25 March 1999

 

General List No. 101

 
     

international Court of Justice

     
 

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria

 
     

Nigeria

 

v. 

cameroon

     
     
 

Judgment

 
     
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BEFORE: President: Schwebel;
Vice-President: Weeramantry;
Judges: Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans;
Judges ad hoc: Mbaye, Ajibola
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1999.03.25_boundary.htm
   
Citation: Land and Maritime Boundary between Cameroon and Nigeria (Nig. v. Cameroon), 1999 I.C.J. 31 (Mar. 25)
   
Represented By: Nigeria: H.E. Mr. Alhaji Abdullahi Ibrahim, SAN, OFR, Honourable Attorney-General of the Federation and Minister of Justice, as Agent;

Cameroon: H.E. Mr. Laurent Esso, Minister of Justice, Keeper of the Seals, as Agent;
Mr. Maurice Kamto, Professor at the University of Yaounde II, Member of the Paris Bar;
Mr. Peter Ntamark, Professor of Law at the Faculty of Laws and Political Science, University of Yaounde II, Barrister-at-Law, member of the Inner Temple, as Co-Agents;
Mr. Alain Pellet, Professor at the University of Paris X-Nanterre and at the Institut d'etudes politiques, Paris, as Deputy-Agent.

 
     
 
 
     
 

 [p.31]

The Court,

composed as above,

after deliberation,

delivers the following Judgment:

1. On 28 October 1998, the Government of the Federal Republic of Nigeria (hereinafter called "Nigeria") filed in the Registry of the Court an Application instituting proceedings dated 21 October 1998, whereby, referring to Article 98 of the Rules of Court, it requested the Court to interpret the Judgment delivered by the Court on 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria)(Preliminary Objections). [p 33]

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was forthwith communicated to the Government of the Republic of Cameroon (hereinafter called "Cameroon") by the Deputy-Registrar. At the same time, the Parties were informed that the Senior Judge, acting pursuant to Articles 13, paragraph 3, and 98, paragraph 3, of the Rules of Court, had fixed 3 December 1998 as the time-limit for Cameroon to submit its written observations on Nigeria's request for interpretation.

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

4. On 13 November 1998, within the time-limit fixed, the Government of Cameroon filed in the Registry its written observations on the Nigerian request.

5. In light of the dossier thus submitted to it, the Court, considering that it had sufficient information on the positions of the Parties, did not deem it necessary to invite them "to furnish further written or oral explanations", as Article 98, paragraph 4, of the Rules allows it to do.

6. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them availed itself of the right conferred by Article 31, paragraph 3, of the Statute to proceed to choose a judge ad hoc to sit in the case: Nigeria chose Mr. Bola Ajibola and Cameroon Mr. Keba Mbaye.

*

7. In the course of the proceedings the Parties presented the following submissions:

On behalf of Nigeria:
in the Application:

"On the basis of the foregoing considerations, Nigeria requests the Court to adjudge and declare that the Court's Judgment of 11 June 1998 is to be interpreted as meaning that:

so far as concerns the international responsibility which Nigeria is said to bear for certain alleged incidents:

(a) the dispute before the Court does not include any alleged incidents other than (at most) those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994;

(b) Cameroon's freedom to present additional facts and legal considerations relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994; and

(c) the question whether facts alleged by Cameroon are established or not relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994."

On behalf of Cameroon:

in the written observations:

"On these grounds,

Having regard to the request for interpretation submitted by the Federal Republic of Nigeria dated 21 October 1998, the Republic of Cameroon makes the following submissions: [p 34]

1. The Republic of Cameroon leaves it to the Court to decide whether it has jurisdiction to rule on a request for interpretation of a decision handed down following incidental proceedings and, in particular, with regard to a judgment concerning the preliminary objections raised by the defending Party;

2. The Republic of Cameroon requests the Court:

- Primarily:

To declare the request by the Federal Republic of Nigeria inadmissible; to adjudge and declare that there is no reason to interpret the Judgment of 11 June 1998;

- Alternatively:

To adjudge and declare that the Republic of Cameroon is entitled to rely on all facts, irrespective of their date, that go to establish the continuing violation by Nigeria of its international obligations; that the Republic of Cameroon may also rely on such facts to enable an assessment to be made of the damage it has suffered and the adequate reparation that is due to it."

***

8. The Court will first address the question of its jurisdiction over the request for interpretation submitted by Nigeria. Nigeria states that, in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Cameroon alleged that Nigeria bore international responsibility "for certain incidents said to have occurred at various places at Bakassi and Lake Chad and along the length of the frontier between those two regions".
Cameroon is also said to have "made allegations involving a number of such incidents in its Application of 29 March 1994, its Additional Application of 6 June 1994, its Observations of 30 April 1996 . . . and during the oral hearings held from 2 to 11 March 1998". According to Nigeria, Cameroon had "also said that [it] would be able to provide information as to other incidents on some unspecified future occasion". Nigeria contends that the Court's Judgment of 11 June 1998 does not specify "which of these alleged incidents are to be considered further as part of the merits of the case". Thus Nigeria maintains that the Judgment "is unclear [as to] whether Cameroon was entitled at various times, after the submission of its Amended Application, to bring before the Court new incidents".

Nigeria further emphasizes "the inadmissibility of treating as part of the dispute brought before the Court by the Applications of March and June 1994 alleged incidents occurring subsequently to June 1994". Cameroon, it is said, is entitled in this case to submit, in due course, only "additional facts in amplification of incidents previously adverted to"; it was not entitled to submit "entirely new and discrete incidents which are made the subject of new claims of responsibility". The Judgment of 11 June 1998 was accordingly to be interpreted as meaning "that so far as concerns the international responsibility [of] Nigeria . . . the dispute [p 35] before the Court does not include any alleged incidents other than (at most) those specified in [the] Application . . . and Additional Application".

