Mallam Abdullahi U. Maiyaki, a senior research fellow at the Nigerian Institute of International Affairs, NIIA, Lagos in this second edition of the Vanguard Newspaper series on rethinking the judgment of ICJ and options before the Federal Government where the executive seems to be alone in conceding Bakassi provides fresh insights on options before President Goodluck Jonathan

CONSEQUENTLY, by the foregoing provisions cited above, President Olusegun Obasanjo can be said to have qualified to have entered the Green Tree Agreement of year 2006 between Nigeria and the Cameroun over a transitional programme for the handover of the Bakassi Peninsula in accordance to the ICJ Judgment of October 10, 2002 which ceded the Island accordingly to Cameroun.

Bakassi peninsula residents protesting the ceding of the territory

However, still the said Vienna Convention on the Law of Treaties provided yet another legal facility as contained in Article 46(1) where it states:- “A State may not invoke the fact its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”

Article 46 (2)  further presented some clarifications to the above provisions:“A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”

These provisions of the Vienna Convention on the Law of Treaties equally present Nigeria with an option to challenge a violation of its internal procedures for legitimizing treaties/agreement which the Green Tree Agreement of 2006 did not observe. In the final analysis, it must be noted that the said Green Tree Agreement has nothing practically to do with the ICJ Judgment in terms of its legitimacy or otherwise to have warranted its inclusion by Nigeria in her quest for a revision of the ICJ Judgment of  October 10, 2002. Since the said Green Tree Agreement was entered in year 2006 which was far back after the Court verdict was passed.

What Article 61 of the Statute of the ICJ requires are areas of errors or unknown facts from the Judgment it passed on October 10, 2002 on the case between Nigeria and Cameroun over the disputed sovereignty question of the Bakassi Peninsula. Therefore, we should be more focused and articulate in our submission/presentation for revision of the said ICJ Judgment of October 10, 2002 which ceded our Bakassi Island to Cameroun. Basically, therefore, the preceding paragraphs attempted to situate within some provisions of the Statute of the International Court of Justice and the Vienna Convention on the Law of Treaties areas of ambiguity for Nigeria to explore in her quest for the revision of October 10, 2002 verdict which ceded the disputed Bakassi Peninsula to Cameroun as provided for in the Court Statute Article 61 (Sub-Section 1 & 5) respectively.

Below are presented some articulated thoughts for Nigeria to study and analyze from the separate/dissenting opinions of some of the  Judges of the ICJ as well as some intellectual presentations by renowned legal Jurists of International repute and scholars of International Jurisprudence on their perspectives to the interpretation of the 1884 Treaty of Protection between the Old Calabar Chiefs and Britain which erroneously formed the basis upon which the ICJ was said to have passed its verdict of October 10, 2002 that ceded Bakassi Peninsula to Cameroun.

Declaration and the separate/dissenting opinions of the icj judges against court’s verdict which ceded bakassi island to cameroun on October 10, 2002

The Summary of the ICJ Judgment on the disputed case over the sovereignty question of the Bakassi Peninsula between Nigeria and Cameroun accessed from the Court’s website on the 8/8/2012 at http/www.icj.org/docket/index.php? sum pages 17-19 contained both the declaration and the separate/dissenting opinions of the Court’s Judges for public information and analysis respectively.

Accordingly, therefore, these articulated thoughts are hereby captured for critical preview and consideration by Nigeria to reinforce existing ideas towards the nation’s quest for the ICJ to revisit its contentious verdict which ceded Bakassi Island to the Cameroun on October 10, 2002.  Below are the said opinion of the Court Judges.

1. Separate opinion of Judge Raymond Ranjeva (Madagascan)

(a) Judge Ranjeva is said to have expressed reservation in respect of the analysis set out in paragraph 203 and 209 of the Judgment, which relied on rules of International Law to justify the conclusion that the United Kingdom had authority to determine Nigeria’s boundary with Cameroun (para 209). Judge Ranjeva questioned … the refusal to accord international status to the agreement concluded by the United Kingdom with the Chiefs of Old Calabar justify reference to the concept of the Law at the time”?

Principle of international law

b) Judge Ranjeva was said to have asserted that, no Lawyer can help but be surprised at the Court’s warping of the found principle of International Law….as far as agreement with leaders or eminent dignitaries of what International Law terms “uncivilized nations” are concerned,  Pacta non servanda suni legal “unilateralism.” Judge Ranjeva maintained  that it has already been the target of criticism by legal scholars in the case concerning Frontier Dispute (Burkina-Faso/Republic of Mali) where he noted that the Chamber directly applied Colonial Law, which it recognized as such and as the source of the applicable law. Thus, Judge Ranjeva opined that it would have been preferable to distinguish between the two spheres of law in the present case (i.e. Nigeria vs Cameroun);

c) Judge Ranjeua observed International Law in respect of reaching between European Colonial Powers and Colonial Laws in respect of relation between the metropole and the colonial territories.

