity". "Those additional words clearly have some meaning and effect . . . it is the supplementing of the 'coincidence' required by Article 36, paragraph 2, by the element of mutuality inherent in the concept of 'reciprocity'." The Nigerian condition, in other words, sought "to mitigate the effects" of the Court's earlier decision in the case concerning Right of Passage over Indian Territory by creating an equality of risk and precluding that proceedings be brought before the Court by surprise.

44. In support of its position, Nigeria invokes the decision given in the case concerning Anglo-Iranian Oil Co., in which the Court stated that it could not base its interpretation of the Iranian Declaration recognizing the jurisdiction of the Court


"on a purely grammatical interpretation of the text. It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court." (I.C.J. Reports 1952, p. 104.)

The Court had concluded that "it is unlikely that the Government of Iran, . . . should have been willing, on its own initiative, to agree that disputes relating" (ibid., p. 105) to the capitulations which it had just denounced be submitted to an international court of justice. [p 300]

45. The Court considers that the situation in this case is very different. Nigeria does not offer evidence in support of its argument that it intended to insert into its Declaration of 14 August 1965 a condition of reciprocity with a different meaning from the one which the Court had drawn from such clauses in 1957. In order to protect itself against the filing of surprise applications, in 1965, Nigeria could have inserted in its Declaration an analogous reservation to that which the United Kingdom added to its own Declaration in 1958. Ten or so other States proceeded in this way. Nigeria did not do so at that time. Like the majority of States which subscribe to the Optional Clause, it merely specified that the commitments it was entering into, in accordance with Article 36, paragraph 2, of the Statute, were reciprocal in relation to any other State accepting the same obligation. In the light of this practice, the additional phrase of the sentence, "that is to say, on the sole condition of reciprocity" must be understood as explanatory and not adding any further condition. This interpretation is "in harmony with a natural and reasonable way of reading the text" (I.C.J. Reports 1952, p. 104) and Nigeria's condition of reciprocity cannot be treated as a reservation ratione temporis.

46. The Court therefore concludes that the manner in which Cameroon's Application was filed was not contrary to Article 36 of the Statute. Nor was it made in violation of a right which Nigeria may claim under the Statute, or by virtue of its Declaration, as it was in force on the date of the filing of Cameroon's Application.

*

47. Nigeria's first preliminary objection is accordingly rejected. The Court is therefore not called upon to examine the reasoning put forward by Cameroon under Article 102 of the Charter, nor Cameroon's alternative submissions based on forum prorogatum. In any event, the Court has jurisdiction to pass upon Cameroon's Application.

**

Second Preliminary Objection

48. Nigeria raises a second preliminary objection stating that

"for a period of at least 24 years prior to the filing of the Application the Parties have in their regular dealings accepted a duty to settle all boundary questions through the existing bilateral machinery".


According to Nigeria, an implicit agreement is thus said to have been reached with a view to resorting exclusively to such machinery and to [p 301] refraining from relying on the jurisdiction of the International Court of Justice. In the alternative, Nigeria claims that by its conduct Cameroon is estopped from turning to the Court. Finally, Nigeria invokes the principle of good faith and the rule pacta sunt servanda in support of this argument.

49. Cameroon maintains that the bilateral bodies which dealt with various boundary difficulties that had emerged between the two countries had only been temporary and that no permanent institutional machinery had been set up. It contends that no explicit or implicit agreement had been established between the Parties with a view to vesting exclusive jurisdiction in such bodies. Finally, according to Cameroon, the conditions laid down in the Court's case-law for the application of estoppel to arise were not fulfilled here. Therefore, there was no occasion to apply the principle of good faith and the rule pacta sunt servanda.

50. Nigeria's objection thus consists of two branches. But before making a legal determination considering them in turn, the Court will review the relevant facts.

51. The first bilateral contact referred to in the pleadings concerns a local dispute in the districts of Danare (Nigeria) and Budam (Cameroon). This dispute gave rise in 1965 to "exploratory talks" concerning the demarcation of the boundary in this sector. That course having been determined by the German and British authorities at the beginning of the century, it was agreed to locate existing boundary pillars with a view to identifying the boundary and proceeding with its demarcation not only between Danare and Budam, but also on a stretch of some 20 miles from Obokum Falls to Bashu (boundary pillars Nos. 114 to 105). The existing pillars were identified but none of the work planned was subsequently carried out.

52. Five years later, in response to incidents that occurred in the Cross River region and the Bakassi Peninsula, the two Governments decided to set up a Joint Boundary Commission. At the first meeting of that Commission, the delegates from Cameroon and Nigeria approved, on 14 August 1970, a declaration recommending that the delimitation of the boundary be carried out in three stages:

"(a) the delimitation of the maritime boundary;

(b) the delimitation of the land boundary as defined in the Anglo-German Protocol signed at Obokum on 12 April 1913 and confirmed by the London Anglo-German agreement 'respecting (1) the settlement of Frontier between Nigeria and Cameroon from Yola to the sea; and (2) the Regulation of navigation on the Cross River', and the exchange of letters between the British and German Governments on 6 July 1914;

(c) the delimitation of the rest of the land boundary".

The declaration further specified the bases on which the delimitation of the maritime boundary was to be carried out. It recommended that the demarcation work commenced in 1965 be resumed. Finally, it recommended that, on completion of each of these stages, a separate treaty be [p 302] signed by the two countries to give effect to the boundary so demarcated and surveyed.

A Joint Technical Committee was then set up for the purpose of implementing the join declaration. As agreed, it began its work with the delimitation of the maritime boundary. Negotiations went on at various levels on this matter for almost five years. They concluded on 4 April 1971 as regards the maritime boundary at the mouth of the Cross River, then led on 1 June 1975 to a declaration in Maroua by the two Heads of State concerning the course of the maritime boundary from the mouth of the Cross River to a point denominated "G" situated, according to the Parties, some 17 nautical miles from the coast.

53. Over the following years, contacts between the two countries on these boundary issues became less frequent. At most, it may be noted that two Joint Committee meetings were held. The first, in 1978, was attended by the two Foreign Ministers. They set forth their points of view on a number of boundary problems without undertaking negotiations and the meeting did not result in any joint minutes. The second meeting, held in 1987, brought together the Ministers responsible for planning in the two countries and did not broach boundary matters.

54. The negotiations on these issues, which were interrupted after 1975, were only resumed between the two States 16 years later when, on 29 August 1991, the two Foreign Ministers adopted a joint communique stating:

"On border issues, the two sides agreed to examine in detail all aspects of the matter by the experts of the National Boundary Commission of Nigeria and the experts of the Republic of Cameroon at a meeting to be convened at Abuja in October 1991 with a view to making appropriate recommendations for a peaceful resolution of outstanding border issues."

Indeed, a first meeting of these experts took place at the same time as that of the Foreign Ministers in August 1991. It was followed by a second meeting at Abuja in December 1991, then by a third at Yaounde in August 1993. No agreement could be reached at these meetings, in particular as regards the Maroua Declaration, which was considered binding by Cameroon but not by Nigeria.

55. In sum, the Court notes that the negotiations between the two States concerning the delimitation or the demarcation of the boundary were carried out in various frameworks and at various levels: Heads of State, Foreign Ministers, experts. The negotiations were active during the period 1970 to 1975 and then were interrupted until 1991.

*

56. Turning to legal considerations, the Court will now consider the first branch of the Nigerian objection. It recalls first that, "Negotiation [p 303] and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes" (Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 12, para. 29). Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposal by the Advisory Committee of Jurists in 1920 (Advisory Committee of Jurists, Proces-verbaux of the proceedings of the Committee (16 June-24 July 1920) with Annexes, pp. 679, 725-726). Nor is it to be found in Article 36 of the Statute of this Court.

A precondition of this type may be embodied and is often included in compromissory clauses of treaties. It may also be included in a special agreement whose signatories then reserve the right to seise the Court only after a certain lapse of time (cf. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 9). Finally, States remain free to insert into their optional declaration accepting the compulsory jurisdiction of the Court a reservation excluding from the latter those disputes for which the parties involved have agreed or subsequently agree to resort to an alternative method of peaceful settlement. In this case, however, no reservation of this type was included in the Declarations of Nigeria or Cameroon on the date of the filing of the Application.

Moreover, the fact that the two States have attempted, in the circumstances set out in paragraphs 54 and 55 above, to solve some of the boundary issues dividing them during bilateral contacts, did not imply that either one had excluded the possibility of bringing any boundary dispute concerning it before other fora, and in particular the International Court of Justice. The first branch of Nigeria's objection accordingly is not accepted.

57. Turning to the second branch of the objection, the Court will examine whether the conditions laid down in its jurisprudence for an estoppel to exist are present in the instant case.

An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 26, para. 30; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 63).

These conditions are not fulfilled in this case. Indeed, as pointed out in paragraph 56 above, Cameroon did not attribute an exclusive character to the negotiations conducted with Nigeria, nor, as far as it appears, did [p 304] Nigeria. Furthermore, Nigeria does not show that it has changed its position to its detriment or that it has sustained prejudice in that it could otherwise have sought a solution to the border problems existing between the two States by having recourse to other procedures, but was precluded from doing so by reliance on the positions allegedly taken by Cameroon.

58. Finally, the Court has not been persuaded that Nigeria has been prejudiced as a result of Cameroon's having instituted proceedings before the Court instead of pursuing negotiations which, moreover, were deadlocked when the Application was filed.
59. This being so, in bringing proceedings before the Court, Cameroon did not disregard the legal rules relied on by Nigeria in support of its second objection. Consequently, Nigeria is not justified in relying on the principle of good faith and the rule pacta sunt servanda, both of which relate only to the fulfilment of existing obligations. The second branch of Nigeria's objection is not accepted.

60. The second preliminary objection as a whole is thus rejected.

**

Third Preliminary Objection

61. In its third preliminary objection, Nigeria contends that "the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission".

62. In support of this argument, Nigeria invokes the treaty texts governing the Statute of the Commission as well as the practice of member States. It argues that "the procedures for settlement by the Commission are binding upon the Parties" and that Cameroon was thus barred from raising the matter before the Court on the basis of Article 36, paragraph 2, of the Statute.

63. For its part, Cameroon submits to the Court that

"no provision of the Statute of the Lake Chad Basin Commission establishes in favour of that international organization any exclusive competence in relation to boundary delimitation".

It adds that no such exclusive jurisdiction can be inferred from the conduct of member States. It therefore calls upon the Court to reject the third preliminary objection.

*

64. The Court observes that the Statute of the Lake Chad Basin Commission was annexed to an Agreement of 22 May 1964 signed on that [p 305] date by Cameroon, Chad, Niger and Nigeria. According to its preamble, this convention concerning the development of the Lake Chad Basin is designed "to formulate principles of the utilization of the resources of the Basin for economic purposes, including the harnessing of the water". Article IV of the Statute develops those principles by providing that

"the development of the said Basin and in particular the utilisation of surface and ground waters shall be given its widest connotation and refers in particular to domestic, industrial and agricultural development, the collection of the products of its fauna and flora".

In addition, under Article VII of the Statute, member States undertake to "establish common rules for the purpose of facilitating navigation on the Lake and on the navigable waters in the Basin and to ensure the safety and control of navigation".

Article I of the Convention establishes the Lake Chad Basin Commission. The Commission comprises two commissioners per member State. In accordance with Article X, paragraph 3, of the Statute, the decisions of the Commission shall be by unanimous vote.

The functions of the Commission are laid down in Article IX of the same Statute. They are inter alia to prepare "general regulations which will permit the full application of the principles set forth in the present Convention and its annexed Statute, and to ensure their effective application". The Commission exercises various powers with a view to co-ordinating action by member States regarding the use of the waters of the Basin. Finally, one of its responsibilities under Article IX, paragraph (g), is "to examine complaints and to promote the settlement of disputes and the resolution of differences".

65. Member States have also entrusted to the Commission certain tasks that had not originally been provided for in the treaty texts. Further to incidents between Cameroon and Nigeria in 1983 in the Lake Chad area, an extraordinary meeting of the Commission was convened from 21 to 23 July 1983 in Lagos on the initiative of the Heads of State concerned, in order to entrust to the Commission certain boundary and security matters. Two sub-commissions of experts were then set up. They met from 12 to 16 November 1984. An agreement was immediately reached between the experts to adopt "as working documents" various bilateral conventions and agreements concluded between Germany, France and the United Kingdom between 1906 and 1931 "on the delimitation of Borders in the Lake Chad area". The experts proposed at the same time that the boundary so delimited be demarcated as early as possible.

This demarcation was carried out from 1988 to 1990 in the course of three boundary-marking operations involving the setting up of seven main and 68 intermediary boundary pillars. The Final Report on Beaconing was signed by the delegates of the four States concerned. Then, [p 306] on 23 March 1994, at the Eighth Summit of the Lake Chad Basin Commission in Abuja, the Heads of State and Government were informed that "the physical work in the field on the border demarcation exercise was fully completed". They then decided "to approve the technical document on the demarcation of the international boundaries of member States in Lake Chad", on the understanding "that each country should adopt the document in accordance with its national laws". The question of the ratification of that document came up at the Ninth Summit of Heads of State of the Commission held on 30 and 31 October 1996 in N'djamena when Heads of State of Cameroon and Nigeria were absent and where no progress was recorded. Since then, however, on 22 December 1997, Cameroon deposited its instrument of ratification, whereas Nigeria has not done so.

*

66. In the light of the treaty texts and the practice thus recalled, the Court will consider the positions of the Parties on this matter. For its part, Nigeria first of all contends that "the role and Statute of the Commission" must be understood "in the framework of regional agencies" referred to in Article 52 of the United Nations Charter. It accordingly concludes that "the Commission has an exclusive power in relation to issues of security and public order in the region of Lake Chad and that these issues appropriately encompass the business of boundary demarcation".

Cameroon argues, for its part, that the Commission does not constitute a regional arrangement or agency within the meaning of Article 52 of the Charter, pointing in particular to the fact that

"there has never been any question of extending this category to international regional organizations of a technical nature which, like the [Commission], can include a mechanism for the peaceful settlement of disputes or for the promotion of that kind of settlement".

67. The Court notes that Article 52, paragraph 1, of the Charter refers to "regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action". According to paragraph 2 of that Article,

"the Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council".

Under Article 53, the Security Council may use these arrangements or agencies for "enforcement action under its authority".

From the treaty texts and the practice analysed at paragraphs 64 and [p 307] 65 above, it emerges that the Lake Chad Basin Commission is an international organization exercising its powers within a specific geographical area; that it does not however have as its purpose the settlement at a regional level of matters relating to the maintenance of international peace and security and thus does not fall under Chapter VIII of the Charter.

68. However, even were it otherwise, Nigeria's argument should nonetheless be set aside. In this connection, the Court notes that, in the case concerning Military and Paramilitary Activities in and against Nicaragua, it did not consider that the Contadora process could "properly be regarded as a 'regional arrangement' for the purposes of Chapter VIII of the United Nations Charter". But it added that, in any event,

"the Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of the Nicaraguan Application" (I.C.J. Reports 1984, p. 440).

Whatever their nature, the existence of procedures for regional negotiation cannot prevent the Court from exercising the functions conferred upon it by the Charter and the Statute.

69. Nigeria further invokes Article 95 of the United Nations Charter according to which:


"Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future."

According to Nigeria, the Lake Chad Basin Commission should be seen as a tribunal falling under the provisions of this text. This would mean that, if the Court were to pronounce on this submission of Cameroon it "would be in breach of the principle of the autonomy of jurisdictional competence" and "would be exercising an appellate jurisdiction".

The Court considers that the Lake Chad Basin Commission cannot be seen as a tribunal. It renders neither arbitral awards nor judgments and is therefore neither an arbitral nor a judicial body. Accordingly, this contention of Nigeria must also be set aside.

70. Nigeria further maintains that the Convention of 22 May 1964, confirmed by the practice of the member States of the Commission, attributes to that Commission an exclusive competence for the settlement of boundary disputes. It concludes from this that the Court cannot entertain Cameroon's submissions requesting it to determine the boundary between the two countries in this sector. [p 308]

The Court cannot subscribe to that reasoning. It notes first of all that no provision in the Convention ascribes jurisdiction and a fortiori exclusive jurisdiction to the Commission as regards the settlement of boundary disputes. In particular, such a jurisdiction cannot be deduced from Article IX, paragraph (g), of the Convention (see paragraph 64 above).

The Court further notes that the member States of the Commission subsequently charged it with carrying out the demarcation of boundaries in the region on the basis of the agreements and treaties referred to in the experts' report of November 1984 (see paragraph 65 above). Thus, as pointed out by Nigeria, "the question of boundary demarcation was clearly within the competence of the [Commission]". This demarcation was designed by the States concerned as a physical operation to be carried out in the field under the authority of the Commission with a view to avoiding the reoccurrence of the incidents that had arisen in 1983.

But the Commission has never been given jurisdiction, and a fortiori exclusive jurisdiction, to rule on the territorial dispute now involving Cameroon and Nigeria before the Court, a dispute which moreover did not as yet exist in 1983. Consequently, Nigeria's argument must be dismissed.

71. Nigeria also argues that, from 1983 to 1994, "Cameroon had clearly and consistently evinced acceptance of the regime of exclusive recourse to the Lake Chad Basin Commission"; Cameroon then appealed to the Court contrary to the commitments it had entered into. This course of conduct, it was argued, had been prejudicial to Nigeria, deprived as it was of the "consultation" and "negotiation" procedures afforded by the Commission. Nigeria claims that Cameroon is estopped from making its Application.


The Court points out that the conditions laid down in its case-law for an estoppel to arise, as set out in paragraph 57 above, are not fulfilled in this case. Indeed, Cameroon has not accepted that the Commission has jurisdiction to settle the boundary dispute now submitted to the Court. This argument must also be set aside.

72. In the alternative, Nigeria finally argues that, on account of the demarcation under way in the Lake Chad Basin Commission, the Court "cannot rule out the consideration of the need for judicial restraint on grounds of judicial propriety" and should decline to rule on the merits of Cameroon's Application, as it did in 1963 in the case concerning Northern Cameroons.

In that case, the Court had noted that the United Nations General Assembly had terminated the trusteeship agreement in respect of the Northern Cameroon by resolution 1608 (XV); it observed that the dispute between the parties "about the interpretation and application [of that agreement therefore concerned a treaty] no longer in force"; it went on to say that "there can be no opportunity for a future act of interpretation or application of that treaty in accordance with any judgment the [p 309] Court might render". It had concluded that any adjudication would thus be "devoid of purpose" and that no purpose "would be served by undertaking an examination of the merits in the case". Observing that the limits of its judicial function "do not permit it to entertain the claims submitted to it [by Cameroon, it had considered itself unable to] adjudicate upon the merits of [those] claim[s]" (Northern Cameroons, Judgment, I.C.J. Reports 1963, pp. 37-38).

The Court considers that the situation in the present case is entirely different. Indeed, whereas in 1963 Cameroon did not challenge the validity of the General Assembly resolution terminating the trusteeship, Nigeria, in the present case, does not regard the technical document on the demarcation of the boundaries, approved at the Abuja Summit of the Lake Chad Basin Commission, as a document definitively settling boundary problems in that region. Nigeria reserved its position before the Court as regards the binding character of that document. It contends that the document requires ratification and recalls that it has not ratified it. Lastly, it specified at the Ninth Summit of the Commission at N'Djamena in 1996 that "Nigeria could
not even start processing ratification unless the issue was out of Court".

Cameroon for its part considers that Nigeria is obliged to complete the process of approval of the document concerned and, that, even in the absence of so doing, the boundary between the two countries in this sector is "legally defined", "marked out on the ground" and "internationally recognized".

It is not for the Court at this stage to rule upon these opposing arguments. It need only note that Nigeria cannot assert both that the demarcation procedure initiated within the Lake Chad Commission was not completed and that, at the same time, that procedure rendered Cameroon's submissions moot. There is thus no reason of judicial propriety which should make the Court decline to rule on the merits of those submissions.

73. In the light of the above considerations, Nigeria's third preliminary objection must be rejected.

**
Fourth Preliminary Objection

74. The Court will now turn to the fourth preliminary objection raised by Nigeria. This objection contends 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 the Lake."

75. Nigeria holds that the location of the tripoint within Lake Chad directly affects a third State, the Republic of Chad, and that the Court [p 310] therefore cannot determine this tripoint. Nigeria maintains that the finding of the Chamber in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali)

"that its jurisdiction is not restricted simply because the end-point of the frontier lies on the frontier of a third State not party to the proceedings. The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59 of the Statute . . ." (I.C.J. Reports 1986, p. 577, para. 46)

is not applicable in the present case. It says there is a difference because the 1986 Frontier Dispute case was instituted by Special Agreement, which reflected the agreement of the Parties to have the entire boundary delimited. In addition, in the Frontier Dispute case Niger was treated as a wholly third party, while in the present case there is the Lake Chad Basin Commission in which the States bordering Lake Chad co-operate. Because of that co-operation, boundary or other agreements relating to Lake Chad between Nigeria and Cameroon are not res inter alios acta for the other member States of the Commission. Therefore, neither Niger nor Chad are simple third parties in this case. According to Nigeria, "the regime of Lake Chad is subject to multilateral co-operation, and is not susceptible to the thorough-going bilateralization" which the Chamber adopted in the Frontier Dispute case.

Nigeria also alleges that it is not the case that Chad as a third party is merely theoretically or contingently involved in the question of boundaries; there had been clashes between Nigeria and Chad in and in relation to Lake Chad. Finally, Nigeria questions the distinction which the Chamber in the Frontier Dispute case drew between maritime and land delimitation. "Criteria of equidistance, proportionality and equity have been applied to the delimitation of lacustrine boundaries, especially in large lakes." Nigeria's position is such that it would warrant the conclusion that its fourth preliminary objection goes not only to the jurisdiction of the Court (by analogy with the principle in the case of the Monetary Gold Removed from Rome in 1943, Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19), but also to the admissibility of the Application, as the objection is in its view well founded on either basis.

76. Cameroon claims that the Court must exercise its jurisdiction over the totality of the disputed boundary, as far as the northern end-point within Lake Chad; Nigeria's fourth preliminary objection directly conflicts with consistent case-law relating to tripoints. Cameroon particularly rejects the Nigerian argument which distinguishes the Frontier Dispute decision from the present case: the absence of a special agreement, and therefore the consent of Nigeria to the institution of the proceedings, is irrelevant; Nigeria does not cite any precedent in which a differentiation was made between "wholly third States" and States which would not be [p 311] real third States. Inter se boundary agreements from which third States are absent are frequent. Article 59 suffices as protection of the third States' rights. The concept of theoretical involvement of a third State in a boundary question is, in the view of Cameroon, not pertinent. There is no support for this concept, the implications of which are not clearly explained. Lastly Cameroon contests the efforts made by Nigeria to exclude the applicability of the Frontier Dispute Judgment to delimitation in lakes.

77. The Court notes that, to the extent that Nigeria's reference to the Lake Chad Basin Commission is to be understood as referring to an exclusive competence of the Commission for boundary delimitation in Lake Chad, this argument has been dealt with under the third preliminary objection. As the third preliminary objection has not been upheld, the Court need not deal with this argument again.

78. The Court moreover notes that the submissions of Cameroon addressed to it in the Additional Application (para. 17) and as formulated in the Memorial of Cameroon (Memorial of Cameroon, pp. 669-671, para. 9) do not contain a specific request to determine the localization of the tripoint Nigeria-Cameroon-Chad in the Lake. The Additional Application requests the Court "to specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea" (para. 17 (f) of the Additional Application), while the Memorial requests the Court to adjudge and declare:

"that the lake and land boundary between Cameroon and Nigeria takes the following course:

-- from the point at longitude 14 [degree] 04' 59" 9999 E of Greenwich and latitude 13 [degree] 05' 00" 0001 N, it then runs through the point located at longitude 14 [degree] 12' 11" 7 E and latitude 12 [degree] 32' 17" 4 N;" (para. 9.1 (a), p. 669).

These submissions nevertheless bear upon the localization of the tripoint. They could lead either to a confirmation of the localization of the tripoint as accepted in practice up to now on the basis of acts and agreements of the former colonial powers and the demarcation carried out by the Commission (see paragraph 65 above), or they could lead to a redetermination of the situation of the tripoint, possibly as a consequence of Nigeria's claims to Darak and adjacent islands. Thus these claims cannot be considered on the merits by the Court at this stage of the proceedings. However, the Court notes, at the present stage, that they are directed against Cameroon and that in due course the Court will be in a position to take its decision in this regard without pronouncing on interests that Chad may have, as the Court will demonstrate hereafter.

79. The Court therefore now turns to the crux of Nigeria's fourth preliminary objection, namely
the assertion that the legal interests of Chad [p 312] would be affected by the determination of the tripoint, and that the Court can therefore not proceed to that determination.

The Court recalls that it has always acknowledged as one of the fundamental principles of its Statute that no dispute between States can be decided without their consent to its jurisdiction (Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32.) Nevertheless, the Court has also emphasized that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case; and the Court has only declined to exercise jurisdiction when the interests of the third State "constitute the very subject-matter of the judgment to be rendered on the merits" (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 104-105, para. 34).

The Court observes that the submissions presented to it by Cameroon refer to the frontier between Cameroon and Nigeria and to that frontier alone. These submissions do not refer to the frontier between Cameroon and the Republic of Chad either as contained in the Additional Application of Cameroon or as formulated in the Memorial. Certainly, the request to "specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea" (para. 17 (f) of the Additional Application) may affect the tripoint, i.e., the point where the frontiers of Cameroon, Chad and Nigeria meet. However, the request to specify the frontier between Cameroon and Nigeria from Lake Chad to the sea does not imply that the tripoint could be moved away from the line constituting the Cameroon-Chad boundary. Neither Cameroon nor Nigeria contest the current course of that boundary in the centre of Lake Chad as it is described in the "technical document on the demarcation of the . . . boundaries" mentioned in paragraph 65 above. Incidents between Nigeria and Chad in the Lake, as referred to by Nigeria, concern Nigeria and Chad but not Cameroon or its boundary with Chad. Any redefinition of the point where the frontier between Cameroon and Nigeria meets the Chad- Cameroon frontier could in the circumstances only lead to a moving of the tripoint along the line of the frontier in the Lake between Chad and Cameroon. Thus, the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered on the merits of Cameroon's Application; and therefore, the absence of Chad does not prevent the Court from proceeding to a specification of the border between Cameroon and Nigeria in the Lake.

80. The Court notes also that, in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), the tripoint where the boundary between Libya and Chad meets the western boundary of the Sudan, on the 24th meridian east of Greenwich, was determined without involve-[p 313]ment of the Sudan. The eastern end-points of the principal lines taken into consideration by the Court in that case for the delimitation of the boundary between Libya and Chad were situated at various locations on the western boundary of the Sudan.

Furthermore, in that case, the Court, in the absence of Niger, fixed the western boundary between Libya and Chad as far as the point of intersection of the 15th meridian east and the parallel 23 [degree] of latitude north, a point at which, according to Chad, the frontiers of Chad, Libya and Niger meet.

81. The factual situation underlying the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) was quite different from the present case in the sense that the relevant part of the boundary of Niger at the time was not delimited; in that case the fixing of the tripoint therefore immediately involved Niger as a third State, which, however, did not prevent the Chamber from tracing the boundary between Burkina Faso and the Republic of Mali to its furthest point. Whether the location of the tripoint in Lake Chad has actually to be changed from its present position will follow from the judgment on the merits of Cameroon's Application. Such a change would have no consequence for Chad.

82. Finally the Court observes that, since neither Cameroon nor Nigeria challenge the current course of the boundary, in the centre of Lake Chad, between Cameroon and the Republic of Chad (see paragraph 79 above), it does not have to address -- even if that was possible at the present preliminary stage -- the argument presented by Nigeria concerning the legal principles applicable to the determination of boundaries in lakes and especially in large lakes like Lake Chad.