9. For its part, Cameroon recalls in its written observations on Nigeria's request for interpretation that, in its Judgment of 11 June 1998, the Court rejected seven of the preliminary objections of lack of jurisdiction and inadmissibility raised by Nigeria and stated that, in the circumstances of the case, the eighth objection was not of an exclusively preliminary character; in that Judgment, the Court further recognized that it had jurisdiction to adjudicate upon the dispute and found that the Application filed by the Republic of Cameroon on 29 March 1994, as amended by the Additional Application of 6 June 1994, was admissible. Cameroon declares that the Parties "do not have to 'apply' such a judgment; they only have to take note of it". While leaving the question to the appreciation of the Court, it states that "there are very serious doubts about the possibility of bringing a request for interpretation of a judgment concerning preliminary objections".

*

10. Article 60 of the Statute provides: "The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party." This provision is supplemented by Article 98 of the Rules of Court, paragraph 1 of which provides: "In the event of dispute as to the meaning or scope of a judgment any party may make a request for its interpretation . . ."

By virtue of the second sentence of Article 60, the Court has jurisdiction to entertain requests for interpretation of any judgment rendered by it. This provision makes no distinction as to the type of judgment concerned. It follows, therefore, that a judgment on preliminary objections, just as well as a judgment on the merits, can be the object of a request for interpretation. However,

"the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, . . . a request which has not that object does not come within the terms of this provision." (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No.13, p. 11.)

In consequence, any request for interpretation must relate to the operative part of the judgment and cannot concern the reasons for the judgment except in so far as these are inseparable from the operative part.

11. In the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Nigeria had put forward a sixth preliminary objection "to the effect that there is no basis for a judicial determination that Nigeria bears international responsibility for alleged frontier incursions". In its Judgment of 11 June, the Court summarized Nigeria's position on this point:

"Nigeria contends that the submissions of Cameroon do not meet the standards required by Article 38 of the Rules of Court and general principles of law regarding the adequate presentation of facts . . . What Cameroon has presented to the Court does not give Nigeria the knowledge which it needs . . . 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 . . . While Nigeria acknowledge[d] that a State has some latitude in expanding later what it ha[d] said in its Application and in its Memorial, Cameroon [was] said to be essentially restricted in its elaboration to the case as presented in its Application" (I.C.J. Reports 1998, p. 317, para. 96).

In the operative part of its Judgment of 11 June 1998, the Court "rejects the sixth preliminary objection." The reasons for this are set out in paragraphs 98 to 101 of the Judgment. These deal in detail with Cameroon's rights as regards the presentation of "facts and legal considerations" that it might wish to put forward in support of its submissions seeking a ruling against Nigeria (ibid., p. 318, para. 99). These reasons are inseparable from the operative part of the Judgment and in this regard the request therefore meets the conditions laid down by Article 60 of the Statute in order for the Court to have jurisdiction to entertain a request for interpretation of a judgment.

**

12. The Court will now examine the admissibility of the request of Nigeria. The question of the admissibility of requests for interpretation of the Court's judgments needs particular attention because of the need to avoid impairing the finality, and delaying the implementation, of these judgments. It is not without reason that Article 60 of the Statute lays down, in the first place, that judgments are "final and without appeal". Thereafter, the Article provides that in the case of a "dispute as to the meaning or scope of the judgment", it shall be construed by the Court upon the request of any party. The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained. The Court adheres to what it has previously held, namely that

"the real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute [p 37] would nullify the provision of the article that the judgment is final and without appeal." (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports 1950, p. 402.)

In its Judgment on the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)(Tunisia v. Libyan Arab Jamahiriya), the Court similarly held that "it is however a condition of admissibility of a request for interpretation . . . that the real purpose of the request be to obtain an interpretation - a clarification of that meaning and scope (I.C.J. Reports 1985, p. 223, para. 56)."

13. In the present case, the Court would initially recall what were Cameroon's submissions with regard to the alleged frontier incidents in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria. In its Application as amended by its Additional Application, Cameroon complained in 1994 "of grave and repeated incursions of Nigerian groups and armed forces into Cameroonian territory all along the frontier between the two countries". It further requested the Court to adjudge that the "internationally unlawful acts" alleged to have occurred in the Bakassi and Lake Chad regions involve the responsibility of Nigeria.

In its Memorial of 16 March 1995, Cameroon developed these submissions by emphasizing that, as a result of the "internationally unlawful acts" set out in pages 561 to 648 of the Memorial, Nigeria had incurred international responsibility. This document dealt not only with incidents in the Bakassi and Lake Chad regions, but also with those in other frontier areas and in particular at Tipsan. Then, in its observations of 30 April 1996, Cameroon confirmed its previous submissions and in Annex I to those observations listed incidents relating to 42 localities situated along the length of the frontier. Some of the incidents mentioned in Cameroon's Memorial and observations had occurred after the date of the Additional Application.

14. To these submissions, Nigeria raised its sixth objection to admissibility. It argued that Cameroon's initial Application as amended restricted itself to vague allegations as to "the dates, circumstances and precise locations of the alleged incursions and incidents". It added that this Application "made no claim as to Nigeria's international responsibility in relation to acts occurring outside Bakassi and Lake Chad". It considered that Cameroon must "essentially confine itself to the facts . . . presented in its Application". From this it concluded that any subsequent attempt to enlarge the scope of the case was inadmissible and that "additions" presented subsequently with a view to establishing Nigeria's responsibility must be disregarded. [p 38]

15. By its Judgment of 11 June 1998, the Court rejected Nigeria's sixth preliminary objection. The Court explained that "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" (I.C.J. Reports 1998, p. 318, para. 98). The Court added that the term "succinct" used in Article 38, paragraph 2, of the Rules ("[the Application] 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") does not mean "complete" and does not preclude later additions to the statement of the facts and grounds on which the claim is based. The Court also found that the latitude of an applicant State, in developing what it has said in its application, is not strictly limited, as suggested by Nigeria. The Court underlined, inter alia, that that conclusion cannot be drawn from the Court's pronouncement on the importance of the point of time of the submission of the application as the critical date for the determination of its admissibility as "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)" (ibid., p. 318, para. 99). The Court wishes to reiterate that the question of the conditions for the admissibility of an application at the time of its introduction, and the question of the admissibility of the presentation of additional facts and legal grounds, are two different things. The Court indicated, in its Judgment of 11 June 1998, that the limit of the freedom to present additional facts and legal considerations is that there must be no transformation of the dispute brought before the Court by the application into another dispute which is different in character. Whether that is the case ultimately has to be decided by the Court in each individual case in which the question arises. With regard to Nigeria's sixth preliminary objection, the Judgment of 11 June 1998 has concluded that "in this case, Cameroon has not so transformed the dispute" (ibid., p. 319, para. 100) and that Cameroon's Application met the requirements of Article 38 of the Rules. Thus, the Court made no distinction between "incidents" and "facts"; it found that additional incidents constitute additional facts, and that their introduction in proceedings before the Court is governed by the same rules. In this respect, there is no need for the Court to stress that it has and will strictly apply the principle of audi alteram partem.