Dissenting opinion and Judge Abdul G. Koroma (Sierra Leonian)

(a) Judge Koroma in his dissenting opinion was said to have acknowledge the important note of the Court as a forum for the peaceful settlement of disputes between neighbouring States, to which in his opinion has potentiality to escalate with destructive consequences for the States concerned;

(b) However, Judge Koroma argues that, if the Court as a Judicial organ is to effectively play its assigned role, its decision must be based on the application of relevant conventional and relevant principle of international law, foremost among which is the fundamental principle of pacta sunt servanda, that every treaty in force is building upon the parties to its and must be performed in good faith;

(c)  It was the view of Judge Koroma that the ICJ cannot operate on a different set of principle.  He was reported to have expressed regrets on the face on this occasion the majority of the Court departed from the law and legal principles inflinching  its decision which is, therefore, not sustainable.

(d) Judge Koroma was said to have observed that by failing to uphold the validity of the 1894 Treaty between the Kings and Chiefs of Old Calabar and Great Britain which expressly provided for the gracious protection of the people of Old Calabar by Great Britain, but instead of upholding the validity of the Anglo-German Agreement of 1913 which ceded the territory of the people of Old Calabar to German without their consent;

(e) The ICJ Judge Koroma observed chooses to consecrate political reality over legal validity, since the 1884 Treaty did not entitle Great Britain to transfer the territory of the people of Old Calabar without their consent, and the extent that the 1913 Anglo-German Treaty purportedly had the effect, Judge Koroma then asserted that it should have been declared defective by the ICJ. Hence, Judge Koroma concluded that the Court was in error in upholding Cameroun’s title based on the 1913 Anglo-German Agreement;

Principal claim of Nigeria

(f) Furthermore, Judge Koroma is said to have disagreed with the Court’s response to the principal claim of Nigeria to Bakassi and settlements around Lake Chad of territorial title. In his view, the acquisition of territorial title is not close to what the Court described in the Judgment as “established” modes. Judge Koroma argues that, “if his was so, there would have been no place in international jurisprudence for “prescription” recognition estoppel or preclusion”, or “acquire scene.” In other words proven long usage, coupled with a complex of interests and relations which in themselves have the effect of attracting a territory, and when supported by evidence of acquiescence, constitutes a legal basis of territorial title. Such a basis to territorial title, Judge Koroma argues has been recognized in the jurisprudence of the Court.

(g) Consequently, Judge Koroma maintained that “what was required in this case was proof of the claim and it is for the Court to examine the evidence if it substantiates such claim.” Nigeria, Judge Karma opined “presented substantial evidence to justify the claim of historical consolidation effectiveness linking the Bakassi Peninsula and the settlements around Lake Chad with Nigeria and with the necessary evidence of acquiescence.”

(h) Judge Koroma then asserted that, it should have been the Court to examine such evidence, to determine whether it established title and not to concentrate on the “label” under which the evidence was presented to it. The Court is said to have stated that “apart from the Norwegian Fisheries case the“the notion….has never been used as a basis of title other territorial disputes, whether in its own or in other case law”.  Judge Koroma maintained that “even if these were so which is not the case, what should have mattered most is the evidence and not the appellation applied to it;”

(i) Judge Koroma then concluded that, “it is the approach taken by the Court in considering the law and material evidence before it, which proved to be the flaw in the decision which the ICJ reached.” He maintained that “this approach led the Court quite erroneously to uphold Camerouns title base on the Anglo-German Agreement of 1913 and reject Nigeria’s claim to territorial sovereignty based on original title and historical consolidation.  He took the view that on the basis of the evidence presented to the Court, if the issues of original title historical consolidation and effective authority had been given the due consideration, a different conclusion would have been reached by the Court with regard to Bakassi and the settlements around Lake Chad”.

(j) Judge Koroma then concluded that by insisting that “where the judicial settlement of territorial and boundary disputes are concerned, it is imperative for the Court to apply a valid treaty, and the relevant principles of international law, if the judgment is to be regarded as based on law”.

Declaration of Judge Rezek

Judge Rezek is reported not to have joined the majority in respect of the question of sovereignty over the Bakassi Peninsula and adjacent waters.  His reasons being that, “it is unacceptable for the Treaty concluded in 1884 between Great Britain and the Kings and Chiefs of Old Calabar not to be considered a Treaty, because it is obvious that at the time in question even the colonial Powers were required to show a minimum of good faith”.

Separate opinion of Judge Awn Shawkat Al-khasaweh    (Jordanian)

(a) Judge Al-Khasaweh in his separate opinion to the Court judgment argues that, “even though he associates himself with the reasoning of the Court as  contained in paragraphs 214 to 216 to the verdict”, however, observed that “it was unnecessary and unfortunate for the Court to revert to the questions of the 1913 Agreement between Great Britain and Germany  and to the 1884 Treaty of Protection between Great Britain and the Kings and Chiefs of Old Calabar”. Judge Al-Khasaweh then challenged that “it is morally and legally difficult to reconcile a duty of protection with the subsequent alienation of the entire territory of the protected entity”.

(b) He further observed that “in its judgment, the Court fails to distinguish between Protectorates and colonies and concludes that Great Britain has acquired sovereignty of the Bakassi Peninsula through a derivative root-title”.  The centre questions of the case. Judge Al-Khasaweh maintained, “relate to the interpretation of the 1884 Treaty of Protection and of the subsequent practice of the Parties”.  Notwithstanding however, he argues that “these cannot be circumvented by the invention of a fictitious sub-category of Protectorate named “Colonial Protectorate” where title is presumed to pass automatically and regardless of the terms of the Treaty”.

Continues tomorrow on Vanguard Newspaper