83. The fourth preliminary objection is accordingly rejected.

**

Fifth Preliminary Objection

84. In its fifth preliminary objection Nigeria alleges 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.

85. In the course of the oral proceedings, it became clear that in addition to Darak and Bakassi, there are competing claims of Nigeria and Cameroon in respect of the village of Tipsan, which each Party claims to be on its side of the boundary. Also, in the course of the oral proceedings, a question was asked of the Parties by a Member of the Court as to whether Nigeria's assertion that there is no dispute as regards the land [p 314] boundary between the two States (subject to the existing problems in the Bakassi Peninsula and the Darak region) signifies,

"that, these two sectors apart, there is agreement between Nigeria and Cameroon on the geographical co-ordinates of this boundary as they result from the texts relied on by Cameroon in its Application and its Memorial".

The reply given to this question by Nigeria will be examined below (paragraph 91).

86. For Cameroon its existing boundary with Nigeria was precisely delimited by the former colonial powers and by decisions of the League of Nations and acts of the United Nations.

These delimitations were confirmed or completed by agreements made directly between Cameroon and Nigeria after their independence. Cameroon requests that the Court "specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea" (Additional Application, para. 17 (f)) along a line the co-ordinates of which are given in Cameroon's Memorial.

The fact that Nigeria claims title to the Bakassi Peninsula and Darak, and adjacent islands, means, in the view of Cameroon, that Nigeria contests the validity of these legal instruments and thus calls into question the entire boundary which is based on them. That, in the view of

Cameroon, is confirmed by the occurrence, along the boundary, of numerous incidents and incursions. Nigeria's claims to Bakassi as well as its position regarding the Maroua Declaration also throw into doubt the basis of the maritime boundary between the two countries. In Cameroon's view, and contrary to what Nigeria asserts, a dispute has arisen between the two States concerning the whole of the boundary.

87. The Court recalls that,

"in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties (see Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11; Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 27; and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35)" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99-100, para. 22);

and that,

"in order to establish the existence of a dispute, 'It must be shown that the claim of one party is positively opposed by the other' (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, [p 315] p. 328); and further, 'Whether there exists an international dispute is a matter for objective determination' (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)" (ibid., p. 100).

On the basis of these criteria, there can be no doubt about the existence of disputes with respect to Darak and adjacent islands, Tipsan, as well as the Peninsula of Bakassi. This latter dispute, as indicated by Cameroon, might have a bearing on the maritime boundary between the two Parties.

88. All of these disputes concern the boundary between Cameroon and Nigeria. However, given the great length of that boundary, which runs over more than 1,600 km from Lake Chad to the sea, it cannot be said that these disputes in themselves concern so large a portion of the boundary that they would necessarily constitute a dispute concerning the whole of the boundary.

89. Further, the Court notes that, with regard to the whole of the boundary, there is no explicit challenge from Nigeria. However, a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party. In this respect the Court does not find persuasive the argument of Cameroon that the challenge by Nigeria to the validity of the existing titles to Bakassi, Darak and Tipsan, necessarily calls into question the validity as such of the instruments on which the course of the entire boundary from the tripoint in Lake Chad to the sea is based, and therefore proves the existence of a dispute concerning the whole of the boundary.

90. The occurrence of boundary incidents certainly has to be taken into account in this context. However, not every boundary incident implies a challenge to the boundary. Also, certain of the incidents referred to by Cameroon took place in areas which are difficult to reach and where the boundary demarcation may have been absent or imprecise. And not every incursion or incident alleged by Cameroon is necessarily attributable to persons for whose behaviour Nigeria's responsibility might be engaged. Even taken together with the existing boundary disputes, the incidents and incursions reported by Cameroon do not establish by themselves the existence of a dispute concerning all of the boundary between Cameroon and Nigeria.

91. However, the Court notes that Nigeria has constantly been reserved in the manner in which it has presented its own position on the matter. Although Nigeria knew about Cameroon's preoccupation and concerns, it has repeated, and has not gone beyond, the statement that there is no [p 316] dispute concerning "boundary delimitation as such". Nigeria has shown the same caution in replying to the question asked by a Member of the Court in the oral proceedings (see paragraph 85 above). This question was whether there is agreement between the Parties on the geographical co-ordinates of the boundary as claimed by Cameroon on the basis of the texts it relies upon. The reply given by Nigeria reads as follows:

"The land boundary between Nigeria and Cameroon is not described by reference to geographical co-ordinates. Rather, the relevant instruments (all of which pre-date the independence of Nigeria and Cameroon) and well-established practice, both before and after independence, fix the boundary by reference to physical features such as streams, rivers, mountains and roads, as was common in those days. Since independence, the two States have not concluded any bilateral agreement expressly confirming or otherwise describing the pre-independence boundary by reference to geographical co-ordinates. Nevertheless, the course of the boundary, which was well-established before independence and related United Nations procedures, has continued to be accepted in practice since then by Nigeria and Cameroon."

92. The Court notes that, in this reply, Nigeria does not indicate whether or not it agrees with Cameroon on the course of the boundary or on its legal basis, though clearly it does differ with Cameroon about Darak and adjacent islands, Tipsan and Bakassi. Nigeria states that the existing land boundary is not described by reference to geographical co-ordinates but by reference to physical features. As to the legal basis on which the boundary rests, Nigeria refers to "relevant instruments" without specifying which these instruments are apart from saying that they pre-date independence and that, since independence, no bilateral agreements "expressly confirming or otherwise describing the pre-independence boundary by reference to geographical co-ordinates" have been concluded between the Parties. That wording seems to suggest that the existing instruments may require confirmation. Moreover, Nigeria refers to "well-established practice both before and after independence" as one of the legal bases of the boundary whose course, it states, "has continued to be accepted in practice"; however, it does not indicate what that practice is.

93. The Court is seised with the submission of Cameroon which aims at a definitive determination of its boundary with Nigeria from Lake Chad to the sea (see paragraph 86 above). Nigeria maintains that there is no dispute concerning the delimitation of that boundary as such throughout its whole length from the tripoint in Lake Chad to the sea (see paragraph 84 above) and that Cameroon's request definitively to determine [p 317] that boundary is not admissible in the absence of such a dispute. However, Nigeria has not indicated its agreement with Cameroon on the course of that boundary or on its legal basis (see paragraph 92 above) and it has not informed the Court of the position which it will take in the future on Cameroon's claims. Nigeria is entitled not to advance arguments that it considers are for the merits at the present stage of the proceedings; in the circumstances however, the Court finds itself in a situation in which it cannot decline to examine the submission of Cameroon on the ground that there is no dispute between the two States. Because of Nigeria's position, the exact scope of this dispute cannot be determined at present; a dispute nevertheless exists between the two Parties, at least as regards the legal bases of the boundary. It is for the Court to pass upon this dispute.

94. The fifth preliminary objection raised by Nigeria is thus rejected.

**

Sixth Preliminary Objection

95. The Court will now turn to Nigeria's sixth preliminary objection which is to the effect that there is no basis for a judicial determination that Nigeria bears international responsibility for alleged frontier incursions.

96. Nigeria contends that the submissions of Cameroon do not meet the standard required by Article 38 of the Rules of Court and general principles of law regarding the adequate presentation of facts on which Cameroon's request is based, including dates, the circumstances and precise locations of the alleged incursions and incidents into and on Cameroonian territory. Nigeria maintains that what Cameroon has presented to the Court does not give Nigeria the knowledge which it needs and to which it is entitled in order to prepare its reply. Similarly, in Nigeria's view, the material submitted is so sparse that it does not enable the Court to carry out fair and effective judicial determination of, or make determination on, the issues of State responsibility and reparation raised by Cameroon. While Nigeria acknowledges that a State has some latitude in expanding later on what it has said in its Application and in its Memorial, Cameroon is said to be essentially restricted in its elaboration to the ase as presented in its Application.

97. Cameroon insists that it stated clearly in its pleadings that the facts referred to in order to establish Nigeria's responsibility were only of an indicative nature and that it could, where necessary, amplify those facts when it comes to the merits. Cameroon refers to the requirements established in Article 38, paragraph 2, of the Rules and which call for a "succinct" presentation of the facts. It holds that parties are free to develop [p 318] the facts of the case presented in the application or to render them more precise in the course of the proceedings.


98. The decision on Nigeria's sixth preliminary objection hinges upon the question of whether the requirements which an application must meet and which are set out in Article 38, paragraph 2, of the Rules of Court are met in the present instance. The requirements set out in Article 38, paragraph 2, are that the Application shall "specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based". The Court notes that "succinct", in the ordinary meaning to be given to this term, does not mean "complete" and neither the context in which the term is used in Article 38, paragraph 2, of the Rules of Court nor the object and purpose of that provision indicate that it should be interpreted in that way. Article 38, paragraph 2, does therefore not preclude later additions to the statement of the facts and grounds on which a claim is based.

99. Nor does Article 38, paragraph 2, provide that the latitude of an applicant State, in developing what it has said in its application is strictly limited, as suggested by Nigeria. That conclusion cannot be inferred from the term "succinct"; nor can it be drawn from the Court's pronouncements on the importance of the point of time of the submission of the application as the critical date for the determination of its admissibility; these pronouncements do not refer to the content of applications (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, 1998, para. 43; and Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, 1998, para. 44). Nor would so narrow an interpretation correspond to the finding of the Court that,

"whilst under Article 40 of its Statute the subject of a dispute brought before the Court shall be indicated, Article 32 (2) of the Rules of Court [today Art. 38, para. 2] requires the Applicant 'as far as possible' to do certain things. These words apply not only to specifying the provision on which the Applicant founds the jurisdiction of the Court, but also to stating the precise nature of the claim and giving a succinct statement of the facts and grounds on which the claim is based." (Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 28.)

The Court also recalls that it has become an established practice for States submitting an application to the Court to reserve the right to present additional facts and legal considerations. The limit of the freedom to present such facts and considerations is "that the result is not to transform the dispute brought before the Court by the application into [p 319] another dispute which is different in character" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80). In this case, Cameroon has not so transformed the dispute.

100. As regards the meaning to be given to the term "succinct", the Court would simply note that Cameroon's Application contains a sufficiently precise statement of the facts and grounds on which the Applicant bases its claim. That statement fulfils the conditions laid down in Article 38, paragraph 2, and the Application is accordingly admissible.

This observation does not, however, prejudge the question whether, taking account of the information submitted to the Court, the facts alleged by the Applicant are established or not, and whether the grounds it relies upon are founded or not. Those questions belong to the merits and may not be prejudged in this phase of the proceedings.

101. Lastly, the Court cannot agree that the lack of sufficient clarity and completeness in Cameroon's Application and its inadequate character, as perceived by Nigeria, make it impossible for Nigeria to respond effectively to the allegations which have been presented or makes it impossible for the Court ultimately to make a fair and effective determination in the light of the arguments and the evidence then before it. It is the applicant which must bear the consequences of an application that gives an inadequate rendering of the facts and grounds on which the claim is based. As the Court has stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America):

"ultimately . . . however, it is the litigant seeking to establish a fact who bears the burden of proving it; and in cases where evidence may not be forthcoming, a submission may in the judgment be rejected as unproved, but is not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof." (Ibid., p. 437, para. 101.)

102. The Court consequently rejects the sixth preliminary objection raised by Nigeria.

**

Seventh Preliminary Objection

103. In its seventh preliminary objection Nigeria contends that there is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court.

104. Nigeria says that this is so for two reasons: in the first place, no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula. Secondly, at the juncture when there is a determination of the question of title over the Bakassi [p 320] Peninsula, the issues of maritime delimitation will not be admissible in the absence of prior sufficient action by the Parties, on a footing of equality, to effect a delimitation "by agreement on the basis of international law". In Nigeria's view, the Court cannot properly be seised by the unilateral application of one State in relation to the delimitation of an exclusive economic zone or continental shelf boundary if that State has made no attempt to reach agreement with the respondent State over that boundary, contrary to the provisions of Articles 74 and 83 of the United Nations Convention on the Law of the Sea. Any such unilateral application, in the view of Nigeria, is inadmissible.

105. Cameroon is of the view that the first argument invoked by Nigeria concerns neither jurisdiction nor the admissibility of its Application, but simply the method whereby the merits of the case are best addressed, a decision which falls within the discretion of the Court. As to the second argument put forward by Nigeria, Cameroon denies that the conduct of negotiations is a precondition for instituting proceedings before the Court in cases of delimitation. Cameroon views the identical paragraphs 2 of Articles 74 and 83 of the United Nations Convention on the Law of the Sea not as barring recourse to third party settlement, but as an obligation for such recourse in order to avoid unilateral delimitations.

Cameroon says that, in any event, it had sufficiently negotiated with Nigeria before it seised the Court, and it seised the Court only when it became clear that any new negotiation would be doomed to failure. In this respect, it contends that since the actual occupation of the Bakassi Peninsula by Nigeria, any negotiation on the delimitation of the maritime boundary has become impossible.

106. The Court will initially address the first argument presented by Nigeria. The Court accepts that it will be difficult if not impossible to determine the delimitation of the maritime boundary between the Parties as long as the title over the Peninsula of Bakassi has not been determined. The Court notes, however, that Cameroon's Application not only requests the Court

"to proceed to prolong the course of its maritime boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions" (Application of Cameroon of 29 March 1994, p. 15, para. 20 (f)),

but also,

"to adjudge and declare:

(a) that sovereignty over the Peninsula of Bakassi is Cameroonian, by virtue of international law, and that that Peninsula is an integral part of the territory of Cameroon" (ibid., para. 20). [p 321]

Since, therefore, both questions are before the Court, it becomes a matter for the Court to arrange the order in which it addresses the issues in such a way that it can deal substantively with each of them. That is a matter which lies within the Court's discretion and which cannot be the basis of a preliminary objection. This argument therefore has to be dismissed.

107. As to the second argument of Nigeria, the Court notes that, while its first argument concerned the whole maritime boundary, the second one seems only to concern the delimitation from point G seawards. That was accepted by counsel for Nigeria and seems to correspond to the fact that there were extensive negotiations between the two Parties in the period between 1970 and 1975 on the maritime boundary from the landfall on Bakassi to point G, which resulted in the disputed Maroua Declaration.

Moreover, the Court recalls that, in dealing with the cases brought before it, it must adhere to the precise request submitted to it. Nigeria here requests the Court to hold that,

"at the juncture where there is a determination of the question of title over the Bakassi Peninsula, the issues of maritime delimitation will not be admissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law'".
What is therefore in dispute between the Parties and what the Court has to decide now is whether the alleged absence of sufficient effort at negotiation constitutes an impediment for the Court to accept Cameroon's claim as admissible or not.

This matter is of a genuinely preliminary character and has to be decided under Article 79 of the Rules of Court.

108. In this connection, Cameroon and Nigeria refer to the United Nations Convention on the Law of the Sea, to which they are parties. Article 74 of the Convention, relating to the exclusive economic zone, and Article 83, concerning the continental shelf, provide, in their first identical paragraphs, that the delimitation

"between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution".

These are followed by identical paragraphs 2 which provide that "If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV". One of these procedures is the submission of the case to the Court for settlement by contentious proceedings.

109. However, the Court notes that, in this case, it has not been seised on the basis of Article 36, paragraph 1, of the Statute, and, in pursuance [p 322] of it, in accordance with Part XV of the United Nations Convention on the Law of the Sea relating to the settlement of disputes arising between the parties to the Convention with respect to its interpretation or application. It has been seised on the basis of declarations made under Article 36, paragraph 2, of the Statute, which declarations do not contain any condition relating to prior negotiations to be conducted within a reasonable time period.

The second argument of Nigeria cannot therefore be upheld.

*

110. In addition to what has been put forward by the Parties, the question could arise whether, beyond point G, the dispute between the Parties has been defined with sufficient precision for the Court to be validly seised of it. The Court observes not only that the Parties have not raised this point, but Cameroon and Nigeria entered into negotiations with a view to determining the whole of the maritime boundary. It was during these negotiations that the Maroua Declaration relating to the course of the maritime boundary up to point G was drawn up. This declaration was subsequently held to be binding by Cameroon, but not by Nigeria. The Parties have not been able to agree on the continuation of the negotiations beyond point G, as Cameroon wishes. The result is that there is a dispute on this subject between the Parties which, ultimately and bearing in mind the circumstances of the case, is precise enough for it to be brought before the Court.

*

111. The Court therefore rejects the seventh preliminary objection.

**

Eighth Preliminary Objection

112. The Court will now deal with the eighth and last of the preliminary objections presented by Nigeria. With that objection Nigeria contends, in the context of and supplementary to the seventh preliminary objection, that the question of maritime delimitation necessarily involves the rights and interests of third States and is to that extent inadmissible.

113. Nigeria refers to the particular concave configuration of the Gulf of Guinea, to the fact that five States border the Gulf and that there are no agreed delimitations between any two of those States in the disputed [p 323] area. In these circumstances, the delimitation of the maritime zones appertaining to two of the States bordering the Gulf will necessarily and closely affect the others. Nigeria also holds that the situation between Cameroon and Nigeria is distinct from that underlying the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (Judgment, I.C.J. Reports 1986, p. 554) as that case concerned a land boundary to the delimitation of which apply principles that are different from those applying to the delimitation of maritime boundaries. The case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta) (Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, p. 3) was different from the present case in the sense that the areas to which the claims of the third State (Italy) related, were known; and in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Application for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 3) the Court was merely laying down principles applicable to the delimitation of the continental shelf in a given context without actually drawing any particular line. Nigeria acknowledges that by virtue of Article 59 of the Statute, third States are not formally bound by decisions of the Court; it maintains nevertheless that Article 59 of the Statute gives insufficient protection, since in specific situations, in spite of that Article, decisions of the Court may have clear and direct legal and practical effects on third States, as well as on the development of international law.

114. Cameroon holds that the maritime delimitation which it is requesting the Court in part to confirm and in part to determine, concerns only the Parties to the present dispute. In Cameroon's view, the interests of all other States are preserved by Article 59 of the Statute and by the principle according to which any delimitation as between two States is res inter alios acta. Referring to the jurisprudence of the Court, Cameroon claims that the Court has not hesitated to proceed to maritime delimitations in cases where the rights of third States were more clearly in issue than they are in the present case. Cameroon also finds that practice of State treaties confirms that a delimitation is in no way made impossible by the existence of the interests of neighbouring States.

115. The Court notes, as do the Parties, that the problem of rights and interests of third States arises only for the prolongation, as requested by Cameroon, of the maritime boundary seawards beyond point G. As to the stretch of the maritime boundary from point G inwards to the point of landfall on the Bakassi Peninsula, certainly a dispute has arisen because of the rival claims of the Parties to Bakassi and the fact that the Maroua Declaration is considered binding by Cameroon but not by Nigeria.

That dispute however does not concern the rights and interests of third States. That is so because the geographical location of point G is clearly [p 324] closer to the Nigerian/Cameroonian mainland than is the location of the tripoint Cameroon-Nigeria-Equatorial Guinea to the mainland.

116. What the Court has to examine under the eighth preliminary objection is therefore whether prolongation of the maritime boundary beyond point G would involve rights and interests of third States and whether that would prevent it from proceeding to such prolongation. The Court notes that the geographical location of the territories of the other States bordering the Gulf of Guinea, and in particular Equatorial Guinea and Sao Tome and Principe, demonstrates that it is evident that the prolongation of the maritime boundary between the Parties seawards beyond point G will eventually run into maritime zones where the rights and interests of Cameroon and Nigeria will overlap those of third States. It thus appears that rights and interests of third States will become involved if the Court accedes to Cameroon's request. The Court recalls that it has affirmed, "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26). However, it stated in the same case that, "it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case" (ibid., p. 104, para. 34).

Similarly, in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), it adopted the same approach:

"a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court's decision on Nauru's claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction." (I.C.J. Reports 1992, pp. 261-262, para. 55.)

The Court cannot therefore, in the present case, give a decision on the eighth preliminary objection as a preliminary matter. In order to determine where a prolonged maritime boundary beyond point G would run, where and to what extent it would meet possible claims of other States, and how its judgment would affect the rights and interests of these States, the Court would of necessity have to deal with the merits of Cameroon's request. At the same time, the Court cannot rule out the possibility that the impact of the judgment required by Cameroon on the rights and interests of the third States could be such that the Court would be prevented from rendering it in the absence of these States, and that consequently Nigeria's eighth preliminary objection would have to be upheld at least in part. Whether such third States would choose to
exercise their rights to intervene in these proceedings pursuant to the Statute remains to be seen.

117. The Court concludes that therefore the eighth preliminary object-[p 325]tion of Nigeria does not possess, in the circumstances of the case, an exclusively preliminary character.

***

118. For these reasons,

THE COURT,

(1) (a) by fourteen votes to three,

Rejects the first preliminary objection;

IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola;

(b) by sixteen votes to one,

Rejects the second preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola;

AGAINST: Judge Koroma;

(c) by fifteen votes to two,

Rejects the third preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda,
Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Judge Koroma; Judge ad hoc Ajibola;

(d) by thirteen votes to four,

Rejects the fourth preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Parra-Aranguren; Judge ad hoc Ajibola;

(e) by thirteen votes to four,

Rejects the fifth preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Vereshchetin; Judge ad hoc Ajibola; [p 326]

(f) by fifteen votes to two,

Rejects the sixth preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Judge Koroma; Judge ad hoc Ajibola;

(g) by twelve votes to five,

Rejects the seventh preliminary objection;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Higgins, Kooijmans; Judge ad hoc Ajibola;

(2) by twelve votes to five,

Declares that the eighth preliminary objection does not have, in the circumstances of the case, an exclusively preliminary character;

IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Higgins, Kooijmans; Judge ad hoc Ajibola;

(3) by fourteen votes to three,

Finds that, on the basis of Article 36, paragraph 2, of the Statute, it has jurisdiction to adjudicate upon the dispute;


IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola;

(4) by fourteen votes to three,

Finds that the Application filed by the Republic of Cameroon on 29 March 1994, as amended by the Additional Application of 6 June 1994, is admissible.

IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eleventh day of June, one thousand [p 327] nine hundred and ninety-eight, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Cameroon and the Government of the Federal Republic of Nigeria, respectively.

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar

Judges ODA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN and KOOIJMANS append separate opinions to the Judgment of the Court.

Vice-President WEERAMANTRY, Judge KOROMA and Judge ad hoc AJIBOLA append dissenting opinions to the Judgment of the Court.

(Initialled) S.M.S.
(Initialled) E.V.O. [p 328]


Separate opinion of judge Oda

TABLE OF CONTENTS
 

 

Paragraphs

 

 

I. INTRODUCTORY REMARKS   

1-4

 

 

II. CAMEROON'S APPLICATION AS A WHOLE          

5-15

 

 

1.The structure of Cameroon's 1994 Application

6-11

2. The submissions contained in Cameroon's 1995 Memorial

12-15

 

 

III. REQUEST FOR DELIMITATION OF A BOUNDARY LINE          

16-28

 

 

1. The drawing of a maritime boundary

17-23

2. Lake and land boundary

24-26

3. Part III — Conclusion

27-28

 

 

IV. THE LEGAL DISPUTES WHICH MAY BE SUBMITTED TO THE COURT

29-31

 

 

V. CONCLUSIONS 

32-33


[p 329]

I. INTRODUCTORY REMARKS

1. I voted in favour of subparagraph (3), as well as of subparagraph (1) (a), of the operative part of the Judgment, as I agree that the Court, on the basis of Article 36 (2) of the Court's Statute, has jurisdiction to adjudicate upon certain of the issues unilaterally presented by Cameroon. I share the view expressed in the Judgment concerning the interpretation and application of the Optional Clause of the Statute.

I have given this opinion the title of "separate" opinion, rather than "dissenting" opinion, mainly because, in spite of my negative votes on some points relating to admissibility, I support, in general, the Court's jurisdiction to entertain certain of the claims in Cameroon's Applications.

2. I also voted in favour of subparagraph (4), as I believe that some, but not all, of the issues in the Application are admissible. But I cast my vote on some of the sub-sections of subparagraph (1) and on subparagraph (2) reluctantly, as the Judges are not permitted, for any reason whatsoever, to abstain from voting on the operative part of the Judgment. Otherwise I would have abstained from voting on certain of Nigeria's objections relating to the admissibility of Cameroon's application on the ground that Cameroon's claims were presented in a somewhat irregular way, as I shall explain later, while Nigeria's objections do not necessarily correspond to those claims and do not appear to have been formulated in a proper manner.

Thus, in seeking, both in the Judgment as a whole and in its operative part, to deal with Nigeria's objections in isolation, the Court has adopted an approach which, in my view, is not wholly adequate.

3. Cameroon's application lacks precision and some parts of it do not, in my view, constitute a claim which may properly be presented to the Court by a unilateral application of one of the parties to a dispute. Among the contentions that Cameroon has made, only some very limited issues can be deemed as falling within the purview of the Court's jurisdiction. Just as Cameroon's application lacks precision and is inadequate, so Nigeria's objections are also quite irregular.

The question of whether or not Cameroon's application is admissible falls irrefutably within the competence of the Court. Although the Court is still at the jurisdictional phase due to Nigeria's presentation of preliminary objections, it does not necessarily have to restrict itself to a discussion of Nigeria's objections, but must also examine more carefully, on its own initiative, the substance of Cameroon's application.

In addition, Nigeria, in raising a number of preliminary objections, seems to have confused the question of admissibility of the claims with the matters to be argued at the merits stage. Thus the Court is faced with an extremely difficult situation at this jurisdictional stage of the case.

4. The Court should have attempted proprio motu to scrutinize whether [p 330] or not any of Cameroon's claims made in its Application are admissible — with or without reference to Nigeria's objections.

II. CAMEROON'S APPLICATION AS A WHOLE

5. Cameroon's position has lacked clarity from the outset. Its Application appears to me to be so irregular that, from the standpoint of the Court, it should only have been received after a number of modifications. I shall begin with an examination of the irregular aspects of Cameroon's Application itself, which causes us so much difficulty in dealing with the present case.

1. The structure of Cameroon's 1994 Application

6. On examination of the various Court documents, I note that on 29 March 1994 Cameroon filed with the Registry an Application instituting proceedings and on 6 June 1994 an Application additional to the Application instituting proceedings. Having heard Cameroon's wishes, and having also ascertained that Nigeria "had no objection to the Additional Application being treated, in accordance with the wishes expressed by Cameroon, as an amendment to the initial Application" (emphasis added), the Court decided, on 16 June 1994, to deal with these two originally distinct Applications as a single case (see Judgment, para. 5).

7. The Court's document entitled Application instituting proceedings filed in the Registry of the Court on 29 March 1994 — Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (bearing the legend "1994 General List No. 94") contains:

(I) the letter of the Cameroonian Ambassador to the Netherlands, addressed to the Registrar, dated 28 March 1994 (p. 3);

(II) the Application instituting proceedings (undated but filed in the Registry on 29 March 1994) (hereinafter referred to as "Application-I") (p. 5); and

(III) the Application additional to the Application instituting proceedings brought by the Republic of Cameroon filed in the Registry of the Court on 29 March 1994 (on which no date is indicated but which was actually filed in the Registry on 6 June 1994) (hereinafter referred to as "Application-II") (p. 77).

The confused structure of these documents produced by the Court conveys an impression of the irregularity of the case.

8. The two Applications, Application-I and Application-II, each consist of five sections (the titles of which are identical in both Applications), namely, Section I (Subject of the Dispute), Section II (The Facts), Section III (The Jurisdiction of the Court), Section IV (The Legal Grounds [p 331] upon which Cameroon Bases its Case) and Section V (Decision Requested). In each Application, the content of Section III is approximately the same. In each case the Section indicates, explicitly or implicitly if not in identical terms, that both Parties have accepted the Court's compulsory jurisdiction in conformity with Article 36 (2) of the Statute, without any reservation. By contrast, the other four Sections in both Application-I and Application-II tend to complement one another.