16. It follows from the foregoing that the Court has already clearly dealt with and rejected, in its Judgment of 11 June 1998, the first of the three submissions presented by Nigeria at the end of its request for interpretation, namely that

"(a) the dispute before the Court does not include any alleged incidents other than (at most) those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994".

The Court would therefore be unable to entertain this first submission without calling into question the effect of the Judgment concerned as res judicata. The two other submissions, namely that

"(b) Cameroon's freedom to present additional facts and legal considerations relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994",

and that

"(c) the question whether facts alleged by Cameroon are established or not relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994",
endeavour to remove from the Court's consideration elements of law and fact which it has, in its Judgment of 11 June 1998, already authorized Cameroon to present, or which Cameroon has not yet put forward. In either case, the Court would be unable to entertain these submissions.

It follows from the foregoing that Nigeria's request for interpretation is inadmissible.

**

17. In view of the conclusions it has reached above, there is no need for the Court to examine whether there is, between the Parties, a "dispute as to the meaning or scope of the judgment" of 11 June 1998, as contemplated by Article 60 of the Statute.

**

18. In its written observations, Cameroon seeks not only to have the Court declare Nigeria's request for interpretation inadmissible, it also requests that, in conformity with Article 97 of the Rules, Nigeria be charged with the additional costs caused to Cameroon by Nigeria's request.

Article 64 of the Statute provides that "unless otherwise decided by the Court, each party shall bear its own costs." This provision is given effect by Article 97 of the Rules of Court. While anticipating the possi-[p 40]bility of exceptions, in circumstances which it does not specify, Article 64 confirms the

"basic principle regarding the question of costs in contentious proceedings before international tribunals, to the effect that each party shall bear its own". (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 212, para. 98).

The Court sees no reason to depart in the present case from the general rule set forth in Article 64 of the Statute.

***
19. For these reasons,

The Court,

(1) by thirteen votes to three,

Declares inadmissible the request for interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, presented by Nigeria on 28 October 1998;

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

AGAINST: Vice-President Weeramantry; Judge Koroma; Judge ad hoc Ajibola.
(2) unanimously,

Rejects Cameroon's request that Nigeria bear the additional costs caused to Cameroon by the above-mentioned request for interpretation.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-fifth day of March, one thousand nine hundred and ninety-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Nigeria and the Government of the Republic of Cameroon.

(Signed) Stephen M. Schwebel,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.[p 41]

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 42]

 


Dissenting opinion of Vice-President Weeramantry

Judgment on preliminary objections - Applicability of Article 60 - Interpretation may not be sought to seek revision or reopen matter which is res judicata, or for gaining time - Substantial nature of Nigeria's request - Need to differentiate between additional facts and additional incidents - Need to differentiate between facts confirmatory of border disputes and facts giving rise to international responsibility - Critical date for ascertaining substance of Application - Obligation of Court to construe "additional facts".

Though rarely invokedFN1, and subject to strict limitations, the right of a party to seek clarification of a judgment, in the event of a dispute as to its meaning and scope, is an important part of the scheme of rights conferred on litigants by the Statute of the Court. In a sense, it carries to its logical completion the process of adjudication of the matters that come before the Court. Since I am in disagreement with some parts of the Court's Judgment, I feel obliged, in view of the importance of the principles involved, to set out the reasons for my disagreement in some detail.

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FN1 Apart from the present Application, there have been four cases before the Permanent Court of International Justice and the present Court: Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation), Judgment No. 3; Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów); Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya).
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I agree with the Court's conclusion that the Application of Nigeria meets the conditions laid down in Article 60 of the Statute of the Court for the purpose of giving the Court jurisdiction to entertain Nigeria's request for interpretation of the Judgment. However, for reasons which I shall set out, I find that I am not in agreement with the Court's conclusion that the request of Nigeria is inadmissible. It is my respectful view that Nigeria's request is legally admissible, and should have been entertained by the Court. The clarification, one way or the other, of the matter raised by Nigeria would also have achieved the great practical advantage of placing both Parties on clearer ground regarding the exact ambit of their future conduct of these proceedings.

Before addressing this particular matter, I would like to associate myself also with the Court's observation that "a judgment on preliminary [p 43] objections, just as well as a judgment on the merits, can be the object of a request for interpretation" (para. 10). Even in preliminary objections, there may well be some aspect which genuinely needs clarification. Considerations of fairness in the presentation of one's case, as well as the right of a party to know precisely what the Court has decided, cannot be overridden by the circumstance that the Court is operating within the framework of its preliminary objections to jurisdiction. Such a technical and procedural consideration cannot in principle deprive a party of its substantive right to seek clarification of a matter so crucial to it as the meaning of the Court's judgment. The principle of affording parties such essential assistance as they are entitled to, in terms of the Court's Statute and Rules, cannot vary, depending on whether the proceedings are in regard to preliminary objections or at the stage of hearing upon the merits. This is all the more so, having regard to the fact that Article 79, paragraph 7, of the Rules expressly gives to the Court's decision on preliminary objections the status and form of a judgment.

The Court must therefore consider, irrespective of the preliminary context of the proceedings, the entitlement of a party to seek clarification of the Court's judgment. In proceedings upon the merits as well as in preliminary objections proceedings, there are of course certain clear limitations to the entitlement of parties to resort to Article 60. They may not, for example, under the guise of an application under Article 60, attempt to seek revision of a judgment or reopen a matter which is already res judicata. Nor are parties entitled, in any circumstances, to use a request for clarification as a device for gaining time. All of these are to be discountenanced, and the Court will in no way lend its assistance to such procedures.