9. Application-I. In Section I (Subject of the Dispute), paragraphs 1 and 2 deal with the disputes relating essentially to the question of sovereignty over the Bakassi Peninsula, whereas paragraph 3, without referring to any particular dispute, mentions simply the issue of the maritime boundary in the Gulf of Guinea beyond the terminal point (namely point G) of the boundary line alleged by Cameroon in the mouth of the Cross River.

Section II (The Facts) traces the history over the past century of some parts of the boundary in the so-called "hinterland" including the Bakassi Peninsula. Mention is made solely of the land area, particularly the Bakassi Peninsula. If any frontier incidents or aggressions are mentioned here, they are limited mainly to the Bakassi Peninsula. The subject of maritime delimitation is not mentioned at all in this section.

In Section IV (The Legal Grounds upon which Cameroon Bases its Case) a great deal is said concerning Nigeria's impairment of Cameroon's sovereignty and territorial integrity, mainly in the Bakassi Peninsula, and Nigeria's violation of the prohibition of the use of force. There is no mention of the maritime boundary in this section either.

In Section V (Decision Requested) all the seven items (a), (b), (c), (d), (e), (e') and (e"), which are quoted in full in paragraph 16 of the Judgment, and on which Cameroon asks the Court to adjudge and declare, appear to relate to questions and incidents concerning the Bakassi Peninsula. Only in item (f) does Cameroon, "[i]n order to prevent any dispute arising between the two States", request the Court "to proceed to prolong the course of its maritime boundary with [Nigeria] up to the limit of the maritime zones which international law places under the respective jurisdictions", in other words, the course of the boundary of the continental shelf and the exclusive economic zone within the Gulf of Guinea.

Most of the issues mentioned throughout Application-I, except for the maritime delimitation in the Gulf of Guinea, are related mainly to the border incidents in the Bakassi Peninsula. Those issues seem to constitute the real "legal dispute" between the two States for which interim measures were indicated by the Court in 1996 (I.C.J. Reports 1996, p. 11).

It may be observed that Sections I, II, IV and V, entitled "Subject of [p 332] the Dispute", "The Facts", "The Legal Grounds" and "Decision Requested", respectively, are thus presented in a random fashion.

10. Application-II. Section I (Subject of the Dispute) deals with the question relating to Lake Chad, but in that same section Cameroon refers to the course of the boundary from Lake Chad to the sea. It is said that Nigeria's challenge to Cameroon's sovereignty took the form of "a massive introduction of Nigerian nationals into the disputed area, followed by an introduction of Nigerian security forces".

In Section II (The Facts) most of the discussion is devoted to the subject of Lake Chad, but reference is also made in paragraph 6 to the "illegal and massive presence" of Nigerian nationals in various parts along the boundary from Lake Chad to the sea. In paragraph 7 the prolonged presence of the Nigerian security forces is mentioned only in Cameroon's part of Lake Chad.

In Section IV (The Legal Grounds upon which Cameroon Bases its Case) Nigeria's alleged occupation of the territory of Cameroon is mentioned extensively, but this concerns only the part of Cameroon in Lake Chad.

Under Section V (Decision Requested), the six items (a), (b), (c), (d), (e) and (e') (which are quoted in full in paragraph 17 of the Judgment) seem to relate only to Lake Chad, but in item (f) Cameroon requests that the Court specify the frontier "from Lake Chad to the sea" in view of the repeated incursions of Nigeria into Cameroon's territory.

In Application-II, as with Application-I, the four Sections I, II, IV and V, entitled "Subject of the Dispute", "The Facts", "The Legal Grounds", and "Decision Requested", respectively, are presented in a random fashion.

11. It should also be noted that, because of the random fashion of presentation and the irregular nature of each corresponding section of Application-I and Application-II (except for Section III (The Jurisdiction of the Court)), the sections are not sufficiently interrelated. This makes the present case extremely complicated, and a proper understanding of the issues involved very difficult.

2. The submissions contained in Cameroon's 1995 Memorial

12. On 16 March 1995 Cameroon filed its Memorial within the time-limit prescribed in the Court's Order dated 16 June 1994 (I.C.J. Reports 1994, p. 104). In fact, the text of "the decision that the Court is asked to hand down" read out by the Registrar of the Court, at the President's request, at the beginning of the oral pleadings on 2 March 1998 was taken only from Section V (Decision Requested) as it appears in both Application-I and Application-II. The "submissions" made by Cameroon in its Memorial were not even mentioned on that day in the Registrar's statement.

The main part of the "submissions" contained in Cameroon's Memo-[p 333]rial is quoted in part below (the full text is quoted in the Judgment, paragraph 18). Cameroon requests the Court

"to adjudge and declare:

(a) That the lake and land boundary between Cameroon and Nigeria takes the following course: [Cameroon indicates a line from Lake Chad to the sea reflecting the alleged existing boundary provided for by treaties or international documents].

(b) That notably, therefore, sovereignty over the Peninsula of Bakassi and over the disputed parcel occupied by Nigeria in the area of Lake Chad, in particular over Darak and its region, is Cameroonian.

(c) That the boundary of the maritime zones appertaining respectively to [Cameroon] and to [Nigeria] follows the following course: [Cameroon indicates 1) a line covering the offshore area provided for in the 1975 Maroua Declaration (first subparagraph of submission (c)) and 2) a line beyond the offshore area, as indicated above, for the delimitation of the exclusive economic zone and the continental shelf (second subparagraph of submission (c))].

(d) That by contesting the courses of the boundary defined above under (a) and (c), [Nigeria] has violated and is violating the fundamental principle of respect for frontiers inherited from colonization (uti possidetis juris) and its legal commitments concerning the demarcation of frontiers in Lake Chad and land and maritime delimitation.

(e) That by using force against [Cameroon] and, in particular, by militarily occupying parcels of Cameroonian territory in the area of Lake Chad and the Cameroonian Peninsula of Bakassi, and by making repeated incursions, both civilian and military, all along the boundary between the two countries, [Nigeria] has violated and is violating its obligations under international treaty law and customary law.

(f) That [Nigeria] has the express duty of putting an end to its civilian and military presence in Cameroonian territory and, in particular, of effecting an immediate and unconditional withdrawal of its troops from the occupied area of Lake Chad and from the Cameroonian Peninsula of Bakassi and of refraining from such acts in the future;

(g) That the internationally wrongful acts referred to above and described in detail in the body of this Memorial involve the responsibility of [Nigeria].

(h) That, consequently, and on account of the material and non-material damage inflicted upon [Cameroon], reparation in a form to be determined by the Court is due from [Nigeria] to [Cameroon]." (Cameroonian Memorial, Vol. I, p. 341.)[p 334]

13. As in the Section entitled "Decision Requested" in Application-I and Application-II, these eight submissions ((a)-(h)) in the 1995 Memorial are complex and presented in a complicated manner. I am somewhat surprised to find that these "submissions" do not correspond particularly well to the "Decision Requested" (Section V) in Application-I and Application-II; nor does what Cameroon asks the Court to adjudge and declare, in its 1995 Memorial, even constitute an amendment to the "Decision Requested" in the 1994 Applications. It is thus difficult, given this confused presentation, to ascertain Cameroon's real intentions in bringing the present case before the Court.

Accordingly, I consider that Cameroon has failed to formulate adequately the issues set out under the title "Subject of the Dispute" (Section I) and "Decision Requested" (Section V) in Application-I and Application-II, respectively, which issues could have been, and indeed should have been, amplified in the "submissions" made in the Memorial. In my view Cameroon's claims require clarification, and in effect the Court is having to make good the apparent irregularities in the Applications and in the "submissions" so that they may be presented in a proper form.

14. Careful examination of the submissions discloses the following inconsistencies on points of details. Firstly, I note that

— submission (a) concerning the lake and land boundary corresponds to item (f) of Section V (Decision Requested) of Application-II;

— submission (c), second subparagraph, concerning the boundary of the maritime zone (exclusive economic zone and continental shelf) corresponds to a part of item (f) of Section V (Decision Requested) of Application-I,

and that by these submissions Cameroon simply asks the Court to specify a boundary line either on land or at sea. Submission (c), first subparagraph, concerning the boundary in the offshore area is not mentioned at all in the 1994 Application and Cameroon further contends in this connection in submission (d) that Nigeria, by contesting the course put forward by Cameroon in submissions (a) and (c), has violated and is violating the interests of Cameroon.

15. Secondly, I note that the submissions also include the actual boundary disputes, which constitute "legal disputes". Thus:

— submission (b), concerning the sovereignty over the Bakassi Peninsula and over the parcel in the area of Lake Chad, in particular over Darak and its region, corresponds to the seven items (a) to (e") inclusive in Section V (Decision Requested) of Application-I and to the six items (a) to (e') inclusive in Section V (Decision Requested) of Application-II, respectively;

— submission (e), referring to repeated incursions all along the boundary between the two countries, corresponds to the allegation set out in item (f) in Section V (Decision Requested) of Application-II, [p 335] namely that Nigeria, by using force against Cameroon and, in particular, by militarily occupying parcels of Cameroonian territory in the area of Lake Chad and the Cameroonian Peninsula of Bakassi, and by making repeated incursions all along the boundary between the two countries "has violated and is violating its obligations under international treaty law and customary law";

— submissions (e), (f), (g) and (h), concerning the alleged violation by Nigeria of its obligations under international law, the removal by Nigeria of "its military presence", the alleged "responsibility" to be borne by Nigeria, and the payment of "reparation", which are essentially related to the "legal disputes" as mentioned above, are in fact referred to in items (b) to (e") of Section V (Decision Requested) of Application-I and also in items (b) to (e') of Section V of Application-II.

III. REQUEST FOR DELIMITATION OF A BOUNDARY LINE

16. As stated above, in a part of its Application Cameroon requests the Court to specify the boundary line with Nigeria both at sea and on land, and to prolong the maritime boundary.

1. The drawing of a maritime boundary

17. My first main point is the issue of maritime matters. In this respect, Cameroon's Application and "submissions" are not entirely consistent. In its 1994 Application-I, Cameroon "[i]n order to prevent any dispute between the two States concerning their maritime boundary" requests the Court

"to proceed to prolong the course of its maritime boundary with [Nigeria] up to the limit of the maritime zones which international law places under their respective jurisdictions." (Section V, item (f); emphasis added.)

This is clearly a request solely for delimitation of the exclusive economic zone and the continental shelf between Cameroon and Nigeria in the Gulf of Guinea.

In contrast, in submission (c) of its 1995 Memorial, Cameroon not only refers to the question of the delimitation of the exclusive economic zone and the continental shelf beyond those narrow coastal areas in the Gulf of Guinea (second subparagraph of submission (c)) but also asks the Court to declare the course of the boundary in the areas at the mouth of the Cross River close to the coast (first subparagraph of submission (c)).

18. Maritime delimitation in the mouth of the Cross River. The delimitation in the offshore area at the mouth of the Cross River depends [p 336] entirely on which country, either Cameroon or Nigeria, has sovereignty over the Bakassi Peninsula. The delimitation line down to point G, as indicated by Cameroon pursuant to the Maroua Declaration of 1975, is based on the firm assumption that the Bakassi Peninsula is in Cameroonian territory.

It may well be that Cameroon's maritime boundary in the mouth of the Cross River could only be challenged by Nigeria in connection with its alleged claim to sovereignty over the Bakassi Peninsula. Otherwise the maritime boundary in the mouth of the Cross River could not be a "legal dispute". Unless the territoriality of that region is settled, the question of the maritime delimitation in this coastal sea area would obviously be meaningless. I repeat that submission (c), first subparagraph, is not per se a subject that may be presented to this Court.

Incidentally, though, I should like to reiterate that this issue concerning the frontier in the coastal sea areas in the mouth of the Cross River was not referred to or mentioned at all in the 1994 Application-I.

19. Maritime delimitation in the Gulf of Guinea. The delimitation of the exclusive economic zone and the continental shelf between neighbouring States beyond the limit of their territorial seas also cannot be an issue in the present case unless, as in the case of the offshore areas in the mouth of the Cross River, as mentioned above, the land boundary between Cameroon and Nigeria at the coast is settled by those neighbouring States. More concretely, the issue of maritime delimitation in the whole vast area of the Gulf of Guinea cannot arise independently of the territoriality of the Bakassi Peninsula. In fact the Parties have not even negotiated on such a delimitation, and no "legal dispute" has ever arisen between the two States on the delimitation of the exclusive economic zone and the continental shelf.

20. More generally, the delimitation of the exclusive economic zone and the continental shelf shall, according to the 1982 United Nations Convention on the Law of the Sea, be "effected by agreement on the basis of international law . . . in order to achieve an equitable solution" (Arts. 74 and 83).

In the event that a delimitation of the maritime boundary line for the exclusive economic zone or the continental shelf is required between neighbouring States, the firm wishes of the parties to delimit their respective areas must in general exist, and negotiation must be continued for this purpose. The relevant parties, after negotiation, may determine the line by agreement and, if they fail to agree, they may then seek a third-party judgement. However, the mere fact that the parties have not been able to reach agreement on the delimitation in their negotiations does not constitute a "legal dispute".

21. There has been no negotiation between Cameroon and Nigeria [p 337] with a view to deciding on the delimitation of the exclusive economic zone and the continental shelf, nor has a "legal dispute" arisen between Cameroon and Nigeria which might fall within the purview of Article 36 (2) of the Court's Statute.

If the Court considers that Cameroon's Application concerning the delimitation of the exclusive economic zone and the continental shelf can be entertained on the grounds that there is a "legal dispute" under the circumstances appertaining to this case, then there will be hundreds of similar disputes that could be brought to the Court from all parts of the world.

22. Over the past 20 years, I have made known my belief that maritime delimitation may be dealt with more properly by recourse to arbitration than to judicial settlement. However, I concede that the Court cannot, in principle, refuse to receive a request for demarcation of a maritime boundary if that request is made jointly by the parties. It should be noted that delimitation cases have in the past been brought to the Court by special agreement under Article 36 (1) of the Court's Statute — namely, the cases concerning the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands); the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya); the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta); the chamber case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America); the chamber case concerning the Frontier Dispute (Burkina Faso/Republic of Mali); and the chamber case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras).

23. In conclusion, Cameroon's request that the Court specify the boundary or prolong the maritime boundary stated in item (f) of Section V (Decision Requested) of Application-I and in submission (c), both first and second subparagraphs, is not a matter than can be unilaterally presented to the Court. The Court should have refused Cameroon's request, as mentioned above, as it is not competent to entertain such a unilateral application.

2. Lake and land boundary

24. The second main point that I would like to take up in connection with the drawing of a boundary line is the issue of the lake and land boundary between Cameroon and Nigeria. Item (f) of Section V (Decision Requested) in Application-II states:

"[t]hat in view of the repeated incursions of Nigerian groups and armed forces into Cameroonian territory, all along the frontier between the two countries, the consequent grave and repeated incidents, and the vacillating and contradictory attitude of [Nigeria] in regard to the legal instruments defining the frontier between the two [p 338] countries and the exact course of that frontier, [Cameroon] respectfully asks the Court to specify definitively the frontier between Cameroon and [Nigeria] from Lake Chad to the sea." (Emphasis added.)

In submission (a) Cameroon requests the Court "to adjudge and declare . . . that the lake and land boundary between Cameroon and Nigeria takes the . . . course [as indicated by Cameroon in concrete terms]".

25. The fact is that there have occurred certain incidents of trespass by Nigerian armed forces or authorities into the border areas which Cameroon claims to be its own territory, as demarcated by the existing demarcation line interpreted from the diplomatic documents or historical facts. Such disputes have been reported in a certain parcel in the area of Lake Chad and in the Bakassi Peninsula, as well as in certain other border areas.

Cameroon deems all the incidents reported in these areas to be simply trespass in its territory by Nigeria. By contrast, Nigeria may certainly refuse to accept that these incidents were trespass and may consider that the areas or locations where the incidents occurred were its own territory. These are examples of typical boundary disputes that constitute "legal disputes" and, when a "legal dispute" concerning boundary incidents is filed with the Court Registry, the Court would certainly need to ascertain whether the boundary claimed by the Applicant has been violated and whether historically or legally it is the legitimate boundary.

However, Cameroon's request that the Court definitively specify the frontier in the lake and on land is quite a different matter. Cameroon's contentions should not have concerned the demarcation of the boundary line.

The simple fact that one State wishes to specify the frontier between it and a neighbouring State does not constitute a "legal dispute" between those States. Cameroon's unilateral request for a boundary line to be indicated between its territory and Nigeria's from Lake Chad to the sea cannot be regarded as constituting a "legal dispute", in terms of Article 36 (2) of the Statute, which may be presented unilaterally to the International Court of Justice for its adjudication.

26. I do not deny that the International Court of Justice is competent to undertake the indication of a boundary line if States refer such a matter to it under Article 36 (1) of the Statute. If Cameroon had wished, with the concurrence of Nigeria, to revise its boundary which it claimed as legitimate on the basis of legal or historical title, it could have done so by means of negotiations with the latter. If such negotiations failed, the parties would then certainly be free to seek a decision of the International Court of Justice by agreement. However, this case does not come under that category. [p 339]

3. Part III — Conclusion

27. In concluding my argument in sections 1 and 2 of Part III above, I am bound to point out, first of all, that the Court's decisions requested in item (f) of Section V of Cameroon's Application-I and Application-II, respectively, and in submissions (c) and (a) in the Cameroonian Memorial, namely, to specify the course of a boundary line or the frontier — either at sea or on land — between Cameroon and Nigeria, cannot be a subject to be presented unilaterally to this Court. This is far different from a "legal dispute" which can be the object of a unilateral application in a case between States which have both accepted the compulsory jurisdiction of the Court under Article 36 (2) of the Statute.

It is not a function of any judicial organ to accede to a unilateral request for the demarcation of a boundary line, which cannot be deemed to constitute a "legal dispute", as the issues which may be brought unilaterally under Article 36 (2) of the Statute are limited to "legal disputes".

28. In this respect, item (f) of Section V (Decision Requested) in both Application-I and Application-II, as well as submissions (c) and (a) in the Memorial, should be set aside. In other words, Cameroon's request that the Court indicate a boundary line, either at sea or on land, cannot be considered as falling within the purview of the Court's jurisdiction.

As I consider that Nigeria's fourth, fifth, seventh and eighth objections relate to this point in that respect, I voted in support of those objections.

IV. THE LEGAL DISPUTES WHICH MAY BE SUBMITTED TO THE COURT

29. The only part of Cameroon's Application which can be regarded as being the presentation of a "legal dispute" under Article 36 (2) of the Statute — which the Court has jurisdiction to entertain — is related to actual incidents which took place as territorial and boundary disputes in the border lands between the two States.

I would suggest that in the present case Cameroon's Applications should have been related to the following "legal disputes":

(1) as regards the Bakassi Peninsula, which territory Cameroon claims to be its own, a great number of intrusions by Nigerian authorities has been reported as indicated in items (a) to (e") of Section V (Decision Requested) of Application-I;

(2) as regards Lake Chad, which is divided among the four countries that border on its shores, Cameroon described some incursions by [p 340] Nigerian authorities into its parcel in that area, as indicated in items (a) to (e') of Section V (Decision Requested) of Application-II; and,

(3) as regards the certain border areas from Lake Chad to the sea, Cameroon describes incursions as referred to in item (f) of Section V (Decision Requested) of Application-II.

30. These three main issues, as indicated above and as demonstrated in Application-I and Application-II, are again presented in the "submissions" of the Memorial in the following manner:

"[Cameroon] . . . request[s] that the Court . . . adjudge and declare:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) That notably . . . sovereignty over the Peninsula of Bakassi and over the disputed parcel occupied by Nigeria in the area of Lake Chad, in particular over Darak and its region, is Cameroonian.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) That by using force against [Cameroon] and, in particular, by militarily occupying parcels of Cameroonian territory in the area of Lake Chad and the Cameroonian Peninsula of Bakassi, and by making repeated incursions, both civilian and military, all along the boundary between the two countries, [Nigeria] has violated and is violating its obligations under international treaty law and customary law."

In connection with these incidents of trespass, Cameroon contended that Nigeria should bear responsibility and should pay reparation for the repeated incursions into those areas.

31. I conclude that the Court has jurisdiction to entertain Cameroon's Applications relating to the "legal disputes" arising out of the alleged intrusion by Nigeria into the territory in which Cameroon is allegedly entitled to sovereignty and territoriality; in other words, by the alleged violation by Nigeria of Cameroon's sovereignty in the Bakassi Peninsula and in a certain parcel in the area of Lake Chad, as well as in certain other border areas.

The issues of whether or not Nigeria has trespassed on territory claimed by Cameroon, namely in the Bakassi Peninsula and in the area of Lake Chad and elsewhere, and, in other words, whether or not the relevant areas where such trespass is alleged to have occurred were Cameroon's territory at the time of the incidents, and thus whether Nigeria has breached Cameroon's rights, and must bear responsibility and pay reparation for such breach, should certainly constitute the substance of the merits at a later stage of the proceedings in the present case. It would be open to Nigeria to lay claim to such areas on the basis of whatever diplomatic or historical facts might be available to it, and such a situation would be capable of constituting a "legal dispute". [p 341]

V. CONCLUSIONS

32. It may not be necessary to draw any conclusions in addition to what I have stated above. However, if I may repeat myself, Cameroon cannot bring unilaterally to the Court a case concerning simple demarcation of a boundary line either on land or at sea. In contrast, the alleged incursion by Nigeria into the alleged territory of Cameroon, for which violation of international law Nigeria may be responsible and may be liable to pay reparation, is the kind of "legal dispute" that can be unilaterally brought to the Court by Cameroon. The question of whether or not the boundary line which Cameroon has claimed is legitimate should be decided by the Court at the merits phase but, I repeat, that should not be a question of the simple demarcation of a boundary line between two States.

33. In connection with Cameroon's Application, Nigeria certainly is free to challenge the jurisdiction of the Court to entertain that Application and its admissibility. Nigeria in fact did so. I submit, however, that apart from Nigeria's objection to the Court's jurisdiction (first preliminary objection), most of the objections raised by that Party concerning the border incidents and the borderline of the territory (second, third and sixth preliminary objections) are matters that should be dealt with at the merits phase.

(Signed) Shigeru ODA [p 342]


Separate opinion of judge Vereshchetin

Argument of Cameroon that a dispute exists concerning the whole of the boundary from the tripoint in Lake Chad to the sea — Objection of Nigeria as to the existence of such a dispute — Non-exclusively preliminary character of this objection.

I voted with the majority of the Judges on all the points of the operative part of the Judgment, except point 1 (e). I am unable to vote "in favour" of that part of the Judgment because of my belief that the finding on which it is based is not duly supported by the evidence offered by the Applicant and does not stand the test of objective determination.

The onus probandi of the contention that the Republic of Nigeria disputes the entire boundary between the two States lies primarily with the Applicant, i.e., the Republic of Cameroon. In the reasoning of the Judgment, relating to the fifth preliminary objection of Nigeria, the Court rejected practically all the main arguments of Cameroon advanced in support of its contention. In particular, the Court stated that it:

"does not find persuasive the argument of Cameroon that the challenge by Nigeria to the validity of the existing titles to Bakassi, Darak and Tipsan, necessarily calls into question the validity as such of the instruments on which the course of the entire boundary from the tripoint in Lake Chad to the sea is based, and therefore proves the existence of a dispute concerning the whole of the boundary" (para. 89 of the Judgment).

The Court also held that:

"Even taken together with the existing boundary disputes, the incidents and incursions reported by Cameroon do not establish by themselves the existence of a dispute concerning all of the boundary between Cameroon and Nigeria." (Para. 90 of the Judgment.)
The logical consequence of this assessment of Cameroon's arguments would have been the upholding of the fifth preliminary objection of Nigeria, or, at the least, a finding that the corresponding objection did not have an exclusively preliminary character and therefore required further consideration by the Court at the merits stage.

Instead, the Court itself shouldered the burden of proof of the Applicant's claim, and having briefly analysed one single document — the answer of Nigeria to a question put to the Parties by a Member of the Court — reached a conclusion which, in contradistinction to its previous [p 343] reasoning, recognizes the existence of a dispute between the two States concerning the boundary as a whole. The geographical parameters of the disputed sectors of the land and lacustrine frontiers have thereby been extended to 1,600 km.

Admittedly, international contentious proceedings do not presuppose the passive reliance by the Court on the evidence produced by the litigating States. The objective determination of the existence or otherwise of a legal dispute and more so the adjudication on the substance of a dispute may require a more active role of the Court proprio motu, including questioning the Parties, taking of independent evidence, etc. However, I cannot agree with the weight given by the Court to the answer provided by Nigeria. That answer could not be determinative for so important a finding of the Court. Nor can I subscribe to the assessment of the answer made by the Court.

From the reply given by Nigeria or, more generally, from the positions taken by the Parties in the course of the written and oral proceedings, it does not necessarily flow that "the claim of one Party [relating to the entire boundary] is positively opposed by the other", as is required by the settled jurisprudence of the Court for establishing the existence of a dispute (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328).

For the Court to decide on the existence of a dispute between the two Parties as to the legal bases of the whole of the existing boundary, it must previously have been established that the Republic of Nigeria challenges the validity of the legal title to the whole of the boundary relied on by the Republic of Cameroon, or relies on a different legal title, or places a different interpretation on a given legal instrument relating to the entire boundary. None of those conclusions may be "positively" inferred from the documents or statements presented to the Court.

Indeed, Nigeria's answer recognizes that the boundary between the two States has been "fix[ed]" by "the relevant instruments (all of which pre-date the independence of Nigeria and Cameroon)". It also states that "the course of the boundary, which was well-established before independence and related United Nations procedures, has continued to be accepted in practice since then by Nigeria and Cameroon" (see the reply of Nigeria reproduced in para. 91 of the Judgment). In my view, this position, albeit cautiously and somewhat vaguely expressed, does not conflict with the position of Cameroon, according to which the existing boundary has been delimited by the legal instruments entered into by the former colonial powers and by decisions and acts of the League of Nations and of the United Nations.

The repeated statements of Nigeria to the effect that there is no dispute concerning "boundary delimitation as such" and the reserved and cautious formulations in the above-quoted answer may signify the disincline-[p 344]tion of Nigeria to unfold its legal arguments on the merits. True, they may also be viewed as evidence of the probable emergence of a broader dispute. However, the real scope of such a dispute, if any, its parameters and concrete consequences can be clarified only at the merits stage when the Court has compared the maps produced by both Parties and more fully heard and assessed the substance of interpretation placed by each Party on respective legal instruments.

This prompts the conclusion that the objection in question does not possess an exclusively preliminary character within the meaning of Article 79, paragraph 7, of the Rules of Court. At this stage, the Court cannot easily dismiss the objection of Nigeria, according to which, with the exception of the concretely defined sectors of the common frontier, "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". Moreover, in its submissions Nigeria has specified long stretches, not to say most, of the boundary, remaining outside the disputed areas (see, for example, the final submissions on behalf of Nigeria in the oral proceedings, para. 19 of the Judgment).

Thus, from the factual point of view, the competing claims of Cameroon and Nigeria over territories situated in three sectors of their common boundary, namely in the areas of the Peninsula of Bakassi, Darak and adjacent islands and Tipsan, taken together with sporadic incidents in some other sectors of the boundary, do not justify the sweeping conclusion that a dispute has already manifestly arisen concerning the whole length of the boundary between the two States. Therefore, the finding of the Court on the existence of such a dispute is not well founded on the facts of the matter. It is equally ill founded in point of law, for the Court has not objectively determined that the legal basis of the whole of the boundary is challenged by one of the Parties.

(Signed) Vladlen S. VERESHCHETIN [p 345]


Separate opinion of judge Higgins

Discretionary power of the Court concerning sequence in which it settles issues before it — Sufficiently precise character of a dispute — Whether existence of a dispute under Article 38 of the Statute — Court's powers proprio motu regarding objections to jurisdiction.

As is recalled in the first paragraph of the Court's Judgment, Cameroon on 29 March 1994 instituted proceedings against Nigeria in respect of a dispute "relat[ing] essentially to the question of sovereignty over the Bakassi Peninsula". Cameroon recalled in its Application that the delimitation of its maritime boundary with Nigeria had been partial and the two Parties had been unable to complete it. It accordingly requested the Court, "in order to avoid further incidents between the two countries, . . . to determine the course of the maritime boundary between the two States beyond the line fixed in 1975".

Nigeria, in its seventh preliminary objection, stated:

"There is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court, for the following reasons:

(1) no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula;

(2) at the juncture where there is a determination of the question of title over the Bakassi Peninsula, the issues of maritime delimitation will not be admissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law'."

In its written pleadings Nigeria advanced certain arguments to support this preliminary objection. These were further developed and elaborated in oral argument before the Court. As the Court recounts at paragraphs 104 to 108 of its Judgment, Nigeria contended that as determination of title to the Bakassi Peninsula must precede a delimitation of the maritime boundary, a claim as to the latter was inadmissible. Nigeria also stated that there had been no negotiations on any delimitation beyond the point identified as "G" in Cameroon's proposed maritime frontier line.

The Court recalls Cameroon's responses to these points at paragraph 105 and it has rendered its judgment on them at paragraphs 106 to [p 346] 110. I am essentially in agreement with what it says in paragraphs 106 to 109 but not in paragraph 110.

There is an aspect related to the first limb of Nigeria's objection which seems to me important. I refer to the question of whether there is, in fact and in law, a dispute relating to the maritime zones of Cameroon and Nigeria out to the limit of their respective jurisdictions. Nigeria, in its written and oral pleadings on its seventh preliminary objection, has focused on the alleged absence of relevant negotiations. It contends that as a matter of general international law and by virtue of Articles 74 and 83 of the United Nations Convention on the Law of the Sea, a State must negotiate its maritime boundary and not impose it unilaterally and that the Court thus lacks jurisdiction and/or the claim on maritime delimitation is inadmissible. But it may be that the real relevance of the issue of negotiation lies rather in providing an indication as to whether a dispute exists at all over this matter. This, rather than whether negotiation is a "free standing" pre-condition for bringing a claim on a maritime boundary, seems to me the real issue.

In its Application Cameroon states its purpose in seeking the maritime delimitation as the avoidance of further incidents. The Court has not been informed of any maritime "incidents" beyond the territorial seas. Further, paragraph (f) of its original Application, is in the following terms:

"In order to prevent any dispute arising between the two States concerning their maritime boundary, the Republic of Cameroon requests the Court to proceed to prolong the course of its maritime boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions." (Emphasis added.)

Whose fault it was that no agreement had been reached beyond point G, and whether the record shows that it was because of Nigeria's change of position on the Maroua Declaration or because both sides accepted that delimitation beyond G should be on a multilateral basis in order to take account of the interest of other States in the region, is in a sense beside the point. These matters, which assume a certain importance if the key issue is whether there is a duty to negotiate before bringing a maritime delimitation claim (and if so, whether this is a preliminary or substantive matter), become less pertinent if the real preliminary issue is whether a dispute exists between the parties as to the maritime boundary out to the limit of their respective jurisdictions.

An initial question that I have carefully considered is as to whether it is appropriate to be concerned about this issue at all, given that Nigeria has not chosen to advance the point in these terms. Although the Court [p 347] always may raise points of law proprio motu, it is in principle for a respondent State to decide what points of jurisdiction and inadmissibility it wishes to advance. If a State is willing to accept the Court's jurisdiction in regard to a matter, it is generally not for the Court — its entitlement to raise points proprio motu notwithstanding — to raise further jurisdictional objections. However, I think that an exception to this principle exists where the matter relates to the requirements of Article 38 of the Statute. Article 38 is not a clause to be accepted or waived by respondents at will. It prescribes the fundamental conditions for the Court to be able to exercise its jurisdiction. And it is there that the Court's function is described as "to decide in accordance with international law such disputes as are submitted to it".

The Court must always therefore itself be satisfied that a dispute exists. The Court has recalled, when pronouncing upon Nigeria's fifth preliminary objection, the various legal requirements elaborated in its case-law on the question of the existence of a dispute (see paragraphs 87-89 above). It is not necessary to repeat them here. But in my view these legal requirements should have been systematically tested in relation to the seventh preliminary objection and not just in relation to the fifth.

The record shows that it was intended by the Parties that their entire maritime frontier should be delimited. There were some discussions about the totality of such a frontier, even going beyond what came to be agreed up to point G. At the same time, the specific line that was negotiated and agreed upon, in 1975, was the line to point G. Nigeria has informed the Court, and Cameroon has not denied, that "the very first time Nigeria saw [Cameroon's claim] line, or indeed any Cameroon continental shelf or EEZ claim line, was when it received the Cameroon Memorial" (CR 98/2, p. 40).

Nigeria resiled from the Maroua Declaration and the record shows that meetings held at the Joint Expert level were understandably preoccupied with the legal status of that Declaration. The information provided to the Court also shows that there had been an intention that progress beyond point G should be on a multilateral basis, given the proximity, in particular, of Equatorial Guinea beyond that point. Possible ways to engage Equatorial Guinea in discussions had been canvassed.

It matters not whether the failure to reach agreement beyond point G was due primarily to the dispute over the status of the Maroua Declaration; or difficulties in engaging the interest of Equatorial Guinea in the delimitation; or what Cameroon terms the invasion of the Bakassi Peninsula by Nigeria in December 1993. Nor is it legally pertinent that the Parties entered into negotiations with a view to regulating the whole of the boundary, or even that there were some discussions about the frontier beyond point G. These elements are indeed relevant to the issue as [p 348] formulated by the Parties — namely, whether there is an obligation to negotiate before bringing a maritime boundary claim to the Court, and if so, if that is a procedural or substantive matter, and if the former, to whom fault may be attributed and whether there are circumstances in which negotiations became impossible and thus legally unnecessary.

But whether there exists a dispute or not is a different question and is "a matter for objective determination" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). Quite different elements from those the Parties have debated apply. There has to be a "claim of one party [that] is positively opposed by the other" (South West Africa cases, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). It is not sufficient for this purpose to say that as the Bakassi Peninsula is disputed, it necessarily follows that the maritime boundary is in dispute. And, in contrast to the position with regard to the land boundary, there is (beyond point G) no existing treaty line which constitutes the claim of one Party and which the other Party — even by implication — appears not to accept. No specific claim line beyond point G had, before the institution of these proceedings, been advanced by Cameroon and rejected by Nigeria.

The fact that Nigeria and Cameroon have not been able to have detailed negotiations, still less agreement, beyond point G does not mean that there exists a dispute over H to K. Indeed, Nigeria has offered no opinion on where the line should run after point G.

What the Court will decide on the merits as to title over the Bakassi Peninsula will inevitably have implications for the drawing of the maritime boundary out to the limits of the jurisdiction of the two States. This is so whether the decision would favour Cameroon or Nigeria. The Court has no way to know whether any specific line that might, as a consequence, be proposed by one Party would be accepted or rejected by the other. The point is not that a maritime boundary cannot be drawn before the territorial title to Bakassi is determined and, as Nigeria contends, a request to the Court to determine the line must be rejected as inadmissible. As the Court correctly says, the handling of the territorial and maritime elements would be within its own discretion and cannot be the basis of a preliminary objection (para. 106). The point rather is that the claim as formulated in Cameroon's Application at paragraph (f) is unattached to a defined dispute and thus also lacks a certain reality. [p 349]

Nor can it be the case that where there is jurisdiction over a territorial dispute, and the parties have in consequence (and perhaps also for other reasons) not been able to agree a maritime boundary, there is ipso facto and without need to show anything more, a dispute over the entirety of their maritime boundary to the limits permitted under international law. Such a contention — had it been formulated this way — would both have been inconsistent with the Court's jurisprudence on the concept of a dispute for purposes of Article 38 of the Statute, and have disturbing policy implications.

It is because paragraph 110 has not satisfied me on this matter, and notwithstanding my agreement with the rest of what the Judgment has to say on Nigeria's seventh preliminary objection, that I have had to vote against paragraph (g) of the dispositif.

As I believe the Court presently has no jurisdiction over the question of maritime delimitation beyond point G, Nigeria's eighth preliminary objection thus becomes without purpose and falls away, and the Court's response to it too. It is for that reason, and that reason only, that I have voted against paragraph 2 of the dispositif. My views on the seventh preliminary objection have certain consequences for the eighth. But I do not otherwise disagree with what the Court has to say at paragraphs 115 to 117.

(Signed) Rosalyn HIGGINS [p 350]


Separate opinion of judge Parra-Aranguren

Nigeria’s fourth preliminary objection — The determination of the States "affected" by the decision of the Court belongs to the merits — It cannot be left to the Parties but must be made by the Court — The decision, at the jurisdictional stage, that the interests of Chad are not affected, precludes the possibility of its eventual subsequent intervention according to Article 62 of the Statute of the Court — The objection does not have, in the circumstances of the case, an exclusively preliminary character.

1. I have voted against subparagraph 1 (d) of the operative part of the Judgment rejecting the fourth preliminary objection raised by Nigeria for the following reasons:

2. Nigeria's fourth preliminary objection requests the Court not to determine in these proceedings the boundary in Lake Chad to the extent that that boundary constitutes or is determined by the tripoint Nigeria-Cameroon-Chad in Lake Chad, because its location affects a third State, the Republic of Chad. Nigeria also stated that the matter raised by its objection is not affected whether it

"is considered as one going to the Court's jurisdiction (on the analogy of the principle in the case concerning Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32 as applied by the Court, most recently, in the case concerning East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90) or as to the admissibility of the proceedings (on the analogy of cases such as the case concerning Northern Cameroons, I.C.J. Reports 1963, p. 32)" (Preliminary Objections of the Federal Republic of Nigeria, p. 84, para. 4.11).

3. The question of third States "affected" by the decision on the merits was examined by the Court in its Judgment of 26 November 1984 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility. On that occasion it was stated that:

"this is a question concerning matters of substance relating to the merits of the case: obviously the question of what States may be 'affected' by the decision on the merits is not in itself a jurisdictional problem" (I.C.J. Reports 1984, p. 425, para. 76).

4. I am in agreement with the principle embodied in the above quotation. I therefore support paragraph 78 of the Judgment, in which it is maintained that Nigeria's claims to Darak and adjacent islands could [p 351] bring about a redetermination of the situation of the tripoint Nigeria-Cameroon-Chad in Lake Chad, and that these claims cannot be considered by the Court at this stage of the proceedings.

5. I cannot accept, however, the statement at the end of paragraph 78, in which it is concluded that the Court, in due course, will be in a position to take its decision regarding the redetermination of the tripoint Nigeria-Cameroon-Chad "without pronouncing on interests that Chad may have, as the Court will demonstrate hereafter". This statement clearly runs counter to the jurisprudence of the Court in the Nicaragua case, as quoted above, which I consider correct. Accordingly, in my opinion it is not possible for the Court, at this stage of the proceedings, to decide whether or not the redetermination of the tripoint Nigeria-Cameroon-Chad in Lake Chad may be made "without pronouncing on the interests that Chad may have".

6. Paragraph 79 of the Judgment repeats that the request made by Cameroon to

"'specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea' (para. 17 (f)) of the Additional Application), may affect the tripoint, i.e., the point where the frontiers of Cameroon, Chad and Nigeria meet";

and in order to demonstrate why the legal interests of the Republic of Chad are not affected the Court states:

"However, the request to specify the frontier between Cameroon and Nigeria from Lake Chad to the sea does not imply that the tripoint could be moved away from the line constituting the Cameroon-Chad boundary. Neither Cameroon nor Nigeria contest the current course of that boundary in the centre of Lake Chad as it is described in the 'technical document of the demarcation of the . . . boundary . . .' mentioned in paragraph 65 above . . . Any redefinition of the point where the frontier between Cameroon and Nigeria meets the Chad-Cameroon frontier could in the circumstances only lead to a moving of the tripoint along the line of the frontier in the Lake between Chad and Cameroon. Thus, the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered on the merits of Cameroon's Application; and therefore, the absence of Chad does not prevent the Court from proceeding to a specification of the border between Cameroon and Nigeria in the Lake."

7. As stated by the Court in its Judgment of 26 November 1984, rendered in the Nicaragua case, "[c]ertainly the determination of the States 'affected' could not be left to the parties but must be made by the Court" (I.C.J. [p 352] Reports 1984, p. 425, para. 75). Consequently, in my opinion, it is not for Cameroon and Nigeria to decide whether the interests of the Republic of Chad are affected or not, as suggested in paragraph 79 of the Judgment.

8. I agree with the statement in paragraph 79 that "the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered on the merits of Cameroon's Application"; but I cannot accept that, at this stage of the proceedings, the Court can decide whether the interests of the Republic of Chad are "affected" by the determination of the tripoint Nigeria-Cameroon-Chad in Lake Chad, and in the affirmative, to what extent. Such a determination is a matter for the merits, as decided by the Court in the Nicaragua case, because "it is only when the general lines of the judgment to be given become clear that the States 'affected' could be identified" (I.C.J. Reports 1984, p. 425, para. 75).

9. I am in agreement with paragraph 81 of the Judgment, when it states that "[W]hether the location of the tripoint in Lake Chad has actually to be changed from its present position will follow from the Judgment on the merits of Cameroon's Application". Therefore, it is very difficult for me to understand how the Court, at this stage of the proceedings, may also decide in the same paragraph that an eventual and unknown change of the tripoint Nigeria-Cameroon-Chad in Lake Chad "would have no consequence for Chad".

10. According to Article 62 of the Statute, "[s]hould a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene". Consequently, in stating that the interest of the Republic of Chad is not affected by the determination of the tripoint Nigeria-Cameroon-Chad in Lake Chad, as it does in paragraphs 78, 79 and 81 of the Judgment, the Court is, at the same time, precluding any possible intervention by the Republic of Chad at a later stage of the present case between Cameroon and Nigeria. In my opinion, this is a quite astonishing decision, in particular because the Court does not have the slightest idea as to what is the viewpoint of the Republic of Chad on the matter.

11. In the above-mentioned Judgment of 26 November 1984, rendered in the Nicaragua case, the Court examined in particular the reservation made by the United States, when depositing its Optional Clause declaration, to exclude disputes arising under multilateral treaties unless all parties to the treaty affected by the decision were also parties to the case; and it stated:

"since the procedural technique formerly available of joinder of preliminary objections to the merits has been done away with since the 1972 revision of the Rules of Court, the Court has no choice but to [p 353] avail itself of Article 79, paragraph 7, of the present Rules of Court, and declare that the objection based on the multilateral treaty reservation of the United States Declaration of Acceptance does not possess, in the circumstances of the case, an exclusively preliminary character, and that consequently it does not constitute an obstacle for the Court to entertain the proceedings instituted by Nicaragua under the Application of 9 April 1984" (I.C.J. Reports 1984, pp. 425-426, para. 76).

12. The reasons stated by the Court on that occasion are applicable to the fourth preliminary objection raised by Nigeria requesting the Court not to determine in these proceedings the boundary in Lake Chad to the extent that that boundary constitutes or is determined by the tripoint Nigeria-Cameroon-Chad in Lake Chad, because its location directly affects a third State, the Republic of Chad. Accordingly, in my opinion, the Court should have declared that the objection does not have, in the circumstances of the case, an exclusively preliminary character.

(Signed) Gonzalo PARRA-ARANGUREN [p 354]


SEPARATE OPINION OF JUDGE KOOIJMANS

Whether there is a dispute between the Parties as to the continuation of the maritime boundary beyond point G — No specific claim raised by Applicant at date of filing of Application which was positively opposed by Respondent — Seventh preliminary objection should have been partially upheld — Eighth preliminary objection consequently without object — Judicial propriety, unilateral application and rights and interests of third States in cases of delimitation of maritime boundary.

1. I have voted in favour of paragraphs 3 and 4 of the dispositif, which state that the Court has jurisdiction to adjudicate upon the dispute and that Cameroon's Application is admissible. That does not mean, however, that I support the Court's findings with regard to each and every preliminary objection raised by Nigeria. I voted against the Court's conclusion in subparagraph 1 (g) that the seventh preliminary objection must be rejected. Consequently, I had to vote also against the Court's conclusion in paragraph 2 that the eighth preliminary objection does not have, in the circumstances of the case, an exclusively preliminary character. In the following I wish to set out my viewpoints with regard to these matters.

2. In its seventh preliminary objection, Nigeria submitted that there is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court. In this respect, Nigeria relied on two arguments; in the first place it contended that no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula. I fully share the Court's view that, since Cameroon has also requested the Court to decide on the question of the title to the Bakassi Peninsula, the issue raised by Nigeria is a question of method and that it lies within the Court's discretion how to deal with these two issues (para. 106 of the Judgment).

3. Nigeria's second argument is that the issue of maritime delimitation is inadmissible in the absence of sufficient prior negotiations with regard to the maritime boundary beyond point G. Nigeria does not contest that extensive negotiations have taken place with regard to the course of the boundary from the landfall on Bakassi to point G; these negotiations led to the Declaration of Maroua, the binding character of which is contested by Nigeria. Nigeria does not deny, therefore, that there is a legal dispute between the Parties concerning that part of the boundary. It contends, however, that there never have been serious negotiations on the [p 355] determination of the boundary between point G and "the limit of the maritime zones which international law places under the Parties' respective jurisdiction", whereas such negotiations are prescribed by Articles 74 and 83, paragraphs 2, of the 1982 Convention on the Law of the Sea.

4. I am of the opinion that, whatever must be held of the interpretation of these Articles of the Law of the Sea Convention with respect to the necessity of prior negotiations before a maritime delimitation issue may be unilaterally submitted to third party settlement, such negotiations must have the possibility of leading to an agreement. In the present case, negotiations clearly could not have led to a positive result. The dispute which has developed on the legal value of the Maroua Declaration may be said to have made negotiations on the sea-ward continuance of the line agreed upon in that Declaration futile. And this situation has been aggravated by the subsequent dispute about the legal status of the Bakassi Peninsula. If negotiations cannot lead to results, they cannot be seen as a necessary pre-condition in the meaning of Articles 73 and 84 of the 1982 Convention, even if these Articles were to be interpreted as making such negotiations indispensable.

5. Nigeria further contends that the negotiations leading to the Maroua Declaration only dealt with the delimitation of what both Parties at the time considered to be their territorial sea and that the bilateral negotiations were never intended to cover also the delimitation of the exclusive economic zone and the continental shelf (NPO, p. 119; CR 98/2, p. 41). Whatever the character, and in particular, the intensity of such more general negotiations, Cameroon's claim that the negotiations which had taken place since 1970 had always been carried out with a view to delimiting the whole of the maritime boundary, is in my view correct. This is borne out by the fact that already in the Declaration of the Nigeria-Cameroon Joint Boundary Commission of June 1971 it is stated that the delimitation of the maritime boundary should be done in due course to include the delimitation of the boundary in the continental shelf in accordance with the 1958 Geneva Convention on the Continental Shelf (NPO, Ann. 21, p. 240). Moreover, even at that early moment, it was recognized that:

"since the Continental Shelves of Nigeria, Cameroon and Equatorial Guinea would appear to have a common area, the attention of the Heads of State of Cameroon and Nigeria should be drawn to this fact so that appropriate action might be taken" (ibid., Ann. 21, p. 241).

At a later stage, even after the breakdown of the negotiations as a result of the dispute over the Maroua Declaration, such appropriate action was specified as taking the form of a "tripartite meeting to examine the issue [p 356] of the determination of the triple point as an essential condition for the delimitation of the maritime borders between the three countries (Third Session of the Nigeria-Cameroon Joint meeting of Experts on Boundary Matters, August 1993, NPO, Ann. 55, p. 3).

6. Although I share the Court's view that the alleged absence of sufficient prior negotiations is no impediment for the admissibility of Cameroon's claim, I cannot follow the Court when it says that it, consequently, rejects the seventh preliminary objection in its entirety. In this respect, it is necessary to recall Nigeria's formulation that there is no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court (emphasis added). The Statute of the Court explicitly states that its jurisdiction is concerned with the decision on disputes (Art. 38, para. 1 and Art. 36, para. 2; the latter is also applicable in the present case). For the Court to have jurisdiction it is therefore of vital importance to determine whether there is a dispute and in the affirmative case to identify such dispute. As Professor Rosenne says:

"The function of the concept of dispute is to express in a legally discrete term the matter in connection with which the Court is empowered to make a judicial decision having final and binding force on the parties.”FN1

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FN1 Shabtai Rosenne, The Law and Practice of the International Court, 1920 - 1996, 1997 , p. 519.
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And the Court itself stated in the Nuclear Tests cases:

"The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270-271, para. 55.)

7. During their history, the present Court and its predecessor have given great attention to determine what a dispute, which lends itself for judicial decision, is. Their findings have been recalled in the present Judgment (para. 87) where the Court deals with the fifth preliminary objection. The Court there refers to the South West Africa cases where it stated that "[I]t must be shown that the claim of one party is positively opposed by the other" (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). It also referred to another statement by the Court, namely "[W]hether there exists an international dispute is a matter for objective determination" (Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). Both statements were recently repeated in the Judgment in the East Timor case (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22). After a painstaking analysis, the Court came with [p 357] regard to the fifth preliminary objection to the conclusion that a dispute exists between the two Parties, at least as regards the legal bases of the whole of the existing boundary, although it is not yet possible to determine its exact scope. I fully subscribe to that conclusion.

8. In my view, the Court should have applied the same criteria with regard to the question whether a dispute exists between Cameroon and Nigeria as to the delimitation of the maritime boundary from point G to the outer limit of the various maritime zones. It is undoubtedly true that Nigeria has not raised this point as a separate argument and that, consequently, Cameroon has not seen fit to try and define the exact subject-matter of this dispute. This does, in my opinion, not relieve the Court of the task to determine proprio motu whether there exists a dispute which is the subject of the Application. As the Court said in the South West Africa cases:

"A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence." (South West Africa, Preliminary Objection, Judgment, I.C.J. Reports 1962, p. 328), whereupon the Court, independently of the arguments of the Parties, decided that a dispute existed. It is therefore for the Court to "objectively determine whether there exists an international dispute".

9. In its Application, filed on 29 March 1994, Cameroon requested

"the Court . . .

(f)In order to prevent any dispute arising between the two States concerning their maritime boundary to prolong the course of [this] boundary with the Federal Republic of Nigeria up to the limit of the maritime zones which international law places under their respective jurisdictions."

No further legal grounds for this request nor any other details underpinning it were provided in the Application which, therefore, hardly seems to meet the conditions of Article 38, paragraph 2, of the Rules of Court as far as this part of the claim is concerned.

In its Memorial, dated 16 June 1994, Cameroon specified its request by asking the Court to adjudge and declare:

"(c) that the boundary of the maritime zones appertaining respectively to the Republic of Cameroon and to the Federal Republic of Nigeria follow the following course:
………………………………………………………………………………………………
— from point G that boundary swings south-westward in the direction which is indicated by points G, H, I, J [p 358] and K, represented on the sketch-map on page 556 of this Memorial and meets the requirements for an equitable solution, up to the outer limit of the maritime zones which international law places under the respective jurisdiction of the two Parties".

On page 556 of the Memorial a map was reproduced entitled "La Dιlimitation Equitable" on which the various points mentioned in the submissions were indicated; an explanatory memorandum on the location of these points is contained in paragraphs 5.107 till 5.128 of the Memorial.

10. The critical date for the Court having jurisdiction and for the admissibility of an Application and, therefore, of the determination of the existence of a dispute is that of the Application's filing. This has been the established jurisprudence of the Court and has been recently confirmed in the Judgment on the Preliminary Objections in the Lockerbie case (Libya v. United States of America, 27 February 1998, paras. 36 and 43). Can it really be said that at the day the Application was filed there was with regard to the maritime boundary beyond point G a claim of Cameroon which was "positively opposed" by Nigeria, a "disagreement on a point of law or fact, a conflict of legal views or interests" between the Parties?

11. Although Nigeria did raise the matter of the non-existence of a dispute only in the context of an alleged absence of prior negotiations, it nevertheless drew the Court's attention to the fact that it had never been presented with a specific claim by Cameroon with regard to the continuation of the projected boundary line beyond point G. In its preliminary objections it stated:

"Nigeria for its part has not yet had the opportunity to consider, in the context of diplomatic negotiations, any proposal for the delimitation of the respective maritime zones . . . beyond 'point G'. It learned of Cameroon's actual position as to delimitation beyond 'point G' only when it received the Memorial." (NPO, p. 120, para. 7.15.) (Emphasis added.)

12. If Rosenne is correct in saying that the existence of a dispute may be established from the examination of the positions of the Parties, as expressed in the diplomatic history of the matterFN2, what more do we learn from that diplomatic history than that there is a clear disagreement about the location of point G, the starting point of the "prolonged" maritime boundary, and the fact that the Parties agree that for the delimitation of their maritime zones the involvement of third countries, in particular [p 359] Equatorial Guinea, is essential to the delineation of their maritime borders (NPO, Ann. 55, p. 465), an understanding which was confirmed as late as 1993, long after the dispute about the binding character of the Maroua Declaration emerged?

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FN2 op. cit., p. 519
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How can the subject-matter of such a dispute be described in legal terms? What are the opposing legal claims which empower the Court to make a judicial decision having final and binding force on the Parties? Can it really be said that there "is a legal dispute which is at the present time appropriate for resolution by the Court?"

13. It deserves mentioning also that — in so far as there would be a dispute as to the "prolonged" boundary beyond point G — the whole issue is obfuscated by the fact that it is exactly the contested location of point G which is determinative for the settlement of that dispute. Now it may be said that this is as much a matter of method as the relationship between the disputed title to Bakassi and the initial leg of the maritime boundary up till point G and that the order in which the various issues will be dealt with lies within the discretion of the Court. Here, however, the position of points H-K are indissolubly linked with the location of point G as established in the Maroua Declaration. Any determination by the Court, which is different from Cameroon's claim, will totally unsettle its claim with regard to the seaward continuation of the maritime boundary in case the specific claim, as rephrased in its Memorial, would be accepted as an element of the dispute.

14. All this would have been different, of course, if the two Parties had concluded an agreement to submit the matter of the determination of the maritime boundary to the Court and had been able to plead their differing or opposing views, asking the Court either to define the legal principles and rules applicable to the delimitation of the maritime zones or to determine it itself. It would have been difficult for the Court to avoid or even refuse to give such a decision, even if the constituent elements of the dispute were not worded in very clear or precise terms.

It is, however, quite another matter — and hardly desirable in my view — if the Court can be unilaterally seised by a State with the request to determine a maritime boundary in more remote zones, if negotiations with another State on the delimitation of more in-shore areas have been unsuccessful, without a clear difference of views on the legal criteria for the delimitation in these more remote zones as well.

15. For all these reasons, I am of the opinion that the Court should not have concluded that the seventh preliminary objection must be rejected in its entirety, but that it should have been partially sustained; there does not exist a legal dispute between the Parties as to the continua-[p 360]tion of the maritime boundary beyond point G, as is required by Article 36, paragraph 2 of the Statute.

16. This position has also its consequences for my vote on the eighth preliminary objection. I share the Court's view that the problem of rights and interests of third States only arises for the prolongation of the maritime boundary seawards beyond point G and that the dispute as to the boundary between the landfall on the Bakassi Peninsula and point G does not concern the rights and interests of third States (para. 115 of the Judgment).