The request by Nigeria for interpretation is, on the contrary, of a substantial character affecting the very presentation of its case. Whether Cameroon may present additional incidents, as opposed to additional facts, in terms of the Judgment, seems to me to raise an important question which needs clarification from the point of view of adequate preparation and presentation of Nigeria's position. The question arises from the phraseology in paragraph 99 of the Judgment which indicates that it has become an established practice for States submitting an application to the Court to receive the right to present "additional facts" and legal considerations. The Court indicates in that paragraph that 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 into another dispute which is different in character.

It is necessary at this stage to advert to some of the background features of this particular case.

Border incidents were alleged by Cameroon, both to show that the boundary is in dispute, and as giving rise to international responsibility on the part of Nigeria. The legal significance of these incidents thus falls [p 44] into two distinct categories. Fresh incidents not pleaded initially may, on the one hand, reinforce the contention that the boundary is in dispute. They may, on the other hand, not involve a challenge to the boundary, but have other implications. Indeed, the Court has expressly recognized this possibility in paragraph 90 of its Judgment when it observed, "[h]owever, not every boundary incident implies a challenge to the boundary." In the event that such fresh incidents are relevant as the basis of a claim of international responsibility, they would constitute fresh claims subsequent to the joinder of issue between the parties. As separate claims, each claim would be based upon its own particular facts, each claim would stand or fall independent of the others, and each claim would give rise to a separate item of relief distinct from the relief flowing from other and different incidents which have already been pleaded.

When, therefore, there is a reference to subsequent facts, there are two clear distinctions that need to be drawn, namely:

(1) the distinction, on the one hand, between proof of new facts supportive of an incident already alleged, and new facts which constitute a new incident in themselves; and

(2) the distinction between new facts which are confirmatory of the existence of a boundary dispute and new facts which, in the form of new incidents, are averred as the basis of claims of State responsibility.

Do "additional facts", as referred to in the Judgment, refer comprehensively to all these categories of fact, irrespective of whether they are fresh facts relating to incidents already pleaded, or fresh incidents; and irrespective also of whether they are confirmatory of a border dispute or the basis of claims of State responsibility?

These are the questions in respect of which Nigeria seeks clarification. Bearing in mind that the object of a request for clarification, as stated in Factory at Chorzów is "to enable the Court to make quite clear the points which had been settled with binding force in a judgment"FN2, it seems to me that this object is fully satisfied by Nigeria's request.

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FN2 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), P.C.I.J., Series A, No. 13, p. 11. See also Manley O. Hudson, The Permanent Court of International Justice, 1972, Louis B. Sohn (ed.), p. 59.
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Certainly the phraseology used in the Judgment could be construed so as to include fresh incidents, as opposed to fresh facts, and facts confirmatory of a boundary dispute as well as facts unrelated to boundary disputes which are the basis of claims of State responsibility. Since it can comprise facts in all these categories which have occurred after the filing of pleadings, there is a substantial difficulty facing the party that has to reply to them. It is in respect of this difficulty that Nigeria seeks clarification. [p 45]

The basic principle that the new facts should not transform the dispute into one of a different character may well be transgressed by the presentation of new facts which amount to new claims in the sense of being fresh claims of international responsibility. There is therefore a substantive basis for Nigeria's claim for clarification, in addition to the purely procedural one discussed. It is to be noted in this connection that a substantial part of Cameroon's MemorialFN3 deals with the international responsibility of Nigeria, so that this represents an important aspect of Cameroon's case. Chapter 6 of this Memorial is entirely devoted to "The Internationally Wrongful Acts Attributable to Nigeria", and paragraph 6.01 of this Chapter reads:

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FN3 Around 50 pages in Part II of the Observations on the Nigerian Preliminary Objections, pp. 283-335.
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"The Federal Republic of Nigeria does not just formally dispute the frontier between it and Cameroon; it is also engaged in various activities contrary to general international law and to a variety of international legal instruments to which it is a party."

A number of wrongful acts are then alleged, and the Memorial goes on to set out Cameroon's entitlement to reparation for the damage caused to the Republic of Cameroon and to its nationalsFN4. Each of these separate acts would presumably be the subject of claims by the Republic for damages sustained by itself as well as by its nationals. It would have to be independently proved, and even though it is subsequent to the date of the Application, Nigeria would have to marshal the necessary evidence to rebut it, quite independently of such other evidence as it might have assembled to rebut other and distinct claims arising from other and distinct incidents.

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FN4 Pp. 323-330.
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Consequently, the question whether Cameroon can, under the Court's Judgment, add fresh incidents, each of which may ground a separate claim, is a question of great moment to Nigeria. The question arises whether fresh incidents giving rise to fresh claims for compensation are included within the terms of the Court's Judgment.

If such incidents are permitted to be brought in, where does one draw the line? Nigeria's Application seeks clarification of this issue, and I believe Nigeria is entitled to seek that clarification.

Nigeria accepts that a party is entitled to present additional facts relating to incidents already pleaded, even if those facts should be discovered at a point of time subsequent to the filing of pleadings. They still relate to the incidents alleged, and it is quite conceivable that additional material [p 46] in support of the incidents alleged may be uncovered at a later point of time.

This is a totally different situation from the entitlement of a party to plead fresh incidents arising subsequent to its earlier pleadings on the basis of which its opponent was brought to Court. While opening the door to a variety of new allegations being made, and altogether fresh incidents being referred to right up to the time of hearing, it raises questions also as to the critical date for the purpose of ascertaining what constitutes a party's claim. Does a party's claim consist of a situation as prevailing at the date of the claim, or is it open to a party, without any limitation of time, to keep averring and pleading fresh incidents that occur right up to the date of hearing? If not right up to the date of hearing, what is the cut-off point?

If such possibilities exist of expanding the content of an application after the application has been filed, this would have major implications in relation to procedure and the conduct of proceedings.