Since in my opinion the Court should have refrained from taking upon itself the task of determining the maritime boundary beyond point G by partially upholding the seventh preliminary objection, I could not vote for the Court's conclusion with regard to the eighth objection either, since this objection, in my view, should have been declared without object.

17. This may not be interpreted as implying that I disagree with the Court's finding that an objection of this character in se does not possess an exclusively preliminary character and can only be decided upon in connection with the merits.

I feel, however, that in the present case the Court, for reasons of judicial propriety, could or even should already in limine litis have sustained this objection instead of reserving that possibility for the phase of the merits.

18. Nigeria, in its eighth preliminary objection, stated "[t]hat the question of maritime delimitation necessarily involves the rights and interests of third states and is inadmissible beyond point G".

In the present Judgment the Court

"notes that the geographical location of the territories of the other States bordering the Gulf of Guinea, and in particular Equatorial Guinea and Sao Tome and Principe, demonstrates that it is evident that the prolongation of the maritime boundary between the Parties seawards beyond point G will eventually run into maritime zones where the rights and interests of Cameroon and Nigeria will overlap those of third States. It thus appears that rights and interests of third States will become involved if the Court accedes to Cameroon's request” (para. 116; emphasis added).

This leads the Court to the conclusion that it

"cannot rule out the possibility that the impact of the Judgment required by Cameroon on the rights and interests of third States could be such that the Court would be prevented from rendering it in the absence of these States . . ." (ibid.).

The pivot on which everything hinges, therefore, seems to be the willingness of such third States to exercise their right to intervene under Article 62 of the Statute in the present proceedings. [p 361]

19. In the case of the Continental Shelf (Libyan Arab Jamahiriya/Malta) the Court stated that it

"has not been endowed with jurisdiction to determine what principles and rules govern delimitations with third States, or whether the claims of the Parties outside that area prevail over the claims of those third States in the region".

This was the logical conclusion of the Court's finding that its decision

"must be confined to the area in which, as the Court has been informed by Italy, that State has no claims to continental shelf rights. The Court, having been informed of Italy's claims . . . thus ensures Italy the protection it sought" (I.C.J. Reports 1985, p. 26, para. 21; emphasis added).

20. In delimitation of maritime boundary-cases, therefore, knowledge of the view-points of third States involved is quintessential for the Court to enable it to perform its judicial task as requested by the Parties if an application has been brought by Agreement. That would be even more so with regard to the position of Equatorial Guinea, if the present case had been brought by Agreement, in view of the fact that both parties had considered the determination of the triple point an essential condition for the delimitation of the maritime borders between the three countries. If there had been an Application by agreement, the present case would, apart from geographical factors, have reflected the Libya/Malta case.

21. The present case, however, has been brought by unilateral application under Article 36, paragraph 2 of the Statute. The Applicant requests the Court to determine the maritime boundary with the Respondent, whereas it has itself, together with the Respondent, admitted that such delimitation requires the involvement of, and thus negotiations with, a third State. Under such conditions it does not seem proper or reasonable to 'compel' that third State to expose its views and its position by means of an intervention under Article 62 even before negotiations with the neighbouring States have begun. Of course, the third State is free not to intervene but in that case the Court could — and in the present case in all probability would — be prevented from rendering the judgment required by the Applicant. Since there is no agreed request by both Parties, considerations of judicial propriety could in the present case have led the Court to the decision to uphold the eighth preliminary objection in the preliminary phase of the proceedings.

(Signed) Pieter H. KOOIJMANS [p 362]


Dissenting opinion of Vice-President Weeramantry

Article 36, paragraphs 2 and 4 and Article 38, paragraph 1 (c), of the Statute — Need for communication of acceptance before consensual relationship is formed — Duty imposed on Secretariat by Article 36, paragraph 4 — Use under Article 38, paragraph 1 (c) of comparative law perspectives regarding formation of consensus — Need for time interval between deposit of declaration and formation of consensual bond — Avoidance of surprise to party sought to be bound — Strengthening of Court's jurisdiction through due compliance with Article 36, paragraph 4.

I have some reservations in regard to the Court's conclusions on objection 1. Since the principles involved are of considerable importance to the jurisprudence of the Court, I consider it necessary to set out these reservations in some detail.

Briefly stated, my concerns centre on the proposition that the deposit of a declaration under Article 36, paragraph 2, of the Statute is all that is required to establish the necessary consensual bond under the Optional Clause. It follows from this proposition that the moment a declaration is lodged under Article 36, paragraph 2, the party lodging the declaration has the right to bring another declarant to Court, irrespective of that other party's knowledge that such declaration has been lodged. It seems to me that such a proposition cannot be in conformity with either the express law or the essential philosophy governing the optional clause.

Such a view negates a specific provision of the applicable law which is contained in Article 36, paragraph 4, of the Statute, and runs contrary to the philosophy of consensus on which the structure of the Court's jurisdiction, as well as of this particular provision, is based. It is also in disharmony with the principles of equality, fairness, good faith, and reciprocity. Moreover, it results in the rather incongruous situation that, during the interim period between the filing of the declaration and the communication of this fact, there is great inequality between the parties in relation to their practical right of access to the Court. The right to take one's adversary to court is, in any circumstances, a valuable right. It is rendered all the more valuable — and inequitably so — if one's adversary does not know that it has a corresponding right. If such a one-sided state of affairs prevails for nearly a year — which could occur, as we have seen, owing to delays in communication by the Secretariat — so much the greater is the advantage to one party and the resulting lack of equality and reciprocity. The declarant can regulate its conduct and direct its [p 363] negotiations from the vantage point of its certain knowledge that the matter is now justiciable before the Court, while its opponent negotiates in ignorance of this vital item of information regarding its rights.

I do not think such results were within the contemplation of those who drafted the Statute of the Court, especially having regard to their particular concern with the question of communication, as reflected in the wording of the Article itself.

The authority for the proposition underlying the Court's ruling is the often-invoked Right of Passage caseFN1, but, with much respect, it seems to me that that case, though followed in the Court's subsequent jurisprudence, needs re-examination. It affects too fundamental an aspect of the Court's jurisdiction to remain as the leading authority on this question. After 40 years of development of international law, in the spheres of such concepts as fairness, reciprocity and good faith, so sweeping a hypothesis as the immediate creation of a right to sue, regardless of the other party's knowledge thereof, is much in need of review.

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FN1 Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, I.C.J. Reports 1957 , p. 125.
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***

A word is necessary regarding the facts of this particular case. Nigeria had filed its Declaration in 1965. Cameroon filed its Declaration on 3 March 1994, and made its application to the Court three weeks later. The Secretary-General did not communicate Cameroon's Declaration for nearly a year, and Nigeria states that it first received formal intimation of Cameroon's Application from the Registrar on 29 March 1994.

Cameroon relies on informal references to such a possibility in the communications between the States, and on other sources from which Nigeria might have gleaned this information. In dealings between States on a matter of such importance and formality, one would require something more than a communication which is both informal and indefinite. The question arises whether, in any event, the announcement of the declaration in the Journal of the United Nations would have been sufficient notice to Nigeria of the Declaration of Cameroon. It is necessary to observe in this connection that not every mission in the United States is so well-equipped with professional personnel that it can keep a tab on all the treaties deposited and link up the declarations under Article 36, paragraph 2, with their country's immediate concerns. Such a view would operate harshly on the less well-equipped missions at the United Nations.[p 364] I cite, in this connection, the following passage from Rosenne's work on The Law and Practice of the International Court of Justice:

"An announcement of the deposit of a declaration is published immediately in the Journal of the United Nations issued on each weekday in New York. That announcement is made for information purposes. It is accompanied by a footnote specifying that the date indicated is the date of receipt of the relevant documents, meaning that the documents will have to be reviewed for determination as to the actual deposit. Given the Court's interpretation of Article 36, paragraph 4, this announcement is not a satisfactory method of bringing the deposit of a declaration to the immediate notice of the parties to the Statute, since the Journal of the United Nations is not a document of general circulation but rather the day's work programme in United Nations Headquarters in New York. Permanent Missions in New York are unlikely to appreciate the significance of announcements of this character appearing in the Journal.”FN2

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FN2 The Law and Practice of the International Court of Justice: 1920 - 1996 , 1997, Vol. II, p. 759.
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***

I shall now deal with the reasons why I consider the Right of Passage decision to be in need of review, commencing with the strictly legal provisions, and moving thereafter to the conceptual reasons underpinning them.

That decision, which receives endorsement from the Court's Judgment in the present case, holds that:

"A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned. "FN3

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FN3 I.C.J. Reports 1957 , p. 146.
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My first point of disagreement with the Right of Passage case is based on its unequal treatment of the two mandatory clauses contained in Article 36, paragraph 4, of the Statute. The two requisites stipulated by [p 365] Article 36, paragraph 4, are deposit with the Secretary-General, and transmission by the Secretary-General of copies to the parties to the Statute and to the Registrar of the Court. The Court, in Right of Passage, treats the first request as essential and virtually discounts the other. I do not think that two parallel statutory requirements can be treated so differently, especially when both alike are couched in imperative terms.

Secondly, it is an important rule of statutory interpretation that all words in the instrument under interpretation should, as far as possible, be given full efficacy. The Court must necessarily avoid any interpretation which would reduce important words or clauses in the Statute to mere surplusage which has no legal effect whatever. Under the Right of Passage interpretation, the words "who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court" might as well have been omitted from the Statute. Such an interpretation does not seem to me to be in conformity with the recognized rules of legal interpretation. The Court is under a duty to render effective all the provisions of its Statute, rather than to encourage the disregard of sections of it by interpretations which denude them of significance or meaning.

The Court's Judgment means that if the Secretariat ignored these words completely, the legal result would still be the same. Such a view is all the more questionable when the statutory requirement is not an arbitrary imposition, but is based, as will be shown, upon well accepted universal norms and concepts pertinent to the creation of consensual relationships.

It is true this Judgment has been followed in the Court's later jurisprudence in Temple of Preah Vihear and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). However, no amount of contrary jurisprudence can override the imperative requirements of the Court's Statute and, if indeed the Statute makes such a communication compulsory, it must be treated as such.

Thirdly, one must look upon the deposit of the declaration and the communication by the Secretary-General as together constituting the composite package of conditions which needs to be satisfied to give legal efficacy to the declaration. It is clear that the first requisite must be satisfied, for, without it, there could be no question of the declaration being operative. The article in question designedly does not place that requisite alone, but couples it with another in terms which are equally mandatory.
One constituent element cannot be detached from this statutory package by a process of judicial interpretation. Nor can one element be emphasized and the other neutralized when the Statute itself gives no indications to that effect. If the juristic right fashioned by Article 36 is to [p 366] come into existence, the events attending its creation must fit the mould cast for that purpose by the governing statutory provision.

A fourth reason why the Right of Passage decision needs review is that it could well encourage the Secretariat to take a more relaxed view regarding its obligations under Article 36, paragraph 4. Since the interpretation placed by Right of Passage on the requirement of communication deprives that requirement of all effective impact upon the matter it was meant to regulate, it is not to be wondered at that the Secretariat, acting presumably on that ruling, takes its time — up to one year — in transmitting the required communication.

If, indeed, a practice of delay in communication has resulted in the United Nations from the belief that one of these imperative conditions is not imperative, despite the language of the Statute to the contrary, it is important that the practice be rectified and the procedures brought into regularity with the binding requirements of the Statute.

It is true the second of these requirements is not within the control of the party depositing the declaration, but it is to be presumed that official acts will be duly performed, the more especially where they relate to matters of such fundamental importance to the rights of States, as the voluntary surrender of some part of their sovereign autonomy — for declarations by States under Article 36 amount to no less than this. Due performance by the Secretariat of its responsibility of transmitting such copies in a matter such as this can mean nothing short of transmission of such declarations forthwith. This is yet another reason why I believe the Court should take this opportunity to review that Judgment, and stress the imperative nature of this statutory responsibility. The delay of nearly one year that has occurred in communication in this instance is not, in any event, a proper compliance with the Statute.

My fifth objection to the Right of Passage case is that it takes out of context the expression "ipso facto and without special agreement", and treats it as an indication of the point of time at which the parties became consensually bound. This provision was not intended to produce such a result, nor can it bear such a construction. What Article 36, paragraph 2, provides is that where a declaration is filed, no special agreement is necessary, as the declaration has a compulsory force of its own. Nowhere does this provision purport to indicate when that declaration becomes operative.

I would endorse what Vice-President Badawi observed of this construction in his dissenting opinion in the Right of Passage case when he criticized the isolation of the expression "ipso facto" from its context. [p 367] This led to the achievement of a result by which, in his words, "the complete idea contained in the Statute has been dismembered and disregarded"FN4.

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FN4 I.C.J. Reports 1957 , p. 157.
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As a sixth objection, I note the prejudice that the Right of Passage interpretation may cause to a party. A ruling which in effect confirms that the filing of a declaration becomes operative the very next moment after it is filed could be an embarrassment to a State which is in the process of negotiation with another. Unknown to itself, it could have the ground surreptitiously cut under its feet, perhaps after it has made some vital concession, in the belief that the matter is still under negotiation. This aspect is further developed later in this opinion.

A seventh reason is that the declaration which constitutes the act of acceptance is not a declaration in a standard form. It is infinitely variable in its terms, and the mere fact of deposit cannot be an intimation of the terms in which the declaration is framed. The party sought to be bound is entitled to know those terms. If it is held to be consensually bound, it cannot reasonably be held to be bound to terms of which it is unaware. This factor militates so strongly against the core content of the concept of consensus that even had it stood alone, it would, in my view, have been conclusive.

An eighth and final reason why, in my view, the Right of Passage decision needs re-examination is that it could have an adverse effect on the development of the Court's jurisdiction. The Court's interpretation could well result in a reluctance on the part of States to make such declarations in the first instance. Indeed, the Court's ruling in the Right of Passage case was followed shortly thereafter by the introduction of a series of reservations to declarations already filed under Article 36. For example, the United Kingdom's Declaration on 26 November 1958 excepted from the scope of its Declaration disputes

"where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court"FN5.

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FN5 I.C.J. Yearbook 1959 - 1960 , p. 255.
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So, also, India filed an amended declaration on 14 September 1959, restricting the Court's jurisdiction in respect of future applications to cases where the acceptance of the Court's compulsory jurisdiction was deposited or ratified more than twelve months prior to the filing of an application bringing the dispute to the Court FN6 .

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FN6 Ibid. , p. 242.
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[p 368]

Other States may well be expected to take similar steps to protect themselves against surprise applications if this view of the law is confirmed, while some others contemplating the filing of such a declaration may well have second thoughts on the subject. All this is not conducive to the extension of the compulsory jurisdiction of the Court.

Indeed, while the Court has been deliberating on its Judgment, Nigeria itself has taken action, on 29 April 1998, to amend its Declaration, so as to impose a time-limit of twelve months before acceptance of the Court's jurisdiction by a State becomes operative against Nigeria.

So much in regard to the interpretation of the governing statutory provision.

***

I pass now to an examination of some conceptual considerations which underlie the statutory provision and reinforce the conclusions already reached.

Since the so-called compulsory jurisdiction clause is consensual in its architecture, one must satisfy oneself that the results of the Court's Judgment are in conformity with the legal concept of consensus.

A State lodging a declaration under Article 36, paragraph 2, performs a twofold juristic act. On the one hand, it is making an offer to every other State that has not already filed a declaration that it will be bound by its terms to such State, upon that State making a declaration in accordance with Article 36. On the other hand, a declaration made in terms of Article 36 is an acceptance of the offers made by other States which have already filed such a declaration. A declaration duly made under Article 36 is thus both an offer to some States and an acceptance of the offer already made by other States.

It is true we are considering a question of international law, but this analysis shows us also that we are very much in the sphere of the law of consensual obligations, from which we draw our general principles and foundation requirements. We must not be diverted from the basic principles of this body of law, as universally recognized, by the circumstance that we are operating in the territory of international law. Where any situation in international law depends on consensus, the generally accepted principles relating to consensual obligations would apply to that situation, unless expressly varied or abrogated.

How is a consensual obligation formed? The completed legal product results from the classical process of the meeting of minds which follows from a confluence of offer and acceptance. This is accepted by most legal [p 369] systems, with the rarest of exceptions FN7. This principle is accepted alike by the Anglo-American law and the Romanistic legal systemsFN8 . There are indeed substantial differences among different legal systems regarding such matters as the status and revocability of the offer FN9, but the basic principle that the minds of offeror and offeree must meet remains unaffected by these considerations, and belongs to the common core of legal systems.

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FN7 E.g., a rare exception, which studies of comparative law note as atypical, is the Lφfte doctrine of the Scandinavian countries, under which obligations stem not from the agreement of parties but from the duty undertaken by each party in its contractual declaration. See K. Zweigert and H. Kφtz, An Introduction to Comparative Law , 2nd ed., 1984, tr. Tony Weir, p. 382. It has never been suggested that Article 36, paragraph 2, followed such a conceptual model.
FN8 Ibid. pp. 381 ff.
FN9 See P. de Cruz, Comparative Law in a Changing World , 1995, pp. 302 et seq. , regarding the general rule of revocability of offers in the common law, the general rule of irrevocability in German law, and the somewhat intermediate position of French law. See, also, S.A. Nussbaum, "Comparative Effects of the Anglo - American Offer and Acceptance Doctrine", (1936) 36 Columbia Law Review , p. 920.
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Probably the most exhaustive study available on the core content of consensus across a wide variety of legal systems is Schlesinger's monumental work on the Formation of Contracts FN10. Schlesinger would indeed appear to have anticipated cases such as the present where the Court needs to satisfy itself on the universally agreed fundamentals of consensus.

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FN10 Rudolf B. Schlesinger (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems , 2 Vols., 1968.
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One of the purposes of this study, as expressly stated therein, was to render assistance to judges of international tribunals having occasion, under Article 38, paragraph 1 (c), of the Statute of the International Court of Justice, to deal with issues relating to the formation of agreements FN11. Schlesinger was examining the "reservoir of legal concepts and precepts traditionally utilized in, and shared by, a number of national legal systems"FN12, and expressed the hope that international judges "would make ample use of the 'general principles' as prime materials for the building of a systematic body of international law"FN13 .

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FN11 Ibid. , Vol. 1, pp. 7 - 8.
FN12 Ibid. , p. 8.
FN13 Op. cit. , p. 8.
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The present case of interpretation of a statutory provision arising out of the concept of consensus or agreement is an apt occasion for the use of such scholarly research for the purposes of international law. In particular, it would be helpful in testing whether the interpretation adopted in [p 370] the Right of Passage case conforms to the "general principles" attending agreement as universally understood.

Schlesinger notes preliminarily the following general propositions:

"I A. In all legal systems under consideration, the first requirement of a 'contract', in the core meaning of the word, is the existence of an agreement, i.e., of manifestations of mutual assent on the part of two or more persons. Whether or not they are promissory in nature, these manifestations as a rule must be referable to each other. [Ibid. , p. 71.] "

"III . . .

In all legal systems under consideration, contracts are normally (although not necessarily . . .) formed by offer and acceptance occurring in an ascertainable sequence.”FN15

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FN15Schlesinger, op. cit. , p. 74. The exceptional circumstances, which are rare, are dealt with in Part Two, Section C1 of Schlesinger's work.]
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***

Once this norm of offer and acceptance is established, the next question for examination is whether the acceptance needs to be communicated. In this regard, Schlesinger observes as follows, in the section of the General Report dealing with the question:

"Is Communication of Acceptance Necessary?

The problem to be treated in this Report is connected with the offeror's interest in obtaining knowledge concerning the conclusion of the contract.

Normally, although not necessarily, such knowledge is obtained through communication, i.e., an act of the offeree aimed at bringing acceptance to the offeror's knowledge.

With the possible exception of French law, all systems under consideration agree, as a matter of principle, that communication of acceptance is necessary to bring about a contract.” FN16

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FN16 Ibid. , p. 147.
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He also observes that the differences between French law and the other systems under consideration may be more apparent than real FN17 .

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FN17 Ibid. , note 2.
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There are indeed exceptional circumstances in which legal systems do not require a specific communication of acceptance, e.g., in standard [p 371] form contracts or contracts of adhesion FN18. Vice-President Badawi, in the Right of Passage case, distinguished this category of contracts from Declarations under Article 36 in the following terms:

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FN18 Where a standing offer is made on standard terms, e.g., by a public carrier, it becomes a contract upon acceptance of the act of service, as when a passenger boards a bus. There is no room for negotiation or for individual variations of terms in such a situation, and the meeting of minds is deemed to take place when the relevant act is performed. There is no analogy between such situations and offers of acceptance of the Court's jurisdiction, which are infinitely variable in their terms.
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"Indeed, whereas the essential feature of the 'adherence' or 'accession' contract is uniformity, that of Declarations is variety and diversity. Each Declaration expresses the conditions, the purposes and the policy of the State which makes it. Furthermore, in 'adherence contracts' one of the parties in fact is in a position in which it is impossible to discuss the terms of the contract. It is obliged to contract and gives its adherence to the all powerful will of the other. In this category are included, interalia, contracts of service, contracts for transport and for insurance. What analogy can there be between such contracts and Declarations accepting jurisdiction? "FN19

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FN19 I.C.J. Reports 1957 , Dissenting Opinion, pp. 157 - 158.
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Another such exceptional category consists of postal offers, in regard to which a variety of theories have been propoundedFN20 to meet the difficulties arising from time taken in transit, revocation pending transmission, and the like. All theories have been the subject of contention, but they are all designed to meet the special difficulties arising from this particular mode of communication. There may also be cases where an unusual mode of acceptance is prescribed by the offeror, and compliance with this method obviates the need for communication, which is therefore considered to be waived FN21. It is in such cases, where good reasons exist for departure from the norm, that the law of contract waives the [p 372] requirement of communication of an acceptance. This is not such a case. Indeed, the present situation is the very opposite of the case where actual communication is waived by the law, for the Statute in fact expressly requires communication by action of the Secretary-General.

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FN20 A variety of theories have evolved in relation to acceptance of postal offers — the declaration theory (that the contract is complete as soon as the offeree has made a declaration of his acceptance), the expedition theory (that the contract is formed when a letter or telegram has been despatched accepting the offer), and the information theory (that communication of the acceptance must be received by the offeror). See de Cruz, op. cit. , p. 308. All of these are fashioned to meet the varied practical difficulties that arise in the context of postal offers. See also the reference to these theories in the dissenting opinion of Vice - President Badawi in Right of Passage over Indian Territory, I.C.J. Reports 1957 , p. 156.
FN21 As in the classic common law case of Carlill v. Carbolic Smoke Ball Co. , where an act prescribed by the offeror was considered without more to constitute acceptance. Even that case affirmed, however, that "One can not doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together" ([(1893] 1 Q.B. 256; 62 L.J.Q.B. 257). See the reference to this case in Schlesinger, op. cit. , Vol. II, p. 1309.
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Except in such exceptional circumstances, or where communication is expressly dispensed with by the parties, there is very good reason for concluding that there can be no consensus in the absence of communication of the acceptance. Without it, the offeror would be in a state of ignorance that it is bound by a contractual relationship. In the words of Nigeria, the "consensual bond" between itself and Cameroon in regard to the Court's jurisdiction "cannot be said to exist with respect to another State of whose participation in the system established by Article 36.2 of the Statute Nigeria knew nothing"FN22 . This is contrary to the considerations of fairness that should govern such relationships; and the exceptional circumstances in which a merely notional communication is deemed sufficient are not replicated in the case of Article 36, paragraph 2, declarations. Such a conclusion is strengthened further by the requirement of communication built into Article 36, paragraph 2, itself.

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FN22 Preliminary Objections of Nigeria, Vol. I, p. 40, para. 1.23.
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The procedure of deposit of the declaration with the Secretariat is clearly not tantamount to a notification to all the world, as would be the case, for example, of the deposit and registration of a deed with a Land Registry within a domestic legal system. Indeed, the Statute would not specifically require communication if the mere fact of the deposit were to be constructive notice to all the world.

An important principle involved in all of the foregoing considerations is the principle of the protection of the offeror.

I quote Schlesinger's conclusions again, in relation to the recognition by legal systems of the need for the protecting the offeror. He refers to the fact that

"most of the legal systems under consideration will in some way protect the offeror's interest in obtaining knowledge that the contract has been concluded. Such protection is given by imposing a duty on the acceptor to inform the offeror, promptly or at least within a reasonable time, of the conclusion of the contract. However, these systems differ as to the scope of the duty and the consequences of non-compliance.FN23. "

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FN23 Schlesinger, op. cit. , Vol. I, p. 148.
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I can do no better than to conclude this discussion with a reference to what Grotius himself has to say on the matter, not in his treatises on the [p 373] Roman-Dutch law, but in De Jure Belli ac Pacis itself. His conclusions are as follows:

"Whether an acceptance ought to be made known to the promisor; explanation, with a distinction

This question is also commonly raised, whether it is sufficient that the acceptance be signified, or whether, in fact, the acceptance ought also to be made known to the promisor before the promise attains its full effect.

It is certain that a promise can be made in both ways, either thus: 'I desire that this be valid, if it be accepted'; or thus: 'I desire that this shall be valid if I shall have understood that it has been accepted'. In promises which deal with mutual obligations the latter meaning is assumed, but in merely generous promises it is better that the former meaning should be believed to be present, unless something else should appear.FN24."

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FN24 Hugo Grotius, De Jure Belli ac Pacis , Kelsey (tr.), 1925, Vol. II, Bk. II, p. 338.
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Declarations under Article 36, paragraph 2, deal with mutual obligations, and there is no doubt that they fall into the category in which the offeror must know that his offer has been accepted FN25 .

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FN25 For this and other references reaching back to discussions by the mediaeval glossators upon the subject of communication of acceptance, see Weeramantry, The Law of Contracts , 1967, Vol. I, pp. 121 - 124.
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This discussion of the general principles of law relating to the formation of consensus through the process of offer and acceptance show their applicability to the matter under consideration by the Court. It indicates also how the Court's decision departs from those principles, and thereby weakens the foundation of true consensus on which the Court's jurisdiction must in all circumstances be based.

There are two ancillary matters which need some consideration to complete an examination of the matter before the Court — the need for a time interval between deposit of the declaration and the creation of the consensual bond, and the question of prejudice to a party that can result from the view of the law which the Court has endorsed.

***

A time interval between deposit of the declaration and the creation of the consensual bond provides a necessary safety cushion to ensure that the party sought to be bound by the declaration is not taken by surprise.

Scholarly writings on Article 36, paragraph 4, reinforce this point. I refer, in particular, to Shabtai Rosenne, who points out that Article 36, paragraph 4, was added at a late stage of the San Francisco Conference, and immediately became subject to interpretationFN26. Rosenne's own view is that, should the Statute ever be revised, there should be "a short interval between the date of deposit and the date on which the deposit of the instrument produces its effects"FN27. The manifest reasons for such a precaution have already been discussed. Such a view underlines the need for knowledge of the declaration on the part of the States who are to be bound. This result would follow inevitably if the terms of Article 36, paragraph 4, are to be given their natural meaning rather than the truncated meaning given to them by the decision in Right of Passage.

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FN26 The Law and Practice of the International Court of Justice: 1920 - 1996 , op. cit. , Vol. II, p. 753.
FN27 Ibid. , p. 755, fn. 56.
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Indeed, Rosenne's conviction of the need for such an interval was so strong that he made submissions to the International Law Commission in this regard when it was giving consideration to Article 78 of the Vienna Convention — a consideration which was no doubt heavily influenced by the prevailing Right of Passage jurisprudenceFN28. Indeed, that eminent jurist, in dealing with the "small time-lag before the other States become aware that the treaty is in force between them and the State depositing the instrument", suggested that this period should be fixed at 90 days, "thus allowing both for the observance of the normal administrative practices of the depositary and for receipt of the notice by the home authorities of the States concerned and the observance of their normal administrative practices"FN29.

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FN28 See (1965) Yearbook of the International Law Commission , Vol. II, p. 73, Document A/CN.4/L.108.
FN29 Ibid.
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This suggestion was meant to allow for different depositary practices, the notices being sometimes transmitted "through a government's own diplomatic posts abroad, sometimes through diplomatic posts accredited to the depositary; and sometimes by mail". The essential thrust of the recommendation was no doubt to ensure that the State sought to be bound was informed of the existence of the instrument which locked it into a consensual relationship.

I doubt very much that the interpretation of Article 36, paragraph 4, according to its natural meaning, could unsettle the Court's jurisdiction. Rather, a clarification of that provision and of the reasons underpinning it would regularize and strengthen that jurisdiction. It would also give to States making such declarations the confidence that they will not be taken by surprise, thereby reinforcing their willingness to accept the Court's optional jurisdiction.

No doubt modern methods of duplication and transmission of documents could considerably expedite this process, but it seems to me that the "small time-lag" stipulated by Rosenne is essential.

It is also relevant to refer to the full recognition accorded by Article 78 (c) of the Vienna Convention on the Law of Treaties to the necessity of communication of notifications in regard to treaties, if the recipient is to be bound. This is an application of the normal consensual rule. The Court does indeed refer to this provision, but observes that, in so far as declarations under Article 36 are concerned, the rιgime for depositing and transmitting declarations of acceptance of compulsory jurisdiction is prescribed by Article 36, paragraph 4, of the Statute of the Court (Judgment, para. 30). I respectfully agree, but that very rιgime prescribes a method of transmitting the communication, and must therefore be followed.

***

I refer finally to the question of possible prejudice to parties, which can result from the interpretation the Court lays upon Article 36.

I have already adverted to the first item of prejudice: that for the period between the deposit of a declaration and the communication of that declaration to the party who is to be impleaded, the party depositing the declaration is at an advantage over the other, in that the former is aware that the Court has jurisdiction, and the latter is not. The vesting of jurisdiction in the Court is an important juristic act with major repercussions on State sovereignty. If one party is aware of its rights under this provision, and the other is not, a disparity is created between the parties, which fundamentally breaches the basic principle of equality on which the Court's jurisdiction is premised.

This inequality can have practical repercussions on the course of the informal negotiations between parties, that precede the formal institution of an action. I believe it is in the interests of the peaceful resolution of disputes and the general principles of our jurisprudence that such informal negotiation should be encouraged and promoted, and I can only see the effect of such a ruling as inhibiting this process.

It is important that when parties are in bona fide negotiation with each other there should not even theoretically be the possibility of one of those parties filing a declaration and lodging an application before the Court almost simultaneously. This could amount, in a hypothetical case, to an abuse of the process of the Court. It is by no means implied that such is the case here, but the decision of the Court opens the door to such a possibility in the future.

It is important to international peace and goodwill that the processes of negotiation between parties be given full scope, without the fear of a sudden and unexpected termination, followed by the dragging of a reluctant respondent to the Court. The deleterious effect that could ensue in regard to the willingness of States to file an Article 36, paragraph 2, declaration at all could be damaging to the development of the Court's juris-[p 376]diction. This is an important reason why such a construction should be avoided.

In the process of bona fide negotiations, concessions are made, facts are accepted, compromises are worked out, admissions and apologies are offered. Documents embodying such acts may well be exchanged. It is important that all this should take place on a footing of openness and equality.

***

For all these reasons, I am of the view that Nigeria has made out a case of lack of consensus in regard to Cameroon's declaration under Article 36, paragraph 2, at the time Cameroon's application was filed.

An interpretation of Article 36, paragraph 4, according to its natural meaning, would result in more confidence on the part of States in making declarations under Article 36, paragraph 2. Any uncertainty as to whether consensus had been established could be removed by the prompt discharge by the Secretariat of its statutory duties under Article 36, paragraph 4, which modern methods of reproduction and communication of documents render much less labour intensive and time consuming than they were when the Statute was framed. A proper attention to this statutory obligation could result in communication within a matter of a few days, thus removing all uncertainty.

Other advantages of this view are that it would bring the operation of consensual jurisdiction within the consensual principles which lie at its very foundation, ensure fairness and reciprocity between the parties, and bring the operation of declarations under Article 36 within the express terms of the article which fashioned them.

(Signed) Christopher G. WEERAMANTRY [p 377]


Dissenting opinion of judge Koroma

Optional clause (Article 36, paragraph 2, of the Statute) — Mandatory requirements prior to invoking compulsory jurisdiction of the Court — Reliance on Judgment in Right of Passage case — Non-recognition or application of principle of stare decisis by Court — Article 59 of Statute — Article 38 of Statute establishes a hierarchy as to the application of the law — Article 36, paragraph 4, of Statute — Deposit of declaration and requirement of transmission by Secretary-General — Distinguished from Article 78 of Law of Treaties — Treaty-related communication-trend in international law — Whether time period required after deposit of a declaration before seising Court of a matter — Principle of good faith — How it should have been considered by the Court — Condition of reciprocity — Need for mutuality and equality — Submissions relating to inadmissibility of claim — Not to cross threshold of jurisdictional and admissibility phase into merits.

In its reply to the first preliminary objection by Nigeria that the Court has not been invested with jurisdiction to entertain the application by Cameroon, as the condition precedent for the Applicant to invoke Article 36, paragraph 2, of the Statute had not been met, the Court, in rejecting the objection, held that the manner in which Cameroon's Application was lodged was not contrary to Article 36 of the Statute, nor was it made in violation of any right which Nigeria may claim under the Statute or by virtue of its Declaration; and that in any event it has jurisdiction to pass upon Cameroon's Application. Since I strongly disagree with the holding that the manner of lodging the Application was consistent with the mandatory requirements of Article 36 of the Statute, that it was not made in violation of Nigeria's rights under the Statute, and that in any event the Court has jurisdiction to pass upon Cameroon's Application, I feel it incumbent upon me to set out the basis of my disagreement.

My view is that, in order to invoke the jurisdiction of the Court under Article 36, paragraph 2, of the Statute, two mandatory requirements must have been fulfilled. First, a State must have made a declaration that it recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes which fall under that provision. Second, such a declaration should be deposited with the Secretary-General of the United Nations, who is obliged to transmit copies thereof to the parties to the Statute and to the Registrar of the Court. [p 378]

Nigeria, in its first preliminary objection, stated that it had accepted the Court's jurisdiction under Article 36, paragraph 2, of the Statute on 14 August 1965, and had deposited a declaration to that effect with the Secretary-General of the United Nations on 3 September 1965; Cameroon had done likewise on 3 March 1994, and copies were transmitted by the Secretary-General of the United Nations to the parties to the Statute eleven-and-a-half months later, prior to which Cameroon had lodged its Application with the Court on 29 March 1994 instituting the present action. Nigeria claimed that it had no knowledge that Cameroon had deposited a declaration under Article 36, paragraph 2, until it was informed by the Registrar of the lodging of Cameroon's Application. In the light of the foregoing, it submitted that the requirements of Article 36, paragraph 2, read with its own declaration, had not been satisfied when Cameroon lodged its Application, in other words, that Cameroon had acted prematurely and had not satisfied the conditions necessary for the Court to be invested with jurisdiction; and that the Court accordingly lacks jurisdiction to entertain the Application.

As stated earlier, the Court rejected this line of reasoning and reached the conclusion that it has jurisdiction to pass upon Cameroon's Application. In reaching this conclusion, the Court overwhelmingly and substantively relied on the Judgment it had rendered in the case concerning Right of Passage over Indian Territory (Preliminary Objections, I.C.J. Reports 1957, p. 125).

While it is understandable that the Court should seek guidance from its previous decisions, one of the disturbing aspects of the present Judgment would seem to be the reluctance or disinclination on the part of the Court to undertake a juristic and judicial enquiry or examination of the meaning of Article 36 of the Statute — the meaning of which has been in contention between the two Parties in this first preliminary objection. To reinforce and justify its overwhelming reliance on the Right of Passage case, the Court in turn cited those cases which had been decided on the basis of the decision in the Right of Passage case, as justification for its reasoning in the present case. I am not sure whether in fact much has been gained in terms of legal clarity or in the dispensation of justice by this method of judicial accretion, as a judicial response to this particular legal problem. To illustrate the point, the Court commenced its Judgment by quoting Article 36, paragraphs 2 and 4, of the Statute and proceeded immediately to quote with approval a passage of the Court's Judgment in the Right of Passage case, as follows, that:

"by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual rela-[p 379]tion between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, 'ipso facto and without special agreement', by the fact of the making of the Declaration . . . For it is on that very day that the consensual bond, which is the basis of the optional Clause, comes into being between the States concerned."

The Court further quoted from that Judgment and stated with approval that the State making the Declaration

"is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action or inaction of the Secretary-General. Moreover, unlike some other instruments, Article 36 provides for no additional requirement, for instance, that the information transmitted by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system. The Court cannot read into the Optional Clause any requirement of that nature" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, pp. 146-147).

In paragraph 27 of the present Judgment, the Court, referring to the Right of Passage case, stated that "this Judgment is not an isolated one", and then went on to cite a series of cases that had been decided on the basis of that case. In paragraph 28 the Court dealt with Article 59 of the Statute, and acknowledged that there should be no question of holding Nigeria to decisions reached in prior cases. But reliance on the Right of Passage case continued and the Court again made reference to it in paragraph 39 of the present Judgment.

The point which is now sought to be made is the fact that the Court did not grasp the opportunity which the present case presented, as well as the circumstances surrounding it, to carry out a juristic as well as a judicial reappraisal of Article 36 of the Statute, a provision which is not only fundamental to the two Parties in this case but also pivotal in determining whether compulsory jurisdiction has been properly invoked and the Court rightfully seised of the matter. In view of the fact that this provision is so crucial to both Parties for the establishment of the jurisdiction of the Court, and in view of the fact that the Judgment in the Right of Passage case not only was rendered more than 40 years ago but has been the subject of repeated calls for reconsideration, it would have been more than timely for the Court to undertake a reappraisal both of the provision of the Statute and the Judgment itself. Regrettably the Court appears to have adopted an uncritical approach to that Judgment, basing itself mainly on the Judgment to reach its decision in the present case. Whatever may be the merits or demerits of that Judgment, and many eminent scholars of the jurisprudence of the Court have taken issue with it, [p 380] Nigeria specifically requested the Court to review the Judgment, given the circumstances of the present case, and in the interests of justice. Since that Judgment was delivered, not only have many changes taken place in the practice of States, but international law has developed in a way which should have some bearing on the Right of Passage case and on the meaning of the Article. It is my view that, while the Judgment in the Right of Passage case bears on the present case, it should not have controlled its outcome, as it would seem to have done.

Moreover, it is an important principle of this Court that it does not recognize the principle of stare decisis — the principle of binding precedent does not apply in the Court. It is also part of the Court's jurisprudence that even when legal principles are accepted by the Court in a particular case, they are not regarded as binding upon other States or in other disputes. The Court has the power and the duty to depart from previous decisions when this is necessary and in the interests of justice. To my mind, the present case before it is just such a case.

With regard to this case, it should be recalled that Article 38 of the Statute provides that the Court in deciding disputes should do so in accordance with international law, and should apply:

"(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(d) subject to the provisions of Article 59, judicial decisions . . . as subsidiary means for the determination of rules of law."

In other words the Article establishes a hierarchy as to the application of the law, and the Court is called upon to determine — to find out — what the existing law is in respect of the dispute before it and to apply that law. The Court has, on the whole shows a tendency to develop the law, to interpret the law and not to consider itself burdened or bound by previous decisions.

It is a well-established principle of international law, and one accepted by the Court's jurisprudence, that the jurisdiction of the Court is based on consent. In other words, a State may not be compelled to submit to the jurisdiction of the Court without its consent. In this regard, for the Court to assume jurisdiction on the basis of a declaration made under Article 36 of the Statute, the Court has to ensure that jurisdiction has been conferred on it; such conferment cannot be presumed. Article 36, paragraphs 2 and 4, provide as follows:

"2. The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same [p 381] obligation, the jurisdiction of the Court in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international obligation.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court."

When this provision is interpreted and given its plain and natural meaning, it follows that, for a State to be in a position to invoke the jurisdiction of the Court, under Article 36, paragraph 2, of the Statute and to seise the Court of a matter, it must first of all have made a declaration recognizing the jurisdiction of the Court; such a declaration must have been deposited with the Secretary-General of the United Nations, who should have transmitted copies thereof to the parties to the Statute and to the Registrar of the Court.

In other words, when a State makes a declaration in conformity with the Article, that State not only assumes the obligations embodied in the provision, including the obligation to accept the jurisdiction of the Court, but also acknowledges that such acceptance, if the Statute is to be complied with, can only be effected after the Secretary-General has transmitted copies of the declaration, and in the absence of such transmission, Parties to the Optional Clause system cannot be aware that another State has become a party to the system. While it is true that the object and purpose of the Optional System is to ensure advance acceptance of the jurisdiction of the Court, it is essentially the case that, by making a declaration, a State is not making a commitment to bring another party before the Court, but indicating a willingness to be brought before the Court. In the absence of the transmission of copies of the declaration, there will be no knowledge that the declarant state can be brought before the Court.

Relying on the Judgment in the Right of Passage case, where the Court had stated that "the legal effect of a Declaration does not depend upon subsequent action or inaction of the Secretary-General", and in a later case that

"The only formality required is the deposit of acceptance with the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute" (I.C.J. Reports 1961, p. 31; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 418). [p 382]

the Court took the view that to require transmission of a declaration, which would involve allowing a reasonable time to elapse before it could be said to take effect, would be to introduce an element of uncertainty into the operation of the Optional Clause, which in the opinion of the Court would not be helpful at a time when the intensification of State relations has multiplied the possibilities of legal disputes which are capable of being submitted to the Court. The Court would seem to read the obligation of the Secretary-General to transmit copies of a declaration to the parties to the Statute and to the Registrar as the introduction of an additional time requirement into the Optional Clause system.

To construe the provision in this way would mean that the obligation of the Secretary-General is not only not mandatory but even superfluous; that it is of no interest or moment whether the Secretary-General fulfils this statutory function. Not only would such a construction be contrary to the intent and clear meaning of the provision, but transmission is necessary and indispensable for the State Parties to be aware that another State has made such a declaration, thereby putting in place the consensual bond necessary to establish the jurisdiction of the Court. The functional obligation of the Secretary-General is therefore not only not superfluous but is mandatory if the Optional Clause system is to operate as it was conceived. Contrary to the Court's reasoning, in my view, transmission of the declaration by the Secretary-General would ensure the avoidance of that "uncertainty" which the Court feared would be introduced if the Secretary-General were to perform his duty in the manner prescribed in the Statute of the Court. On the contrary, it can only lead to legal security for the Parties to the Statute.

The Court, in attempting to distinguish the deposit and transmission of a declaration pursuant to Article 36, paragraph 4, of the Statute from the rιgime laid down for treaties by the Vienna Convention on the Law of Treaties, stated that Article 78 of the Convention is only designed to lay down the modalities according to which notifications and communications should be carried out; that the provision does not govern the conditions in which a State expresses its consent to be bound and those under which a treaty comes into force. This attempted distinction, it would seem to me, missed the point of Nigeria's contention with reference to that Article. Article 78 provides as follows:

"Except as the treaty or the present Convention otherwise provide, any notification or communication to be made by any State under the present Convention shall:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) if transmitted to a depositary, be considered as received by the State for which it was intended only when the latter State has been informed by the depositary . . .".[p 383]

According to Nigeria, that rule "must apply to Cameroon's Declaration."

Nigeria had argued that, since 1957, the trend in international law has been that where a State makes a treaty-related communication to a depositary for transmission to other States, those other States are only to be considered to have received it when they have been informed of it by the depositary acting in fulfilment of its obligation to inform other States of such communications; and that, although a declaration made under Article 36, paragraph 2, of the Statute is not a treaty as such, to the extent that both Parties are in agreement that such a declaration is to be treated as a treaty, then Cameroon's Declaration, made after the Vienna Convention entered into force, is subject to that provision.

For the Court to dismiss this contention by saying that Article 78 (c) does not govern the conditions in which a State expresses its consent to be bound, and those under which a treaty comes into force, does not constitute a proper response to the submission that, as the law has developed, other States are to be deemed as having received communications relating to a treaty only if the obligation to transmit has been fulfilled. As the Court is aware, consent to be bound by a treaty can be established either upon the exchange of instruments between the States Parties, on their deposit with the depositary, or on their notification to the States Parties or to the depositary. In the case of multilateral treaties, to which declarations made under the Statute can be likened in nature, the law as it has developed is that transmission of a treaty cannot be deemed to have taken place until the depositary has forwarded it to the other States. It is for this reason that Articles 16 and 24 of the Vienna Convention must be construed in the light of Article 78 (c) of the Vienna Convention of the Law of Treaties of 1969 and the principles it enunciated. In other words, declarations made under Article 36, paragraph 2, of the Statute of the Court can only be deemed to have established the consensual link between the relevant States for the purpose of the Court's jurisdiction after they have been transmitted by the Secretary-General.

The Court refers to the views expressed by the International Law Commission when it was considering the problem of the deposit of an instrument with a depositary, and reached the conclusion that the act of deposit establishes the legal nexus. Those views are correct as far as the deposit of a treaty goes; they do not impair the validity of the argument that transmission is a requirement for the establishment of a consensual bond under Article 36, paragraph 2, of the Statute. The point is not that declarations are treaties, which they are not as such, but even as unilateral acts, they establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are to be observed. Hence, although the rules of treaties do not apply to declarations as such, which are governed by the Statute, in particular Article 36, paragraph 4, on this [p 384] point both the Statute and treaty law coincide. Article 36, paragraph 4, requires the Secretary-General to transmit copies of a declaration in order to consummate the consensual bond between parties to the Optional Clause for the jurisdiction of the Court to be established. In other words, the deposit of the declaration is the beginning of the process in meeting the conditions precedent for the jurisdiction of the Court to be established, as a declaration by itself cannot establish the Court's jurisdiction, unless and until it has been deposited and transmitted by the Secretary-General. It is only after such transmission that the States that are Parties or will become Parties accept the consequence and recognise that there is jurisdiction between them and the State which has made the declaration.

Nigeria objected that Cameroon could not file an application before the Court without allowing a reasonable period to elapse "as would . . . have enabled the Secretary-General to take the action required of him in relation to Cameroon's Declaration of 3 March 1994". Nigeria, in advancing this view, had relied on the Court's Judgment of 26 November 1984 in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), in which the Court stated that a reasonable time is required for the withdrawal of declarations under the Optional Clause. In that case the Court stated, inter alia, that

"the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity" (ibid., p. 420, para. 63).

The Court considers that in this case "no time period is required" to establish a consensual bond, as opposed to a withdrawal which would bring such a bond to an end. This conclusion by the Court would seem to be at variance with the evolution of the law. Nowadays, and in spite of the Judgment in the Right of Passage case, international legal instruments tend to impose a time period for them to take effect after they have been ratified and deposited. Moreover, the conclusion of the Court when examined closely does not appear to respond to the objection as formulated. The objection was not that a reasonable time was required for the establishment of a consensual bond, but that Cameroon should not have filed its application before the Court without allowing a reasonable period "as would have enabled the Secretary-General to take action required of him in relation to Cameroon's Declaration of 3 March 1994". In other words, when could a State that has made a declaration under the Optional Clause seise the Court? One would have thought that both under the Statute and in conformity with legal principles, a reasonable time period would be required before the Court could be seised. In the [p 385] first place, under the Statute itself, a reasonable time will be required to enable the Secretary-General to transmit copies of the Declaration to the other State Parties to the Optional Clause as well as to the Registrar. Secondly, if only to prevent the allegation of bad faith, a State would surely not wish to be seen to be seising the Court so soon after it had deposited its declaration that the Secretary-General not had had time to carry out his statutory duty.

Thirdly, if a reasonable time period is not to be required for the transmission of a declaration before the filing of an action, the other States Parties to the Optional Clause would not be in a position of knowing that such a deposit has been made, that the declarant State is entitled to exercise its right, or that the other States Parties to the Statute have had such a right conferred on them and are entitled to exercise such a right as well. Hence, in my view, both under the Statute and from a position of principle, a reasonable time is required after the deposit of a declaration before the Court may be seised. Related to this matter is Nigeria's contention that, even while continuing, during the first three months of 1994, to maintain contacts with it on boundary questions, Cameroon was in fact preparing to seise the Court. Such conduct, Nigeria contends, infringes the principle of good faith and should not be accepted.

While the Court acknowledged the principle of good faith as "one of the basic principles governing the creation and performance of legal obligations . . .", but that "it is not in itself a source of obligation where none would otherwise exist", (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105, para. 94), it concluded that there is no specific obligation for States to inform other States Party to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Cameroon was not bound to inform Nigeria of its intentions. In justification of this conclusion, the Court cited with approval its statement in the Right of Passage case, that:

"A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance." (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146.)

In my view, not only is this statement too sweeping but, if applied, the effect would be not only to make the Optional Clause system confusing, but would be a risky enterprise as well. Therefore when the Court decided to follow this dictum, which it was not bound to do, it decided the matter too simply by stating that "[t]here is no specific obligation in international law to inform other States Party to the Statute that they intend to subscribe or have subscribed to the Optional Clause". Perhaps [p 386] the Court could also have viewed this matter from the perspective of what it recognises as part of its jurisprudence also, namely, the principle of good faith. As Vice-President Judge Alfaro stated, good faith must prevail in international relations, inasmuch as inconsistency of conduct or opinion of the part of a State to the prejudice of another is incompatible with good faith. (Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 42.)

Judge Sir Percy Spender thought that the principles operated

"to prevent a State contesting before the Court a situation contrary to a clear and unequivocal representation previously made by it to another State, either expressly or impliedly, on which representation the other States was, in the circumstances, entitled to rely and in fact did rely, and as a result that other State has been prejudiced or the State making it has secured some benefit or advantage for itself" (ibid., I.C.J. Reports 1962, pp. 143-144).

While the tendency of the Court has been to apply good faith only in situations where a legal obligation is said to exist, perhaps the Court could have taken a less abstract position in applying the principle to this case. For, despite the absence of a legal obligation on a State to inform another State that it intends to subscribe to the Optional Clause, the Court could have determined whether the bilateral negotiations on boundary problems which both States had been conducting created an expressed or implied representation on which one or the other had come to rely as a means of resolving their boundary problems. Instead the Court devoted its attention to considering whether or not Nigeria was aware of Cameroon's intentions to bring the matter before the Court. Nor did the Court say what effect or value should be given to the Journal of the United Nations of 4 March 1994, which it had itself introduced, and which reported that Cameroon had deposited with the Secretary-General its declaration under Article 36, paragraph 2, of the Statute recognising the compulsory jurisdiction of the Court. Is this best evidence to be substituted for the statutory obligation of the Secretary-General to transmit copies of a declaration to Parties to the Statute? If that is the intention it should be pointed out that, both for reasons of principle and of practical experience, the Journal cannot replace the statutory duty of the Secretary-General under Article 36, paragraph 4 of the Statute. Moreover, as a matter of experience, no delegation can rely on the Journal alone, susceptible as it is to so many vagaries, as an official channel for the purposes of Article 36, paragraph 2, of the Statute.

However that may be, one cannot help but observe the inconsistency in this section of the Judgment. In paragraph 30 of the Judgment, the Court [p 387] stated that the Optional Clause rιgime as prescribed by Article 36, paragraph 4, of the Statute is distinct from the rιgime laid down for treaties by the Vienna Convention. Later, however, the Court took the view that the general rule with regard to treaties equally applies to a declaration made under the Optional Clause. With respect, it cannot be both ways. As pointed out earlier, although declarations made under the Optional Clause are not to be regarded as treaties, this is not to say that the relationships which are established do not partake of the characteristics of a treaty relationship, in other words that, in certain respects, the rule governing treaty relationships would govern declarations made under the Optional Clause. This is owing to the fact that, in my view, the consensual link which is eventually established between States Parties is a result of the offer and acceptance of each other's declaration and is binding. Under Article 78 (c) of the Vienna Convention on the Law of Treaties of 1969, States are only to be deemed to have received a treaty communication such as an instrument of ratification when they have been informed of it by the depositary in the fulfilment of its obligation.

It seems to me that, when the Court stated in the Judgment in the Right of Passage case that "the day a State deposits its Declaration of Acceptance under Article 36, paragraph 2, of the Statute, a consensual bond is established with other States that have made similar or identical Declarations", this presupposes, that following the deposit of a declaration with the Secretary-General acting as a depositary, he would in turn have performed his statutory duty by transmitting copies of that declaration to the other parties. If these copies are in conformity with similar or identical declarations, the consensual bond thus established would look to the date of the deposit or the date stipulated as the date on which the bond took effect for jurisdictional title. This construction would also appear to be in harmony with Article 102 of the Charter of the United Nations, which provides as follows:

"1. 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 the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations." (Emphasis added.)

The intent of this provision "that every treaty shall be registered with the Secretariat and published by it" is, as it has been recognized, to ensure that a treaty when concluded receives publicity, as well as its contents. By parity of reasoning, when Article 36, paragraph 4, of the Statute enjoins a party to deposit its instrument of declaration with the Secretary-General, who shall transmit copies thereof, the implication is that [p 388] with transmission a State is put on notice to accept such a declaration or that its declaration made previously has been accepted. It seems to me that it is only then that a consensual bond would have been established and jurisdiction would thus have been conferred on the Court. To suggest that a declaration takes effect instantaneously and automatically without transmission, as the Court has held, would deprive other States of the knowledge that such a declaration had been made, and the consensual bond necessary and indispensable for the establishment of the jurisdiction of the Court would be missing.

The Court also held, in paragraph 35 of the Judgment, that to allow a reasonable time which the transmission of a declaration requires for it to take effect would introduce an element of uncertainty into the Optional Clause rιgime. With respect, it was this rejection of a reasonable lapse of time before a declaration could take effect in the Right of Passage case that had an unsettling effect on that rιgime, albeit unintentionally. Following that Judgment, some States which had previously made a declaration under Article 36, paragraph 2, of the Statute took measures to protect themselves against the institution of surprise proceedings by introducing further reservations into their declarations, in addition to that of reciprocity. The United Kingdom, for instance, amended its declaration to include the following reservation:

"disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court" (Yearbook 1959-1960, p. 255).

France, for its part, excluded disputes with any State which, at the date of the occurrence of the facts or situations giving rise to the dispute, had not accepted the compulsory jurisdiction of the Court.

Similar reservations have since been made by several other States to their declarations under the Optional Clause system, and the trend seems to have continued. In other words, instead of the certainty which the Court in its Judgment in the Right of Passage case predicted, the experience has been in the opposite direction. The Court indirectly acknowledged this when it stated in the present Judgment that

"if, in 1965, Nigeria had intended to protect itself against the filing of surprise applications, it could have inserted in its Declaration an analogous reservation to that which the United Kingdom added to its own Declaration in 1958. Ten or so other States proceeded in this way. Nigeria did not do so". [p 389]

In other words the Court is saying that a declaration under Article 36, paragraph 2, of the Statute involves risks for a State and that, as a result of its decision in the Right of Passage case, States have found it necessary and are deeming it necessary, in order to protect themselves against surprise applications, to take measures which they had not understood Article 36, paragraph 4, to entail when they first deposited their declarations.