This Court held in LockerbieFN5 that the relevant date for determining the admissibility of an application is the date of its filing. This was but a specific application of the general rule that the critical date for assessing a party's claim is its date of institution. It is by reference to that date that it will be ascertained whether the applicant has a justiciable and admissible claim, and it is by reference to that date that the content of that claim will be determined. In regard to content, it will no doubt be possible for a claim to be increased subsequent to institution by such additions as claims to continuing damages or interest, which are intrinsically linked to the claim already made, but it would at least prima facie appear to be contrary to principle that new claims based on new incidents and new evidence may be added, where these have arisen after that date. Applicants, like plaintiffs, come into court on the basis that they have a justiciable claim at the date of the application, and that is the date by which, prima facie at any rate, their claim would be judged, whether in regard to admissibility or content. The content of that complaint would not ordinarily be capable of expansion by incidents arising after the date of the application, unless the Court so indicates. A party is entitled, in case of doubt, to know whether the Court's order gives such an indication.

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FN5 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, I.C.J. Reports 1992, para. 44; and 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), Provisional Measures, I.C.J. Reports 1992, para. 43.
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Another way of viewing this matter is to consider that a dispute must [p 47] exist at the time of the application. That is the critical date for examining both the existence and the substance of the dispute. If the facts then existing were not sufficient to form the basis of a party's claim, that insufficiency cannot be supplied by the introduction of later incidents to shore up that insufficiency. A party's case must be tested as it was on the date of filing of the application - and this is the critical date for determining whether it has approached the Court with a cause of action which is ripe for hearing.

This considerable practical distinction between the allegation of fresh facts and the allegation of fresh incidents, and the equally significant distinction between new facts confirmatory of a boundary dispute and new facts forming the basis of State responsibility, entitle a party, in my view, to know which category is comprehended within the terms of a Court order allowing a party to present additional facts. If, as stated in Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya)FN6, a condition of admissibility to a requirement for interpretation is that the real purpose of the request should be to obtain an interpretation, it is my view that this precondition to admissibility is satisfied in the present case.

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FN6 I.C.J. Reports 1985, p. 223. See, also, Asylum case, I.C.J. Reports 1950, p. 402.
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I respectfully take the view, therefore, that Nigeria's request for clarification is not inadmissible, and that Nigeria is entitled to ask the Court for guidance on the question whether the terms of its Judgment admitted the possibility of future incidents being urged by Cameroon. This is clearly a dispute as to the meaning or scope of the Judgment, which the Court is under an obligation to construe under Article 60 at the request of a party seeking clarification.

In so concluding, I wish to stress that this view casts no reflection whatsoever upon the phraseology adopted in the Judgment. A judgment, however well crafted, could well embody phraseology which, in the context of a given set of circumstances, may require some clarification. It is one of those incidents of litigation which the judicial experience of ages has shown may arise from time to time, and it is precisely for this reason that Article 60 of the Court's Statute made such clear provision for the right to interpretation. Indeed, the Article was drafted so strongly as to cast the Court's duty in imperative terms: "In the event of a dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party" (emphasis added). I refer in this context to the Factory at Chorzów case where the Permanent Court observed that where there is a difference of opinion as to whether a particular point has or has not been decided, this comes within the terms of the provision in question (Art. 60), "and the Court cannot avoid the duty incumbent [p 48] upon it of interpreting the judgment in so far as necessary, in order to adjudicate upon such a difference of opinion" (emphasis added). This is part of a passage in the Factory at Chorzów JudgmentFN7 which, in the words of Rosenne, has become the classic statement of the law on this pointFN8.

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FN7 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), P.C.I.J., Series A, No. 13, pp. 11-12.
FN8 Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. III, 1997, p. 1679.
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A difference of opinion has clearly arisen here, with Nigeria contending for one interpretation, and Cameroon for another. Either interpretation can well be attributed to the passage, thus giving rise to a genuine doubt regarding the meaning and scope of the Judgment. In the interests of justice, parties would be entitled, when a genuine doubt arises regarding the meaning or scope of a judgment, to ask for clarification, and this is especially so when such a construction is necessary for the proper conduct of their proceedings and the proper presentation of their case.

For these reasons, I conclude that both in the interests of justice and in terms of the express provisions of Article 60, Nigeria is entitled to seek a construction of the Judgment by the Court.

(Signed) Christopher Gregory Weeramantry. [p 49]


Dissenting opinion of Judge Koroma

Inadmissibility of request seemingly casuistic - Interpreting while not interpreting the Judgment - Nigeria's submissions - Cameroon's submissions - Existence of dispute - Acknowledgement of Court's jurisdiction - Relevant provisions of Statute and Rules of Court - Need to comply with obligations and Rules of Court in bringing matter before the Court - Absence of clarification could lead to prolongation and confusion of pleading - Res judicata not contested - "Interpretation" has not resulted in clarification and definition of scope and meaning of Judgment - Request fulfils criteria for interpretation - Court should have acceded to request.

1. I wish to state that I consider the reasons given in the Judgment for finding the request inadmissible to be somewhat casuistic and, with regret, I am unable to support the Judgment.

2. To have declared the request inadmissible after the Court had stated in paragraph 15 of the Judgment that it made no distinction in its Judgment of 11 June 1998 between "incidents" and "facts" can be read as an oblique, though, in my view, unsatisfactory "interpretation", which does not clarify the meaning and scope of that Judgment. Regrettably, by taking this position the Court would, on the one hand, seem to be trying to meet the object of the request while at the same time rejecting the request itself.