It is also Nigeria's contention that, when Cameroon filed its Application on 3 March 1994, it acted prematurely and so failed to satisfy the requirement of reciprocity as a condition to be met before the jurisdiction of the Court under Article 36, paragraph 2, of the Statute could be invoked against it. Nigeria further contended that, for the consensual bond to exist between it and Cameroon under Article 36, paragraph 2, invoking the jurisdiction of the Court implies that there must exist not only "coincidence" and "reciprocity", but mutuality as well, so that each would be in the same position vis-ΰ-vis the other as that other is in relation to itself. Nigeria further claimed that, at the time Cameroon instituted its proceedings, it was in ignorance of any possibility of instituting proceedings against Cameroon; that ignorance, it claimed, resulted in the lack of reciprocity. Nigeria also claimed that the haste with which Cameroon filed its Application affected its position adversely, including its position as a Respondent before this Court, since the resources it has had to devote to these proceedings, both now and at the earlier interim measures phase, and the harassment which it has suffered from Cameroon on the international plane, have had a clear and substantial material dimension.

In answer to this contention, the Court stated, inter alia, and referred to its dictum in the Right of Passage case, that "the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute" (I.C.J. Reports 1957, p. 147; Judgment, para. 43).

Such response, with respect, does not seem to meet this particular objection of Nigeria. As I understand it, the complaint is not about the delay as such, but one of substance, namely, that reciprocity under the Optional Clause should ensure jurisdictional equality. To the extent that an application had been filed against a Party, but one which was not in a position to invoke the jurisdiction of the Court had it felt the need to do so — to that extent, the jurisdictional equality which should exist between the two Parties had not existed. Nigeria claims that, until it was informed by the Registrar of the Application filed by Cameroon, it was not in a position to file a claim against Cameroon, as it could not have been aware that Cameroon had become a party to the Optional Clause system. It seems as if the proviso had envisaged this problem and solved it by enjoining the Secretary-General to perform his statutory function of [p 390] transmitting a declaration, and, since this would allow for the receipt or acceptance of that declaration, reciprocal equality between the Parties would have thus been established.

It may be argued that the lapse of a reasonable time before a declaration would be allowed to take effect would allow a State to modify its declaration. The customary norm governing the modification is that a declaration cannot be modified after a dispute has developed. According to the Court, as stated in the Nottebohm case:

"At the time when the Application was filed, the Declarations of Guatemala and of Liechtenstein were both in force. The regularity of the seizing of the Court by this Application has not been disputed. The subsequent lapse of the Declaration of Guatemala, by reason of the expiry of the period for which it was subscribed, cannot invalidate the Application if the latter was regular: consequently, the lapse of the Declaration cannot deprive the Court of the jurisdiction which resulted from the combined application of Article 36 of the Statute of the two Declarations.
………………………………………………………………………………………………
An extrinsic fact such as the subsequent lapse of the Declaration . . . by denunciation, cannot deprive the Court of the jurisdiction already established." (I.C.J. Reports 1953, pp. 122-123.)

To sum up on this point, since Nigeria's Declaration under Article 36, paragraph 2, of the Statute was based on reciprocity, for there to have been reciprocal equality with Cameroon, Nigeria should have been in a position in which, had it wanted to invoke the jurisdiction of the Court at the same time as Cameroon filed its Application, it would have been able to do so. According to the material before the Court, it was not in a position to exercise such a right had it wished to do so, hence the element of reciprocal equality and mutuality was absent. The jurisdiction of the Court cannot be imposed on a State against its clearly expressed will.

Nigeria, in its submissions, had also asked the Court to declare that the claims brought by the Republic of Cameroon are inadmissible to the extent specified in the preliminary objections an objection based on law and fact; in other words for the Court to rule on the Application other than on its ultimate merits.

In my view, while making such a ruling, one way or the other, the Court should have resisted the temptation of what could be read as taking a position on the merits of the matter, which is still in the preliminary objection phase. As I understand the material presented to the Court, to rule on whether the entire boundary between the countries is contested or whether or not the Court is in a position to delimit the maritime boundary when the rights of third countries could be involved would not have required entering into the merits of the dispute. In paragraph 103 bis of the Judgment the Court should have made it clear that the Court's jurisdic-[p 391]tion cannot be established on the basis of a declaration made under Article 36, paragraph 2, of the Statute, if such a declaration would be contrary to the provisions of or obligations undertaken in a prior treaty otherwise than in conditions laid down in that Treaty. On the other hand, I am constrained to note that, by some of its holdings, the Court would appear to have gone too far in taking positions which may appear prejudicial when it reaches the merits phase of the matter and would in that regard have crossed the threshold on a matter which is still at the jurisdictional and admissibility phase. There is a general recognition in the jurisprudence of the Court that, during the preliminary phase of a matter before it, the Court could not preempt — even in a remote way — its order, judgment or advisory opinion on the merits of a case when deciding questions of jurisdiction.

Conclusion

In view of the reasons which I have advanced above, I regret that I cannot support the Court's holding that it has jurisdiction to pass on Cameroon's Application. The decision of the Court should have been governed by the provisions of the Statute. Jurisdiction cannot be imposed on a State

contrary to the clearly expressed provision of the Statute. The Court should not have allowed its decision to be governed by the Judgment in the Right of Passage case. It is also a matter of regret that The Court did not take this opportunity to review the decision in the Right of Passage case.

(Signed) Abdul G. KOROMA [p 392]


Dissenting opinion of judge Ajibola

Introduction: Why the case concerning Right of Passage over Indian Territory should be revisited.

First preliminary objection — Why the Court should not reject it — Questions of reciprocity — Need to re-examine the requirements of Article 36 (2) and (4) of the Statute — Contractual concept of good faith — Element of surprise and "unfriendly" act — Analysis and comparison of the Right of Passage over Indian Territory case vis-ΰ-vis this case — Differences and issue of precedent — Other compelling considerations.

Third preliminary objection — Reason for disagreement with the decision of the Court — Competence of Lake Chad Basin Commission — Whether LCBC is a regional agency within the meaning of Article 52 of the Charter — Whether LCBC is a tribunal within the meaning of Article 95 of the Charter.

Fourth preliminary objection and reason for voting in favour.

Fifth preliminary objection and reason for voting against the decision of the majority Members of the Court — Failure by the Court to address this objection as framed by Nigeria.

Sixth preliminary objection and reason for voting against the decision of the Court.

Seventh preliminary objection and reason for voting in favour of upholding the second part of Nigeria's objection — Application and interpretation of Articles 74 and 83 of the United Nations Convention on the Law of the Sea.

Eighth preliminary objection and reason for voting against the decision of the Court.

Reasons for voting in favour of the decision of the majority Members of the Court on the second preliminary objection and the first part of the Seventh preliminary objection.

Conclusion: The need for the Parties to come to Court by way of special agreement — Need for caution.


INTRODUCTION

The first preliminary objection of Nigeria, filed on 17 December 1995 in this case, gives the Court another opportunity once more to examine critically its case-law on the provision in Article 36 (2) of the Statute, and more particularly Article 36 (4), which deals with the question of the Optional Clause as it relates to the jurisdiction of the Court. Unfortunately, the Court decided to follow its case-law in the Right of Passage over Indian Territory case of 1957, which I strongly disagree with; hence my basic reason for appending this dissenting opinion to the Judgment of the Court. But in addition to disagreeing with the Court with respect to its decision on the first preliminary objection of Nigeria, in which this [p 393] case-law — decided over 40 years ago — was reaffirmed, I also express my disagreement with the decision reached by the Court on six other preliminary objections raised by Nigeria.



I. THE FIRST PRELIMINARY OBJECTION

The first preliminary objection of Nigeria is the most important objection addressed to the Court, and was extensively argued by both Parties. In fact, if the objection had been accepted by the Court, it would have disposed of the entirety of the Applications of Cameroon, filed on 29 March 1994 and 6 June 1994 respectively, and in my view the Court ought to have dismissed the Applications on the basis of this objection.

It appears to me that this first preliminary objection is fundamental and that it goes to the very root of Cameroon's Application. The objection essentially concerns the interpretation of the requirements of paragraphs 2 and 4 of Article 36 of the Statute of the Court. In order to reach a decision on whether this preliminary objection should be rejected or upheld, some relevant issues raised by Nigeria and Cameroon in their respective arguments and presentations require examination.

Among these issues are:

1. Reciprocity or coincidence as expressed in Article 36 (2) in the phrase "in relation to any other State accepting the same obligation", and the use of the word "reciprocity" in the Optional Clause Declaration of Nigeria.

2. The question of good faith and the element of surprise.

3. The requirements contained in Article 36 (4) of the Statute of the Court, namely:

"Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court." (Emphasis added.)

4. The Judgment in the case concerning Right of Passage over Indian Territory (I.C.J. Reports 1957, p. 125).

A. Reciprocity

The argument of Nigeria is that Cameroon, in lodging

"its Application on 29 March, acted prematurely and so failed to satisfy the requirement of reciprocity as a condition to be met before the jurisdiction of the Court can be invoked against Nigeria" (CR 98/1, p. 29).

Cameroon lodged its Optional Clause Declaration on 3 March 1994 and filed its Application three weeks thereafter (i.e., on 29 March [p 394] 1994), whereas Nigeria had accepted the Court's jurisdiction under Article 36 (2) of the Statute as far back as 14 August 1965.

The argument of Cameroon is that this objection raised by Nigeria is "untenable". Cameroon argues that:

"According to international law pertinent in the matter as well as the firm jurisprudence of this Court, a State party to the system of the Optional Clause may bring a case against another State party to that system immediately after the deposit of its declaration of acceptance with the Secretary-General of the United Nations." (CR 98/3, p. 47, para. 54.)

It should be noted, in this preliminary objection, that there are two aspects with regard to the use and application of the word "reciprocity": the "statutory reciprocity" embodied in Article 36 (2) of the Statute of the Court (i.e., "in relation to any other State accepting the same obligation") and the word "reciprocity" as used by Nigeria in its Optional Clause Declaration, wherein Nigeria recognizes

"as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is to say, on the sole condition of reciprocity . . ." (emphasis added).

Therefore, in order for Cameroon to invoke the jurisdiction of the Court against Nigeria it must clear the two hurdles: (a) by satisfying the request for "reciprocity" indicated by Nigeria and also (b) by satisfying the "statutory reciprocity" under Article 36 (2) of the Statute.

A careful examination of Nigeria's Optional Clause Declaration has been the subject of arguments by counsel on both sides and each has given different interpretations to the use of the word "reciprocity".

However, if words are to be given their ordinary meaning, Nigeria's Optional Clause Declaration contains a clear expression of reciprocity in terms of coincidence, when it states, inter alia, "in relation to any other State accepting the same obligation", and another requirement of reciprocity when it declares "on the sole condition of reciprocity". The former requirement is worded exactly as in Article 36 (2) of the Statute of the Court. It is therefore not enough for Cameroon to have attempted to satisfy the statutory requirement of reciprocity by filing its own Optional Clause Declaration as Nigeria had done in 1965; it must also have ensured that the same was done in good faith and not surreptitiously.

What is surreptitious about Cameroon's action? It is its failure to notify Nigeria formally (perhaps by a diplomatic note) of its intention to file this case before the Court. After all, both Parties are neighbours. There are arguments on both sides that somehow Nigeria knew about the proposed action of Cameroon, that it was announced in the media and discussed in some other forums like meetings of the Organization of [p 395] African Unity. This appears to me to beg the question. Nigeria ought to have been formally notified; in my view, this is an apparent prerequisite which Cameroon cannot ignore and which will later be elaborated upon.

B. The requirement of Article 36 (4) of the Statute of the Court

Article 36 (4) makes it mandatory for any State filing its Declaration to deposit the same with the Secretary-General of the United Nations. The Secretary-General shall in turn transmit copies thereof to the parties to the Statute and to the Court's Registrar. This paragraph was added to Article 36 during the deliberations stage in Committee IV/I at the San Francisco Conference.

Shabtai Rosenne, in The Law and Practice of the International Court, 1920-1996, referred to the commentary of Hudson on this particular point. Hudson considered,

"that the insertion of this provision into the Statute was a 'detail of housekeeping but one which, in view of uncertainties which had arisen, might prove to be useful'" (Vol. II, p. 753).

Neither Party denies that such a declaration falls within the provision in Article 102 of the Charter of the United Nations, which also requires the registration of such documents with the Secretariat. The issue here is not that Cameroon failed to register the Optional Clause Declaration with the Secretary-General but that the Declaration was not transmitted to Nigeria until nearly one year later. What then is the consequence of this lapse, having regard to the fact that Nigeria demands reciprocity? Of course, Nigeria's Optional Clause Declaration had since 1965 been communicated to all Members of the United Nations, including Cameroon, and had been published since then. Reciprocity in this context requires that Nigeria should have been informed about Cameroon's Optional Clause Declaration before its Application was filed with the Court, to avoid being surprised and to be assured that Cameroon had acted in good faith.

C. The contractual concept

In its Judgment in the Right of Passage over Indian Territory case in 1957, the Court observed that by merely depositing its declaration of acceptance with the Secretary-General of the United Nations, the accepting State automatically becomes a party to the Optional Clause system in relation to any other declarant State. The Court employed the word "contractual" and stated that:

"The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established . . ." (Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146.)

If, therefore, such a deposit of a declaration of acceptance is considered to be an offer to States parties to the [p 396] Statute which have not yet deposited their declarations, the important question is when (ratione personae and ratione temporis) can it be said that such an offer has been accepted by a new declarant State? The decision of the Court in 1957 and in all other similar cases, like the Temple of Preah Vihear case, is that such an offer is deemed to have been accepted on the date of the deposit of the new acceptance declaration with the Secretary-General of the United Nations.

The Court stated in this case that:

"The only formality required is the deposit of the acceptance with the Secretary-General of the United Nations under paragraph 4 of Article 36 of the Statute." (Preliminary Objections, Judgment, I.C.J. Reports 1961, p. 31.)

Although the subject of formation of contracts by correspondence varies from one domestic legal system to another, it is nevertheless indisputable that an offer must be communicated to the offeree before a contract can be considered binding. Judge Badawi, in his dissenting opinion in the Right of Passage case, confirmed this view when he observed:

"Whatever that moment may be, the position in the present case is that, in any event, and whatever criterion or moment may be adopted with regard to the formation of a contract by correspondence, it was prior to that moment. The present case is similar to one in which there is an offer which has not yet been dispatched." (I.C.J. Reports 1957, p. 157.)

It is difficult to perceive of a situation whereby a contract is considered as binding on a party when that party is unaware of the content and terms of that contract. There is therefore a cardinal prerequisite condition that the other party be notified that its offer had been accepted. This is the obvious omission in this case. Nigeria was not informed about Cameroon's Declaration before it (Cameroon) filed its Application before the Court. Further, in his dissenting opinion, Judge Badawi concluded that:

"The offer by Portugal, contained in its Declaration and addressed to the other States, had not been accepted by India or, indeed, communicated to India." (Ibid., p. 156.)

When the Court was called upon by India in 1957 to decide on its preliminary objections, two vital issues of substance (and not of procedure) were invoked in interpreting the provision in Article 36 (4); both conditions are patently mandatory because in both cases the word used in the Article is "shall". On the first condition, the Court rightly decided that the declaration must be deposited by the declarant State with the Secretary-General of the United Nations. But the Court failed to require compliance with the second prerequisite condition, that is to "transmit copies [p 397] thereof to the parties to the Statute and to the Registrar of the Court". This also is a condition precedent which the declarant State must comply with before it can validly invoke the jurisdiction of this Court. There is no other ordinary meaning or interpretation (in accordance with Article 31 of the 1969 Vienna Convention on the Law of Treaties) that would ensure that both conditions are given the same interpretation and meaning. Such a transmission is the only valid and binding means of official notification to other States parties, and in this case to Nigeria. To enable Cameroon to file a proper application before the Court there is essentially the need for Nigeria to have been notified of Cameroon's Declaration, but which was not done until eleven-and-a-half months thereafter, by which time Cameroon had filed its Application. Regrettably the Court has consistently followed its 1957 decision for over forty years, on the basis on this case-law in Right of Passage over Indian Territory.

The reasoning of the Court that the requirement of transmission is purely procedural was based on the view that to state otherwise could bring about uncertainty as to the moment when jurisdiction can be invoked. But all that is required of the declarant State is to ensure from the Office of the Secretary-General of the United Nations that this condition of transmission has been met by the Secretariat before filing its application, just as it should ensure that its instrument of declaration had been properly deposited with the Secretary-General. A declarant State which knows that the condition of transmission is a prerequisite, like the deposit, would ascertain that both conditions have been fulfilled before filing its application; in my view, the issue of uncertainty can thereby be disposed of without much waste of time. If the requirement of transmission is made compulsory, the declarant State would nevertheless comply with both conditions by making the necessary enquiry with the Secretary-General of the United Nations.

One other point that could have persuaded the Court in 1957 to decide that the issue of transmission is merely procedural concerned the nature of India's Declaration of Acceptance of 28 February 1940, in which it accepted the jurisdiction of the Court for a specified period "from today's date". This is the obvious difference between the case on Right of Passage over Indian Territory and the present case. Nigeria's Declaration is based on reciprocity and as such it is essential that it be given due notice and effect.

D. Good faith and the element of surprise

It is Nigeria's argument that Cameroon's Application to the Court came as a surprise and was perhaps filed in a clandestine manner. Nigeria further alleges the absence of good faith on the part of Cameroon. Cameroon denies all these accusations and states that Nigeria was informed [p 398] about Cameroon's intention to bring the action before the Court. Cameroon refers to an earlier meeting where it mentions arbitration as a means of resolving the dispute.

Since 1957, when the Court decided the case on Right of Passage over Indian Territory, the doctrine of good faith in international law has further developed considerably. There is the Friendly Relations Declaration of the General Assembly of 1970 (General Assembly resolution 2625 (XXV)), which enjoins States to fulfil in good faith obligations assumed by them in accordance with the Charter. Article 26 of the Vienna Convention on the Law of Treaties of 1969 also provides that "every treaty in force is binding upon the parties to it and must be performed by them in good faith". The Charter of the United Nations, in paragraph 2 of its Article 2, requires that Members shall fulfil in good faith their obligations under the Charter. The Court has also made reference to the principle of good faith in much of its case-law. In 1974, in the case concerning Nuclear Tests (New Zealand v. France), the Court observed that:

"One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential." (Judgment, I.C.J. Reports 1974, p. 473, para. 49.)

One issue of good faith that is very relevant to this particular preliminary objection is the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). In this case, the United States purported to act on 6 April 1984 in such a way as to modify its 1946 Declaration, which in fact sufficiently and immediately barred the application filed by Nicaragua on 9 April 1984. (Nicaragua had filed its Optional Clause Declaration on 24 September 1929.)

In that case, the Court found that there was sufficient basis for its jurisdiction. In its Judgment, the Court observed as follows:

"But the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity. Since Nicaragua has in fact not manifested any intention to withdraw its own declaration, the question of what reasonable period of notice would legally be required does not need to be further examined: it need only be observed that from 6 to 9 April would not amount to a 'reasonable time'." (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 420; emphasis added.) [p 399]

If therefore the Court has moved a step ahead since pronouncing its Judgment in 1957 in the Right of Passage case by accepting the requirement of good faith as a prerequisite for the termination of an Optional Clause declaration, it stands to reason that it could now move further and do the same in this case.

It is the view of the Court that the principle of good faith plays an important role in Optional Clause declarations with regard to reciprocity.

The Court observed further in the same Nicaragua case that:

"In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. In the establishment of this network of engagements, which constitutes the Optional Clause system, the principle of good faith plays an important role; the Court has emphasized the need in international relations for respect for good faith and confidence in particularly unambiguous terms . . ." (Ibid., p. 418; emphasis added.)

If, ex hypothesi, Nigeria, being aware of the fact that Cameroon was about to file its Application on 29 March 1994 had withdrawn its Optional Clause Declaration, say on 26 March 1994, putting Cameroon in a situation similar to that of Nicaragua, the Court would have decided that Nigeria did not act in good faith and that such withdrawal would not invalidate the Application of Cameroon. The Court is now being asked to deal with "the other side of the coin" and, in my opinion, it ought to give a "reciprocal judgment" by rejecting the Application of Cameroon as an application filed mala fide.

It has been strongly canvassed by Cameroon that instituting proceedings before the Court cannot be considered an unfriendly act. However, it is the practice among States that cases are addressed to the Court when negotiation and agreement have failed. It is not unusual for States to consider litigation as an unfriendly act especially in the absence of a Special Agreement. A good example is found in the steps taken by Peru and Colombia in the Asylum case of 1950, before the Application was eventually filed by Colombia on 15 October 1949. The "Act of Lima" agreement signed on 31 August 1949, which permits either of the parties to file its Application before the Court, states in its second paragraph thus:

"The Plenipotentiaries of Peru and Colombia having been unable to reach an agreement on the terms in which they might refer the dispute jointly to the International Court of Justice, agree that pro-[p 400]ceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made." (I.C.J. Reports 1950, p. 268; emphasis added.)

It is therefore not unusual for a State to consider an application filed with the Court as "unfriendly" when the same is done without notice from the applicant or from other expected sources.

E. The case concerning Right of Passage over Indian Territory

Two points have to be considered under this heading:

(a) that the present case is easily distinguishable from the Right of Passage case;

(b) that, even if it is not distinguishable from the Right of Passage case, the Court ought not to follow that precedent.

1. The differences

First, it can be clearly observed that the issue of good faith was not strongly canvassed by India, whereas in Nigeria's case absence of good faith on the part of Cameroon was strongly argued on the basis of the available facts and the law.

Secondly, on 28 February 1940, when India made its Optional Clause Declaration, it accepted the jurisdiction of the Court for a specified period "from today's date" (Right of Passage over Indian Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 146). There is no such provision in Nigeria's Declaration; on the contrary it demands reciprocity from any declarant State.

The issue of reciprocity was not strongly canvassed by India, unlike Nigeria, and as a result the Court did not put much emphasis on it. The situation in the present case is different from the situation in the Right of Passage case, which concerned certain enclaves in India, the right of passage to which Portugal claimed. In the present case Cameroon is seeking a determination of all its land and maritime boundaries with Nigeria. Again in the present case, third States' rights are involved. In the Lake Chad area the interests of Chad and Niger are involved, and within the maritime area the interests of Equatorial Guinea, Sao Tome and Principe and Gabon are involved.

2. The issue of precedent

As a prelude to his book Precedent in the World Court, Judge Mohamed Shahabuddeen writes:
[p 401]

"Decisions of the International Court of Justice are almost as replete with references to precedent as are decisions of a common law court. Even though previous decisions are not binding, the Court relies upon them as authoritative expressions of its views on decided points of law." (Emphasis added.)

The principle of stare decisis does not apply in this Court and, that being so, it has no rule of precedent. Article 59 of the Court's Statute expressly states that a decision of the Court is only binding between the parties and in respect of that particular case. Article 62 of the Statute permits a State which considers that it has an interest of a legal nature which may be affected by the decision of the Court in a particular case to file a request to the Court for permission to intervene.

In practice, however, the Court in most cases relies upon and follows its previous decisions.

While that practice is desirable in order to ensure some degree of certainty in the jurisprudence of the Court, there are occasions when it is necessary for the Court, for one reason or the other, not to follow its previous decisions. The present case is just such a case.

This latter practice is not unknown in the Court and had been employed in a few cases: in the Peace Treaties case the Court declined to follow the strict rule which it had laid down in the Eastern Carelia case regarding the rendering of an advisory opinion. Similarly, in the Barcelona Traction case the Court did not follow its decision in the Nottebohm case on the issue of diplomatic protection.

Of recent, Shabtai Rosenne has taken a keen interest in cases connected with Optional Clause declarations under Article 36 (4) vis-ΰ-vis the Right of Passage case. He observed in his recent publication An International Law Miscellany:

"In the present Court this litigation tactic has been followed in five cases of high political implication: Nuclear Test (Australia v. France) case, the Aegean Sea Continental Shelf case, the Military and Paramilitary Activities in and against Nicaragua case, and the two cases Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie. What is more, in all of these cases the phenomenon of the 'unwilling respondent' (in the first and third, a permanent member of the Security Council) was encountered, and in the first two of those cases, that unwilling respondent refused to have any part in the proceedings, all adding to the difficulties of jurisdiction and admissibility.

The existence of this well-established procedure coupled with the last five precedents raises serious doubts about the continued [p 402] unchecked application of the doctrine accepted by the Court in the Right of Passage case. Paragraph 4 was inserted into Article 36 of the Statute at the San Francisco Conference almost as a matter of routine, and like any text it is open to more than one interpretation. Since then, important developments have taken place both as regards the general law of the depositary of multilateral instruments, formulated for the first time (as stated) in the Vienna Conventions, and in State practice as exemplified in the cases mentioned." (P. 92.)

And finally he offered some suggestions, as follows:

"The question can be asked whether what has occurred since the Right of Passage case does not justify a reconsideration of the doctrine of that case should an opportunity to do so present itself. At all events, it is to be hoped that should occasion arise for a revision of the Statute, more attention will be paid to the implications of Article 36, paragraph 4, than was given in 1945, and that a method will be found to protect States which have accepted the jurisdiction under paragraph 2 from the surprise deposit of a declaration in New York and the immediate institution of proceedings accompanied by a request for the indication of interim measures of protection before the respondent can be (not 'is') aware that the declaration has been deposited; and that the provisions regarding the making of declarations, their modification and their termination and other related instruments, will be co-ordinated with what is now established law and practice regarding the exercise of the functions of the depositary of multilateral treaties and other international instruments." (Ibid., pp. 92-93.)

From all that has been said and quoted above, it is clear that the decision in the case concerning Right of Passage over Indian Territory should generally be revisited and to regard such case-law as bad law, because the decision failed to take into proper consideration the second mandatory condition provided in Article 36 (4) of the Statute of the Court, namely that States parties "shall" be notified before jurisdiction can be invoked by any declarant State. Both conditions, of "deposit" and "transmission", are mandatory, as set forth in that paragraph 4 of Article 36, which provision must be complied with by any litigant State that intends to file its application.

F. Other compelling considerations

So many circumstances of this particular case are sufficiently compelling as to persuade the Court to accept the argument of Nigeria, even on objective grounds. Firstly, Nigeria and Cameroon are neighbours and will remain so for all time, and it is therefore not in the interests of peace and good neighbourliness in that region that one Party should be dragged [p 403] to the Court against its wish. The record before the Court is that both Parties are already involved in the settlement of some of the dispute. Delimitation and demarcation have been effected in some areas and it will be in bad faith that the matter is brought to the Court while other means of settlement of the Parties' dispute is pending.

Moreover, many cases of delimitation in land and maritime disputes have been instituted in this Court by way of Special Agreement. A very recent and successful example is the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), which was concluded and judgment delivered on 3 February 1994; by the end of May of that year Libya had complied with the Judgment of the Court. There are ten other similar cases: Minquiers and Ecrehos (United Kingdom/France), I.C.J. Reports 1953; Sovereignty over Certain Frontier Land (Belgium/Netherlands), I.C.J. Reports 1959; North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), I.C.J. Reports 1969; Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), I.C.J. Reports 1984; Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985; Frontier Dispute (Burkina Faso/Mali), I.C.J. Reports 1986; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), I.C.J. Reports 1992; and the pending territorial disputes Maritime Delimitation and Territorial Questions between Qatar and Bahrain and Kasikili/Sedudu Island (Botswana/Namibia).

Three further cases were instituted by unilateral application: Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. Reports 1962; Aegean Sea Continental Shelf (Greece v. Turkey),I.C.J. Reports 1978; and Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), I.C.J. Reports 1993; however, these cases deal either with maritime delimitation or with frontier disputes, but not with both as in the present case.

It is a well-accepted fundamental principle of international law that the jurisdiction of the Court is based on consent of the States involved. The Court echoed this view in the recent case of Maritime Delimitation and Territorial Questions between Qatar and Bahrain:

"There is no doubt that the Court's jurisdiction can only be established on the basis of the will of the Parties, as evidenced by the relevant texts." (I.C.J. Reports 1995, p. 23, para. 43.) [p 404]

Rosenne also comments as follows on this same established principle:

"There exists an uncontroverted principle of general international law according to which no State is obliged to submit any dispute with another State or to give an account of itself to any international tribunal. The agreement of the parties to the dispute is the prerequisite to adjudication on the merits." (The Law and Practice of the International Court, 1920-1996, Vol. II, p. 563.)

With this consensual basis of jurisdiction, it can be strongly argued in this case that unless such consent is genuinely given, and not forced, the Court should exercise judicial caution in proceeding with the case on its merits. Nigeria's objection is premised on the argument that the Application was a surprise and that Nigeria was not given the prerequisite notice either by Cameroon or by the Secretary-General of the United Nations before the Application was filed by Cameroon.

In a similar vein it is also important for the Court to consider the issue of justice underpinning this preliminary objection, and ask whether a jurisdiction forced on Nigeria, as an unwilling Respondent, would promote peace and good neighbourliness between the Parties and in that region. This concept of justice is not abstract; it is to be defined and determined in accordance with the provision in Article 2, paragraph 3, of the Charter. Jurisdiction is defined by Rosenne as follows:

"Broadly speaking the expression jurisdiction refers to the power of the Court to 'do justice' between the litigating States, to decide the case before it with final and binding force on those States. The expression 'do justice' has been used by the Court several times, notably in the UNAT advisory opinion." (The Law and Practice of the International Court, 1920-1996, Vol. II, p. 536.)

It is for all the reasons stated above that I felt convinced that the Court ought to uphold the first preliminary objection of Nigeria and, therefore, dismiss the Applications of Cameroon.



II. THE THIRD PRELIMINARY OBJECTION

The third preliminary objection of Nigeria is that "the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission" (CR 98/5, p. 64). Nigeria argues that the provisions of the Statute of the Lake Chad Basin Commission, annexed to an agreement dated 22 May 1964, are binding on the four States which are signatories to that agreement, including [p 405] Cameroon. It argues further that the provisions of the Statute coupled with the agreements and other understandings between the four States parties to the Agreement is binding on them, and thus Cameroon cannot file its Application under Article 36 (2) of the Statute of the Court. The two other members of the Commission are Chad and Niger. Cameroon denies the meaning that Nigeria attaches to the function and power of the Commission. Both Parties refer to the Statute of the Commission as well as the assignments given to it by the four member States of the Commission.

A careful examination of the duties of the Commission is more than sufficient to confer on it the task of dealing with all the requests that are now being submitted by Cameroon to this Court. These assignments can be viewed in two parts: those that are contained in the Statute, i.e., under Article IX, paragraphs

"(c) to maintain the liaison between the High Contracting parties with a view to the most effective utilization of the waters of the Basin;

(d) to follow the progress of the execution of surveys and work in the Chad Basin as envisaged in the present Convention, and to keep the Member States informed at least once [a] year thereon, through systematic and periodic reports which each State shall submit to it;
………………………………………………………………………………………………
(g) to examine complaints and to promote the settlement of disputes and the resolution of differences;" (emphasis added),

and those that are assigned to the Commission by the authority of the member States. As evidence of this, two sub-commissions of experts were, inter alia, assigned to carry out the demarcation and delimitation of borders in the Lake Chad area, having as their working documents various conventions and agreements concluded between the former colonial Powers. It is important to emphasize that the sub-commissions were assigned the duty not only to delimit boundaries but also to demarcate the same. This exercise was carried out between 1989 and 1990; by 1994 the assignment had been fully completed and awaited the signing and ratification of the pertinent document by individual Heads of State. Although the document was ratified by Cameroon last year (after this case had been filed in the Court), Nigeria did not respond accordingly, presumably because of the Application of Cameroon pending in the Court.

One important and convincing argument in favour of upholding this preliminary objection is the fact that the Commission had already carried out and completed the work that the Court is now called upon by Cameroon to carry out. The four member States are not disputing the final work of the Commission and all that is left to be done is the ratification of the resulting instrument. Apart from the fact that it is difficult, under the circumstances, to establish a case of any dispute between Nigeria and [p 406] Cameroon within the Lake Chad Basin (except for Darak and adjacent islands), it can be concluded that the Parties, having submitted their claims to the Commission, are bound by its decision. The enigma, or the confusion, that might arise in this regard is the apparent bifurcation of judicial authority within the Lake Chad Basin which could occur if all the four member States agreed to ratify the Commission's instrument in the future.

In its further argument Nigeria refers to Article 52 of the United Nations Charter, and considers the Commission's assignment as being within the framework of regional arrangements "or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action . . .". The question here is whether the Lake Chad Basin Commission can be regarded as a regional organization. In my view, the Commission can be so regarded and therefore qualifies as coming under Article 52 of the Charter. The reason for this is not far-fetched: as already mentioned, paragraph IX (g) of the Commission's Statute empowers the Commission to examine complaints, promote settlement of disputes and resolve differences. The maintenance of international peace and security, as stipulated in Article 52 (1) of the Charter, is in accord with the assignments conferred on the Commission by this regional group of States.

Another point raised by Nigeria during its argument in the oral proceedings concerns Article 95 of the United Nations Charter, which provides that:

"Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future."

The crucial question here is whether the Lake Chad Basin Commission is a tribunal. To my mind it is, because it is vested with all the powers, functions and duties of a tribunal and it is competent to act as one. The word "tribunal" is a generic term that encompasses various dispute settlement jurisdictions. In Law Terminology, a document of the United Nations, the word "tribunal" is defined as "person or body exercising adjudicatory functions outside the regular judicial system, i.e. exercising quasi-judicial functions"; tribunals are referred to as:

"often established by statutory authority, in which case they are sometimes called statutory tribunals. Although outside the regular judicial system they are nevertheless subject to the supervisory jurisdiction of the High Court of Justice by the process of judicial review. They may be called tribunal, board, commission, committee or council and are divided into three categories: administrative tribunal, domestic tribunal, tribunal of enquiry . . ." (Emphasis added.) [p 407]

After all, the assignment of the Commission includes not only the delimitation and demarcation of boundaries within the Lake Chad Basin; it also includes the function of dispute settlement and it therefore qualifies as an arbitral or administrative tribunal, as the case may be. Hence Nigeria rightly invokes the provision in Article 95 of the Charter. An examination of Article 94 of the Charter, which deals with the issue of compliance "with the decision of the International Court of Justice", clearly distinguishes this Court from the establishment of such a tribunal as that envisaged in Article 95 as an alternative body that could be set up instead of an application being filed with the Court.

One point is therefore clear with regard to this preliminary objection: that the Commission had been assigned and is still seised of the duty to delimit and demarcate the boundary between both Parties in the Lake Chad Basin, and the subsequent assignment of the same work to the Court is, therefore, inadmissible. Hence my conclusion that the Court lacks jurisdiction. Furthermore, the Commission's assignment, carried out for and on behalf of the four member States, is a joint affair, apparently indivisible. Both Parties in the present case are therefore obliged to recognize and abide by the exclusive competence of the Lake Chad Basin Commission.

Finally on this preliminary objection, there is need for a note of caution: that the Court should not be called upon to carry out what has already been accomplished by the Parties through the Commission.

For all these reasons it is my view that the third preliminary objection of Nigeria should be upheld.

III. THE FOURTH PRELIMINARY OBJECTION

The Court rejects the fourth preliminary objection of Nigeria 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 the Lake." (NPO, Vol. I p. 84, para. 4.12.)

However, I hold a contrary view. The reason for so doing is that, having regard to the position of the tripoint, it is difficult if not impossible to entertain the request of Cameroon.

Cameroon disagrees with this preliminary objection and argues that the case-law of the Court does not support the argument of Nigeria. Both Parties made mention of the Frontier Dispute (Burkina Faso/Mali), where the Chamber of the Court conceded that it had jurisdiction to adjudicate on the case notwithstanding the fact that the endpoint of the frontier lies on the frontier of another, third State. The view of Cameroon is that the Frontier Dispute case, as well as the case of the Territorial Dispute (Libya/Chad), are case-law that cannot be distinguished from this present case as claimed by Nigeria.

As I have mentioned earlier in this opinion, a case of this nature requires the unequivocal consensus of both Parties to enable the Court to be seised of the matter. For example, both the Frontier Dispute and Territorial Dispute cases were brought before the Court by Special Agreement. Another important factor in favour of Nigeria's argument is the fact that its interests and those of Chad and Niger are interwoven within the Lake Chad Basin, in respect of which the Commission has performed its obligations of demarcation and delimitation.

But the position of Chad with regard to the tripoint is more relevant in this case when compared to the cases of Frontier Dispute and Territorial Dispute. Mention has been made of earlier clashes between Nigeria and Chad in the same area which might or might not affect the tripoint. It can therefore be said that the interests of Chad and to some extent those of Niger constitute the subject-matter of this case which, to my mind, cannot be heard on the merits without Chad intervening as a party. Of course the immediate answer on this could be the invocation of Article 59 of the Statute, in that the decision of the Court is binding only on the parties. However, this is a case which is in line with the cases of East Timor (Portugal v. Australia) and Certain Phosphate Lands in Nauru (Nauru v. Australia). The earlier case of Monetary Gold Removed from Rome is also relevant here. The point has been made by Cameroon that its Applications relate only to the issue of the boundary between it and Nigeria. The issue here is not what Cameroon files or says but what, practically, is on the ground as to the position of the tripoint between Chad and the Parties. Quite definitely, the frontier between Cameroon and Nigeria will affect the frontier between Cameroon and Chad by virtue of the tripoint. A desirable situation that would certainly confer jurisdiction on the Court would be the seising of the Court by way of special agreement between Cameroon, Nigeria and Chad. For all these reasons my conclusion is that the fourth preliminary objection of Nigeria ought to be upheld.

IV. THE FIFTH PRELIMINARY OBJECTION

In my view, the Court ought to uphold the fifth preliminary objection as framed by Nigeria which regrettably it rejected, hence my disagreement with the decision of the Court. There are two important reasons which underlie my decision to take a contrary view to that of the Court: in effect the Court has failed to respond to the preliminary objection as framed and presented by Nigeria, and further the conclusions reached by the Court are contradictory in terms.

Nigeria in its fifth preliminary objection maintains that there is no dispute between it and Cameroon "concerning boundary delimitation as such throughout the whole length of the boundary from the tripoint in Lake Chad to the sea". It maintains that there simply is no evidence of such a dispute, either in Cameroon's original Application or in its Additional Application filed on 6 June 1994. It went further to particularize the objection as follows:

"(1) there is no dispute in respect of the boundary delimitation as such within Lake Chad, subject to the question of title to Darak and adjacent islands inhabited by Nigerians;

(2) there is no dispute relating to the boundary delimitation as such from the tripoint in Lake Chad to Mount Kombon;

(3) there is no dispute relating to the boundary delimitation as such between Boundary Pillar 64 on the Gamana River and Mount Kombon; and

(4) there is no dispute relating to the boundary delimitation as such between Boundary Pillar 64 on the Gamana River and the sea." (NPO, Vol. I, p. 87.)

Cameroon denies the assertion of Nigeria and argues that in fact there are not only disputes within the Lake Chad Basin area and on the frontier to the sea but that there are also maritime delimitation disputes. The question put to Nigeria by the Court was not limited to the land boundary but speaks of the whole boundary. Consequently, in the conclusion reached by the Court, its finding is that there is a dispute between the Parties concerning the "boundary as a whole". It is thus clear that, strictly speaking, the fifth preliminary objection of Nigeria as put before the Court has not been specifically addressed. The Court ought to have limited itself to the preliminary objection as framed by Nigeria and therefore it cannot be said that the fifth preliminary objection of Nigeria has been properly dealt with.

As claimed by Nigeria there has been partial demarcation of the boundary. In fact, Nigeria points out that "something a little over 200 miles of the present boundary has been clearly demarcated by the erection of boundary pillars" (CR 98/2, p. 21). This is not denied by Cameroon. Nigeria goes further to state:

"Even taking a generous view of the extent of the boundary affected by these local incidents (say, Ό of a mile of boundary for each 'incident') they concern, even if all of them were relevant (which they are not), perhaps some 10 or a dozen miles of its length. That cannot be taken as representing doubt or dispute as to the whole length of that 1,000-mile boundary." (CR 98/2, p. 25.)

Thus it may be concluded that, contrary to the claim of Cameroon, the area in dispute can be considered as relatively minor or even negligible. [p 410] In any case, at least it is clear from the alleged facts of the incidents and disputes presented by the Parties that there is no question of the entire length of the boundary from Lake Chad to the sea being in dispute.

Another aspect of Nigeria's fifth preliminary objection concerns the legal and geographical scope of the boundary dispute. It appears that, in the view of the Court, Nigeria has not definitively made its position clear regarding the course of the boundary, or at least does not agree with the claim of Cameroon. Equally, the Court cannot ascertain from the answer given by Nigeria (based on the question put to it as already referred to) what is its own view of the legal scope of the dispute either now or in the future. Since Nigeria has not filed its Counter-Memorial, it is not bound to disclose its line of defence at this stage of the procedure. Hence, as concluded by the Court, "the exact scope of this dispute cannot be determined at present" (para. 93). Yet the Court still concluded that "a dispute nevertheless exists between the two Parties, at least as regards the legal bases of the boundary" (ibid.). In my view, these are contradictory statements which I do not agree with. In fact, Cameroon's claim in its Application ought to have been restricted to the disputed boundary locations and area of incidents, which amount to less than 5 per cent of the entire boundary.

Again, the Court ought to have restricted its Judgment to the preliminary objection as framed by Nigeria, and amplified therein under the enumerated four points. Based on this view, the Court initially and rightly concluded that:

"On the basis of these criteria, there can be no doubt about the existence of disputes with respect to Darak and adjacent islands, Tipsan, as well as the Peninsula of Bakassi." (Para. 87 of the Judgment.)

The Court should therefore have concerned and indeed limited itself exclusively to this clear area of boundary disputes, undenied by both Parties. This view is further confirmed by the Court when it observes:

"All of these disputes concern the boundary between Cameroon and Nigeria. However, given the great length of that boundary, which runs over more than 1,600 km from Lake Chad to the sea, it cannot be said that these disputes in themselves concern so large a portion of the boundary that they would necessarily constitute a dispute concerning the whole of the boundary." (Para. 88.)

In effect, the Court on this preliminary objection considered the entire area from Lake Chad to the sea as being in dispute rather than the locations referred to by Nigeria.

The Court's failure to limit its decision to the preliminary objection of Nigeria as framed calls into question its Judgment in view of the non [p 411] ultra petita rule. The Court addressed a similar matter in submissions in the Asylum case (I.C.J. Reports 1950, p. 402). It is not for the Court to expand or enlarge the scope of the preliminary objection as framed and presented by an applicant, nor is the Court called upon to modify it suo motu; the objection must be considered and decided upon as put forward by the Applicant in its preliminary objection.

For example, France and the United Kingdom, in their Special Agreement in the Minquiers and Ecrehos case, asked the Court to decide which of the parties owns these group of islands. The Court might perhaps have decided that the islands had the status of "res nullius" or of "condominium" (I.C.J. Reports 1953, p. 52), but it was obliged to restrict itself to determining "which of the Parties has produced the more convincing proof of title to one or the other of these groups, or to both of them" (ibid.).

Rosenne, in The Law and Practice of the International Court, 1920-1996, is of the opinion that,

"in principle it is the duty of the Court, in deciding on the basis of international law the disputes that are submitted to it, to limit itself to the terms of its remit — the special agreement, the submissions, or the question put for an advisory opinion, as the case may be. This — the non ultra petita rule — gives the parties the last word in the ability of the Court to settle their dispute." (Vol. I, p. 173.)

In conclusion, had the Court followed this principle and restricted itself to the content of the fifth preliminary objection, as formulated and argued by Nigeria, it might have arrived at a decision different from the one reached in regard to this objection.

It is for all these reasons that I have voted against the decision of the Court.

V. THE SIXTH PRELIMINARY OBJECTION

I voted against the decision on the sixth preliminary objection because I am convinced that Nigeria is justified in its objection that the Application filed by Cameroon does not meet the required standard of adequacy as to the facts on which its Application is based, particularly in relation to the dates, circumstances and precise locations of the alleged incursions and incidents by Nigeria, in alleged breach of its international responsibility. A careful perusal of Cameroon's Applications reveals incongruities, irregularities, imprecision and mistakes.

Some of these incongruities are patent from the Applications as filed on 29 March 1994 and 6 June 1994. With reference to the requirement to be satisfied by Cameroon, its Applications must specify, [p 412]

"as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based (Art. 38 (2) of the Rules; emphasis added).

While it is true that Cameroon sufficiently specified the legal grounds upon which its Applications are based, it has, however, failed to specify adequately the precise nature of the claim or to provide a "succinct statement of the facts and grounds on which the claim is based".

For Cameroon to invoke Nigeria's international responsibility and consequent obligation to make reparation, it is not enough for Cameroon to make general and unsubstantiated statements about incidents. Cameroon must supply full particulars of the place, the time and the nature of the alleged incidents, and also make it clear precisely how these were serious enough to call into question Nigeria's international responsibility as recognized by international law.

It is true, as the Court stated, that "succinct" does not mean "complete", but it connotes conciseness, and that is a requirement which Cameroon failed to satisfy in its Applications. In its oral argument Nigeria contended that,

"the respondent State, and the Court, need, as a minimum, to know four things — the essential facts about what is alleged to have occurred, when it is supposed to have taken place, precisely where it is supposed to have taken place (especially in relation to any relevant boundary), and why the Respondent is thought to bear international responsibility for the incident (CR 98/2, p. 28).

In its pleadings Cameroon stated that, in order to establish Nigeria's responsibility, its Applications were only indicative of the nature of such responsibility and that the allegations contained therein would be amplified when the matter reached the merits stage.

However "indicative" such a statement may be, it must be sufficiently clear as to the nature of Nigeria's responsibility. And since Cameroon fails in this regard, the Court ought not to reject Nigeria's sixth preliminary objection.

VI. THE SEVENTH PRELIMINARY OBJECTION

The seventh preliminary objection of Nigeria contends that there is "no legal dispute concerning delimitation of the maritime boundary between the two Parties which is at the present time appropriate for resolution by the Court" (NPO, Vol. I, p. 113). In support of this contention Nigeria gave two reasons: [p 413]

"(1) In the first place, no determination of a maritime boundary is possible prior to the determination of title in respect of the Bakassi Peninsula.

(2) Secondly, at the juncture when there is a determination of the question of title over the Bakassi Peninsula, the issues of maritime delimitation will not be admissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law'." (Ibid.)

On the first reason, I agree with the conclusion reached by the Court that this is simply a question of method. It is true that the Court determines its procedure and could easily arrange its own adjudicatory process so as to ensure that the land disputes are dealt with first, before embarking on the maritime dispute. As a matter of fact, this does not appear to me as an issue of preliminary objection and as such it has been rightly rejected.

However, I hold a contrary view to the conclusion reached by the Court on the second strand of Nigeria's seventh preliminary objection. Here the issue is an important one under international law, as it relates to the provisions of the United Nations Law of the Sea Convention of 1982. What Nigeria contends here is that the issue of maritime delimitation is inadmissible in the absence of negotiation and agreement by the Parties on a footing of equality to effect a delimitation. In other words, Nigeria alleges that Cameroon failed to seek first an attempt for a delimitation by agreement based on international law under the principles and provisions of the United Nations Convention on the Law of the Sea of 1982. The relevant provisions are Articles 74 and 83. Article 74, paragraphs 1 and 2, provides as follows:

"1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV." (Emphasis added.)

Article 83, paragraphs 1 and 2, provides as follows:

"1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of [p 414] time, the States concerned shall resort to the procedures provided for in Part XV." (Emphasis added.)

As quoted above, the provisions of the two Articles are similar, but while one deals with the exclusive economic zone (Art. 74), the other deals with the issue of the continental shelf (Art. 83). Furthermore, both Parties are signatories to the Convention, which they have also ratified. The question now is whether these provisions are binding on both of them; in my view, there is no doubt about that. Before instituting an application in this Court, it is a condition precedent that both Parties ought to attempt genuinely to agree on the settlement of their maritime boundary dispute, failing which such a matter could be brought before the Court. These are mandatory provisions for both Parties. Cameroon, for its part, contends that there was no compelling reason to negotiate nor reach an agreement before filing an application before the Court, and went further to state that attempts were made to reach an agreement but failed. While it may be true to say that there was an attempt to negotiate and agree on their maritime boundary delimitation up to point G, there is however no evidence to indicate that there was any attempt to reach such an agreement regarding their maritime disputes beyond that point. To institute therefore an action in the Court without compliance with the provisions set out above, under the Law of the Sea Convention, is a fatal omission which makes such an application inadmissible. In any case, the Court, pursuant to Article 38 of the Statute, must apply international law and "international conventions, whether general or particular . . ." (para. 1 (a)). This has always been the position under general international law and it was first affirmed by the Court in 1969 in the North Sea Continental Shelf cases, which emphasize the need for parties to be given the opportunity to negotiate, when it held that,

"the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful . . ." (I.C.J. Reports 1969, p. 47).

A clear guideline was expressed in the Gulf of Maine Chamber case that first an agreement must be sought, following negotiations which should be conducted in good faith with a clear and honest intention of achieving a successful result. And the Chamber went on to state in its Judgment that:

"Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence." (I.C.J. Reports 1984, p. 299.) [p 415]

It is therefore immaterial to determine whether this is a procedural or a substantive issue. What is clear is that the process of negotiation and attempt to reach an agreement in good faith must precede any reference to a third-party adjudication. In any event, I strongly believe that without complying with the prerequisite condition of negotiation and attempt to reach an agreement, Cameroon failed to comply with a requirement of substance and not just a merely procedural one. This is not a question of jurisdiction under Article 36 (2) of the Statute, but one of admissibility. My conclusion is that the Applications of Cameroon are not admissible as regards a dispute over the maritime boundary.

VII. THE EIGHTH PRELIMINARY OBJECTION

The last preliminary objection of Nigeria appears to me to be a sound one, which ought to be upheld by the Court. Unfortunately the Court also rejects it. Here, Nigeria argues "that the question of maritime delimitation necessarily involves the rights and interests of third States and is to that effect inadmissible" (NPO, Vol. I, p. 133). It states that there are five States involved within the Gulf, which is "distinctly concave". These States are Equatorial Guinea, Gabon, Sao Tome and Principe, and the two Parties in the present case. Nigeria, in its argument, tries to distinguish and differentiate the situation of this particular case from other cases like those of the Frontier Dispute, the Continental Shelf (Libya/Malta) as well as the Continental Shelf (Tunisia/Libya). Cameroon, on its part, argues to the contrary, that all these cases are relevant and that they should be followed in the present case. Besides, it invokes the provision of Article 59 to the effect that a judgment in this case would be binding on no other States than the Parties.

The subject-matter of this preliminary objection concerns maritime delimitation beyond point G, which relates to the exclusive economic zone. Agreed, that a delimitation exercise between the Parties may not affect the interests of third States as such, but, in this particular case, it is difficult to effect any maritime delimitation beyond point G without calling into question the interests of other States, particularly Equatorial Guinea and Sao Tome and Principe. In accordance with the jurisprudence of the Court, it cannot decide a dispute between two parties without the consent of those States whose interests are directly affected, unless they intervene in such a matter.

It is for all these reasons that the Court ought to refuse the Application of Cameroon based on maritime delimitation of the area beyond point G and uphold the eighth preliminary objection of Nigeria. [p 416]

VIII. THE SECOND PRELIMINARY OBJECTION AND THE FIRST PART OF THE SEVENTH PRELIMINARY OBJECTION

However, I agree with the decision of the Court in rejecting the second preliminary objection of Nigeria, whereby it maintains that for a period of twenty-four years prior to the filing of Cameroon's Application both Parties had accepted a duty to settle all boundary disputes through "the existing boundary machinery" and that this constitutes an implied agreement and that Cameroon is thereby estopped from invoking the jurisdiction of the Court. I believe that, having regard to all the facts presented by both Parties in this case, Cameroon is not estopped from invoking the jurisdiction of the Court and that this duty cannot override the provision in Article 33 of the Charter which permits parties to seek the settlement of their disputes by "negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement . . . or other peaceful means of their own choice". In addition, Nigeria referred its grievance concerning the armed incident of 1981 to the Organization of African Unity. In the circumstance, it is difficult to agree with Nigeria that this is a case of pacta sunt servanda or estoppel.

Furthermore, I agree with the decision of the Court, as already mentioned above, that the first part of Nigeria's seventh preliminary objection deals with the matter of methodology and as such the objection, which in my opinion is unconvincing, has been rightly rejected by the Court.

CONCLUSION

The general conclusion I have reached with regard to the eight preliminary objections filed by Nigeria is that, whereas I agree generally with the decisions of the Court on the second and the first part of the seventh preliminary objections, I do however disagree with the decisions reached by the Court on the first, third, fourth, fifth, sixth and the second part of the seventh and the eighth preliminary objections respectively.

As already mentioned, the most important objection raised by Nigeria is the first one, which deals with Article 36 of the Statute, particularly its paragraphs 2 and 4. Needless to say that there would have been no need for the Court to consider the remaining seven preliminary objections if the first one had been upheld.

I am also of the view that the Right of Passage over Indian Territory case is no longer good case-law. In 1957, when the Court had the first opportunity of interpreting the provision in Article 36 (4), the decision, while positively and effectively asserting the legal position as to the deposit of the declaration of acceptance as a condition precedent to invoking the jurisdiction of the Court, failed to do the same with regard [p 417] to the second prerequisite condition: that copies of such instruments must be transmitted to all member States. That precisely is what the Court is called upon to regularize in this case, which it failed to do. This is a unique opportunity for the Court to do so, in order not to drag an unwilling Respondent to Court without its real consent. To do so may not be in the interests of peace within that enclave. Most cases of this nature that have come to the Court have come by way of Special Agreement and it would have been better for the Parties to be persuaded by the Court to bring the case in this manner. That would not be a unique attempt, having regard to what happened in the case concerning the Maritime Delimitation and Territorial Questions between Qatar and Bahrain. There are other considerations of a compelling nature to warrant an exercise of caution on the part of the Court. If one considers the fact that Cameroon is seeking the delimitation of the entire maritime and land boundary between it and Nigeria, the fact that there had been allegations and counter-allegations of border incidents and the fact that the Parties have on the ground various commissions to effect demarcation, delimitation and pacific settlement of disputes — all these facts are cogent reasons why the Parties should be enjoined to come to Court by way of Special Agreement.

Furthermore, it is essential that the Court should handle this matter with care to ensure that peace will reign within that region at the end of this litigation. In this regard there is also need for caution to ensure that the jurisdiction of the Court will not be an exercise in futility if, for example, what is required of the Court is ultimately accomplished by the Lake Chad Boundary Commission.

Finally, in dealing with cases between States, adherence to the general principles of international law as expressed in Article 2, paragraph 1, of the Charter (regarding the principle of the sovereign equality of Members) must be observed. As stated above, the jurisdiction of the Court is based on genuine consent of the parties and nothing should be done to derogate from this basic principle. As observed in the dissenting opinion of Judge Chagla in the Right of Passage over Indian Territory case:

"I should like to make one general observation with regard to the question of the jurisdiction of the Court. It has been said that a good judge extends his jurisdiction. This dictum may be true of a judge in a municipal court; it is certainly not true of the International Court. The very basis of the jurisdiction of this Court is the will of the State, and that will must clearly demonstrate that it has accepted the jurisdiction of the Court with regard to any dispute or category of disputes. Therefore, whereas a municipal court may liberally construe provisions of the law which confer jurisdiction upon it, the International Court on the other hand must strictly construe the provisions [p 418] of the Statute and the Rules and the instruments executed by the States in order to determine whether the State objecting to its jurisdiction has in fact accepted it." (I.C.J. Reports 1957, p. 180.)



(Signed) Bola AJIBOLA.

 
     

 

 

 

 

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