3. Nigeria, in its Application requesting the Court to interpret its Judgment of 11 June 1998, had sought the Court's clarification as to whether Cameroon was entitled at various times, after the submission of its amended Application, to bring before the Court new "incidents", following Cameroon's allegations that Nigeria bore international responsibility "for certain incidents said to have occurred at various places in Bakassi and Lake Chad and along the length of the frontier between those two regions". Nigeria also contended that Cameroon had made allegations involving a number of such "incidents" in its Application of 29 March 1994, its Additional Application of 6 June 1994, its observations of 28 April 1996, and during the oral hearings held from 2 to 11 March 1998. It further pointed out that Cameroon had also stated that it would be able to provide information as to other "incidents" on some unspecified future occasion. It was also its contention that the Court had not specified "which of these alleged incidents are to be considered further as part of the merits of the case". Thus Nigeria maintains that the Judgment "is unclear whether Cameroon was entitled at various times, after the submission of its Amended Application, to bring before the Court new incidents". [p 50]

4. Nigeria submitted that it would be inadmissible to treat as part of the dispute brought before the Court by the Applications of March and June 1994 alleged incidents occurring subsequent to June 1994, and that Cameroon is entitled in this case to submit only "additional facts in amplification of incidents previously adverted to"; that it was not entitled to submit "entirely new and discrete incidents which are made the subject of new claims of responsibility". Nigeria further submitted that the Judgment of 11 June 1998 was accordingly to be interpreted as meaning that:

"so far as concerns the international responsibility [of] Nigeria . . . the dispute before the Court does not include any alleged incidents other than (at most) those specified in [the] Application . . . and Additional Application".

5. Cameroon, in its written observations, inter alia, had contended that it is entitled to rely on all facts, irrespective of their date, that go to establish the continuing violation by Nigeria of its international obligations, and had asked the Court to declare the request inadmissible. Thus a dispute does exist regarding the scope and meaning of the Judgment, and it would have been for the Court to declare that Cameroon is entitled to use only pre-1994 incidents in support of its Application filed in 1994, except, of course, if the Court felt that the scope and meaning of that Judgment was not so limited.

6. In its Judgment the Court acknowledged its jurisdiction, pursuant to Article 60 of the Statute of the Court supplemented by Article 98, paragraph 1, of the Rules of Court, to entertain the request for interpretation of the Judgment. It thereafter proceeded to consider whether the request was admissible, emphasizing that a condition of admissibility of such request is that the real purpose should be to obtain an interpretation - a clarification of the meaning and scope of the Judgment. After considering the submissions, the Court concluded that it had made no distinction between "incidents" and "facts" and found that "additional incidents"FN1 constituted "additional facts"FN1, and that their introduction in proceedings before the Court was governed by the same Rules.

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FN1 Emphasis added.
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7. In my view, reference to future "incidents" cannot be the basis of an application of which the Court has already been seised, since this would suggest that at the time the application was filed such dispute did not exist and, as such, would be inconsistent with the statutory obligations and the proper procedure of the Rules of Court, and the Court should have so stated. Put differently, an application instituting proceedings before the Court cannot be based on "incidents" posterior to the filing of that application, as this could lead to confusion and obscurity as to which "incident" or "incidents" had informed those proceedings. [p 51]

8. It follows that, to the extent that the Court's Judgment of 11 June 1998 had laid itself open to the possibility of misconstruction and confusion regarding its scope and meaning, it was both necessary and appropriate for the Court to clarify and/or interpret that Judgment, so as to rid it of any such misunderstanding and confusion. In this regard, where a party requests the Court to clarify its judgment by stating which incident or incidents the Court would consider as forming the basis of an application and to state the relevant cut-off date, this would appear to me to meet the tests for interpretation within the meaning of Article 60 of the Statute and Article 98, paragraph 1, of the Rules of Court. Consequently, while the Court's statement in this Judgment that it made no distinction between "incidents" and "facts" would appear to provide a measure of interpretation, it still leaves open the possibility of misconstruction and confusion, which, if not clarified, could even be at variance with the relevant provisions of the Statute and Rules of Court.

9. Germane to this issue are Article 40 of the Statute and Article 38 of the Rules of Court. Article 40, paragraph 1, of the Statute of the Court provides as follows:

"1. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated."

While Article 38 of the Rules of Court stipulates that

“1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the State against which the claim is brought, and the subject of the dispute.

2. The application shall specify 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.”

10. Accordingly, and in terms of these provisions, in order for a party to seise the Court of an application regarding a dispute, that dispute, as well as the facts and grounds on which it is based, must already exist and be specified.

11. The Court in paragraph 16 of the Judgment also stated that

"The two other submissions, namely that

'(b) Cameroon's freedom to present additional facts and legal considerations relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994; [p 52]

and

(c) the question whether facts alleged by Cameroon are established or not relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994'

endeavour to remove from the Court's consideration elements of law and fact which it has, in its Judgment of 11 June 1998, already authorized Cameroon to present . . ."

and it is therefore unable to entertain the submissions. With respect, this statement leaves itself open to question, especially when it constitutes a ground for rejecting the request. Does the statement mean that since the Court had "authorized" Cameroon to present elements of law and fact, such purported authorization cannot be challenged and if challenged the Court is bound to reject the challenge because it had in the first place authorized their presentation. Furthermore, is it not the prerogative of a party to present the elements of fact and law of its case rather than for the Court to authorize such elements? In the light of such considerations, the statement as formulated appears to leave itself open to procedural as well as juridical challenge.

12. The underlying reason for Article 60 of the Statute is to preserve the integrity and finality of a judgment of the Court - the issue of res judicata - a matter not contested in the request. But the provision supplemented by Article 98, paragraph 1, of the Rules of Court also contemplate and allow for the interpretation/clarification of its judgment by the Court so as to give precision and definition to the scope and meaning of such a judgmentFN2. Where such precision or clarification is missing, a party is entitled to request the Court to make it.

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FN2 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 10.
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13. The lack of clarification regarding the meaning and scope of the Judgment could lead to an unnecessary and conceivable prolongation and confusion of pleadings that could have been obviated by the Court's interpretation of its Judgment.

14. The reasons for the request, and hence the clarification sought, are, in my view, both sound and legitimate and meet the criteria set out in the relevant provisions of the Statute and Rules of Court. The request does not create a new issue and is consequential upon the former proceedings. The Applicant had established its interests, both in law and in fact, as worthy of legal protection, in the sense that, as a Party to the dispute, it has an interest of a legal nature in ensuring that the other Party observes the obligations imposed by the Statute and Rules of Court, and to enable it to respond to the Memorial as appropriate and necessary. The Respondent's interest in the dispute before the Court would include its knowing [p 53] the specific "incidents" as distinct from "facts" relied on in support of the Application and to which it would be expected to respond in its Counter-Memorial.

15. It is my considered opinion that the "interpretation" given of the Judgment has not rendered the clarification and precision of meaning which the request seeks. The Court should have acceded to the request and found it admissible, as it meets all the criteria set out in the relevant provisions of the Statute and Rules of Court as well as in its jurisprudence.

(Signed) Abdul G. Koroma. [p 54]

 

Dissenting opinion of Judge Ajibola

Introduction - Procedural issue - Parties and the need to allow for second round of pleadings - Agreement with the Court's Judgment on jurisdiction and costs - Need for the Court to interpret - Distinction between facts and incidents - Court should have granted Nigeria's request - Article 36 (2) of the Statute and meaning of "dispute".

In this Judgment, the Court has decided to reject Nigeria's request for interpretation as inadmissible. I have decided to file this dissenting opinion because I do not agree with the conclusion reached by the Court. This was an Application filed by Nigeria on 28 October 1998 requesting the Court to interpret the scope and meaning of paragraphs 99 and 100 of its Judgment of 11 June 1998. This request by Nigeria for interpretation is quite independent from the pending case filed by Cameroon as entered in the General List of the Court.

Cameroon filed its observations to the Application on 13 November 1998 and made the following submissions:

"1. The Republic of Cameroon leaves it to the Court to decide whether it has jurisdiction to rule on a request for interpretation of a decision handed down following incidental proceedings and, in particular, with regard to a judgment concerning the preliminary objections raised by the defending Party.

2. The Republic of Cameroon requests the Court:

- Primarily:

To declare the request by the Federal Republic of Nigeria inadmissible; to adjudge and declare that there is no reason to interpret the Judgment of 11 June 1998;

- Alternatively:

To adjudge and declare that the Republic of Cameroon is entitled to rely on all facts, irrespective of their date, that go to establish the continuing violation by Nigeria of its international obligations; that the Republic of Cameroon may also rely on such facts to enable an assessment to be made of the damage it has suffered and the adequate reparation that is due to it."

Based on the documents submitted to it, the Court considered that it had sufficient information on the position of the Parties and did not deem it necessary to invite the Parties to "furnish[ing] further written or oral explanations" as provided for in paragraph 4 of Article 98 of the Rules of Court. [p 55]

Quite justifiably, the Court "may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations" (emphasis added). This demonstrably is within the discretion of the Court. There are instances when the Court has exercised this discretion by requesting the parties to furnish further written explanations. For example, such written observations or explanations were allowed in the Asylum case (Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), I.C.J. Reports 1950, pp. 400-401). In that case, although the Application was made by Colombia, the Peruvian Government submitted its observations in a letter of 22 November 1950 and this letter was forwarded to Colombia in order that, if Colombia wished to submit any observations, it could do so by 24 November 1950. In other cases the Court has allowed for "oral explanations". Such examples are reflected in the cases concerning the Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13) and Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, pp. 192-194). There is, however, a compelling reason, as far as the present case is concerned, to request further observations from the Parties. This is clearly reflected in the manner in which the submissions of Cameroon were presented. In its observations Cameroon argues that the Court should declare Nigeria's request inadmissible, but also submits alternatively that the Court should

"adjudge and declare that the Republic of Cameroon is entitled to rely on all facts, irrespective of their date, that go to establish the continuing violation by Nigeria of its international obligations; that the Republic of Cameroon may also rely on such facts to enable an assessment to be made of the damage it has suffered and the adequate reparation that is due to it." (Emphasis added.)

Although Nigeria is aware of the submissions made by Cameroon in its observations, it is deprived of the opportunity to react to such submissions, which not only urge for dismissal but argue further that the situation apparently anticipated by Nigeria is also justified in accordance with the Judgment of the Court. This is a clear indication of the contentious nature of this Application post hoc. It is not out of place in this regard for the Court to take into consideration the terms of Article 31 of the Rules of Court, which provides that:

"In every case submitted to the Court, the President shall ascertain the views of the parties with regard to questions of procedure. For this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter." (Emphasis added.) [p 56]

While the Court may consider it unnecessary for oral explanations to be allowed in the present case, it is, in my opinion, desirable that it should seek to ascertain the reaction of Nigeria to the submissions of Cameroon. Because this Application stands on its own, independent of the original mainline proceedings, and in order for the Court to ensure a full representation of the Parties' views and submissions, a second round of pleadings, which could just take a week, would ensure a juridical equilibrium and safeguard the essential need for audi alteram partem. In my view, therefore, there is need for one more round of observations from the Parties, or at least from Nigeria. The Court has unfettered freedom to decide on the procedure to be adopted as regards the Application requesting interpretation. It may even be advisable in a case like this, where an important and fundamental issue is to be determined, to allow for an oral hearing. In Shabtai Rosenne's view:

"While Article 98 thus leaves the Court with a broad freedom to decide how proceedings in interpretation will be conducted, and in particular whether oral proceedings shall be held, practice indicates in general that the proceedings will be contentious in character (as is inevitable from the word dispute in Article 60 of the Statute and Article 98, paragraph 1, of the Rules). Moreover, proceedings in interpretation are an entirely new case and not incidental proceedings directly relating to the original mainline proceedings." (The Law and Practice of the International Court of Justice 1920-1996, Vol. III, p. 1677.)

In the present Application there are three main issues to be decided upon by the Court, namely jurisdiction, admissibility and costs.

I agree with the Court, without any reservation, on its decision on costs as claimed by Cameroon.

I also agree with the Court regarding its decision on the issue of jurisdiction, and with its finding that "the statement of reasons" is linked with the operative part of the Judgment.

However, as earlier indicated and with due deference to the decision of the Court, this is a case where the Court should consider the Application of Nigeria admissible. Nigeria's request is clear and straightforward. In effect Nigeria, referring to the many incidents mentioned not only in Cameroon's Applications of 29 March and 6 June 1994, but also in its Memorial, observations and repertory of incidents, is asking the Court to clarify which of those incidents are relevant or admissible and which ones are not. Procedurally, and in order to ensure the expeditious determination of Cameroon's original case, the issue of which incidents are admissible or not admissible has become very important to the Parties.

Cameroon, at one stage during the hearings of the case, alleged that there are so many border incidents for which Nigeria should be blamed [p 57] that it cannot possibly give an exhaustive list of them. This well illustrates Nigeria's fear with regard to the content of the Parties' pleadings. During its oral arguments of 3 March 1998 in support of its preliminary objections, Nigeria expressed its views thus:

"But a distinction has to be drawn between properly commenting on objections, and, on the other hand, substantially adding to the case which has to be answered by the respondent State. Just as the Memorial cannot enlarge the scope of the dispute as specified in the Application (although it can amplify the case there set out), even more so is it improper for a State's observations to seek to enlarge the substantive scope of the dispute yet further by bringing forward new circumstances not apparent from the Application and Memorial. This, however, is what Cameroon, by introducing in its observations yet further alleged incidents for which Nigeria is said to be responsible, has done: Cameroon has sought substantially to add to the case set out in its Application as amended, and as elaborated in its Memorial. Those additions should therefore be disregarded."

Nigeria did not dispute the right of Cameroon to amplify in its Memorial in respect of the incidents referred to in its Application, but it clearly rejects Cameroon's right to give details of incidents occurring after the Application has been filed. It is observed that Cameroon referred to many incidents, some in its original Application of 29 March 1994, others in its subsequent amending Application of 6 June 1994, others in its Memorial as well as in its observations. In fact, it catalogued many incidents in the repertory of incidents.

It is thus clear that the issue of these incidents in relation to States' international responsibility has to be addressed by the Court. It is therefore very difficult for the Court to give any meaningful consideration to the incidents as alleged by Cameroon in all of its various submissions to the Court, without determining, from the stage of the pleadings, which of these incidents are admissible and which are not admissible for the purposes of this case. Failure on the part of the Court to give such an interpretation in this regard would be to miss another opportunity to develop international law on this important issue, while at the same time creating difficulties for the Parties as regards their pleadings. Such difficulties would in turn result in delay.

The two paragraphs of the Judgment of 11 June 1998 that Nigeria is requesting the Court to interpret are paragraphs 99 and 100, which read:

"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 [p 58] 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 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." (Emphasis added.) [p 59]

Reading the two paragraphs of the Judgment quoted above, it is clear that the Court has decided on the issue of the procedural right of Cameroon to: (a) develop what it "said" in its "Application" and (b) present "additional facts".

But, quite clearly, the Court has not determined the issue of additional incidents or new incidents. Hence the need for the Court to interpret definitively what is expected from any applicant alleging that certain incidents, although relevant to the application, occurred after the application was filed.

It is my view that Nigeria is raising an important issue of substance on the interpretation of the Court's Judgment of 11 June 1998 which requires a definitive pronouncement of this Court. The question is not strictly speaking one of looking for the meaning of the two quoted paragraphs but rather of the scope of the Court's decision. It is therefore one of ratione temporis.

In view of Cameroon's intention, as stated in its observations (para. 6.04), to raise the issue of new and future incidents, and of the fact that it has indeed already done so at the oral hearings of 2 to 11 March 1998 (incidents of 16 March 1995, 30 April 1996, etc.), it is my considered opinion that the Court should draw a clear line of limitation on pleadings as they relate to the issue of incidents alleged by Cameroon in its Applications of 29 March and 6 June 1994. Put succinctly, the question is, which of the incidents alleged by Cameroon in its Applications will the Court consider as incidents relevant to the present case? In other words, will the Court consider post-1994 incidents along with the pre-1994 incidents or will the Court restrict Cameroon to the pre-1994 incidents only?

In the Nauru case the Court refused to entertain a "new claim" and said that such a new claim could only be entertained if it arose "directly out of the question which is the subject-matter of that Application" (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 30, para. 67; see also Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). In the present case too the Court needs to clarify the category of incidents alleged by Cameroon to be relevant. Are they pre-1994 incidents only, or both pre- and post-1994 incidents?

Equally, the issue of what additional facts are required from Cameroon must be spelled out very clearly by the Court; are these additional facts in relation to the incidents before the Applications of Cameroon in 1994 or do they include additional facts concerning incidents subsequent to the year 1994? If the Court agrees that Cameroon may file additional facts, is the Court also saying that Cameroon can file particulars of additional incidents after 1994?

Cameroon in its observations admits that its freedom is not unlimited, [p 60] but contends that this matter should be left to the merits stage. However, Nigeria is required to file its Counter-Memorial very soon. If, for example, Cameroon is given the latitude by the Court to introduce new elements relating to incidents after 1994, this could involve open-ended pleadings that might result in an indefinite delay and wasting of the Court's time. If, for example, such additional or new incidents (say of 1998-1999) are introduced by Cameroon in its Reply to the Counter-Memorial of Nigeria (which could be an element of surprise) then Nigeria might have to respond to such incidents for the first time in its Rejoinder, which could then also warrant applications from both Parties for further rounds of pleadings and which in turn could continue ad infinitum. Another complex situation could emerge if there are further allegations of new or additional incidents at the close of pleadings or during the oral proceedings of the case on the merits. This might also compel the Parties to request further pleadings.

Apart from the fact that Nigeria's Application requires a decision of the Court one way or the other, a decision on this issue would further enrich the jurisprudence of the Court and serve as a guideline to litigants with regard to the limitations imposed on the content of applications. Quite rightly, the Court should not accept any delay in a matter of this nature; the case should be disposed of expeditiously because of the present situation along the Parties' frontiers. But at the same time there is need for caution; this should not be done at the expense of justice and proper procedure. There is no doubt that the pre-1994 incidents are the facts in issue in this case, and additional facts are indeed welcome to support such incidents; but not facts introduced to buttress post-1994 incidents.

Furthermore, I believe that the ordinary interpretation of the word "dispute" in Article 36, paragraph 2, of the Statute of the Court relates only to pre-existing disputes or incidents that occurred before the filing of an application, but definitely not to a future dispute. Apart from the illogicality of such an interpretation, its consequences could unduly and unnecessarily prolong pleadings before the Court and delay a speedy settlement of cases.

(Signed) Bola Ajibola.

 
     

   

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