Prof. Walter Ofonagoro in this segment argues that there had never been any dispute about the validity of the Rio del Rey boundary since 1893, and that Nigeria’s position at the ICJ was strange as the team tried to argue against the legal validity of the Anglo-German Agreement of April 18, 1893.
NIGERIA emphasized long occupation, peaceful consolidation, and Cameroon’s acquiescence of Nigeria’s long presence at Bakassi, rather than title to the land, as proof of ownership, meaning that she acknowledged Cameroon’s ownership of Bakassi!
1. Nigeria preferred to defend her title to Bakassi Peninsula on the basis of the original title of the City States of Old Calabar (NC.M.10.121), and it completely trivializes the legal significance of the Treaty of Protection between the city states of Old Calabar, and the British Government, signed on July 23, 1884, and July 24, 1884, with the Kings and chiefs of Creek Town and Duke Town, respectively, which had effectively transferred sovereignty over the entire Efik kingdoms embraced in those treaties to Britain. Furthermore, Nigeria in arguing (before the court) that the Treaty of Protection signed in July 1884, between Great Britain and the Efik kingdoms, did not give the British the right to alienate Efik territory to third parties without the express approval of the owners of the land, either ignored or was ignorant of the broad and retroactive sweep of the Foreign Jurisdiction Act, 1890, by which the British Government authorized itself to treat “Protected States” as conquered or ceded territories.
2. The Nigerian defence team further suppressed the legal value of the Anglo-German Agreements of April 29, 1885, July 1, 1890, and April 14, 1893, as Boundary definition Treaties, thereby undermining the legal basis of Nigeria’s claim to sovereignty over Bakassi Peninsula in international law. In sub-paragraph 4 (e) of paragraph 27 of the ICJ’s summary of evidence, Nigeria asserts that “the respective territorial waters of the two states are divided by a median line boundary within the Rio del Rey”, but destroys the evidential value of the Anglo-German Treaty of August 14, 1893, by refusing to cite it in connection with this median line boundary.
Rio del Rey river as boundary
In other words, Nigeria itself, did not recognize the Rio del Rey as the boundary between Cameroon and Nigeria before the Court, but it, at the same time, expected the court to accept the median line boundary at the Rio del Rey, as the boundary between the territorial waters of the two states!
3. Finally, Nigeria even while insisting that the Maroua Agreement of 1975 was illegal, explained that under that Agreement, she and Cameroon had been drilling oil on both sides of the 1975, Ngo/Coker boundary line based on the said “illegal” Agreement. Effectively, Nigeria was acknowledging in Court, only the boundaries covered by legal instruments such as
a) The paragraphs 3-61 of the Thomson-Marchard Declaration of 1931, which covered the Boundary inland from the Akwa Yafe River to the Ebeji River,
b) The protectorate Order-in-Council of August 1946, which also covered portions of the land boundary north of the Akwa Yafe River
c) Paragraphs13 to 21, of the Anglo-German Treaty of March 11, 1913, and
d) Articles XV to VII of the Anglo-German Treaty of March 11, 1913, to the exclusion of Boundary Agreement No. 260 of April 29, 1885; No. 263 of August 2, 1886; No. 270 of July 1, 1890; and No. 273 of April 14, 1893, which she failed to acknowledge as Boundary treaties.
e) In their place, Nigeria presented the Yaoundé I and II Declarations, and the Maroua Agreement of June 1, 1875, as valid and binding agreements between the two countries, while also arguing that the Government of Nigeria regarded the Maroua Agreement of 1975 as illegal .
4. By this presentation, Nigeria failed to accord due relevance to the portion of the Nigerian/Cameroon Boundary from Archibong Creek, through the Rio del Rey Creek to the sea. Instead, Nigeria offered the Yaoundé I and II, Declarations, and the Maroua Declaration of 1975 as the maritime boundary between her and Cameroon, taking off south westwards to the sea from the Akwa Yafe River. The Rio del Rey Boundary is not presented to the court as the land/sea endpoint of the boundary between Nigeria and Cameroon on the sea coast. In this manner, Nigeria created the impression before the Court, that there was no land boundary from the sea to the Akwa Yafe River. This is a purely calculated concealment. The Rio del Rey boundary, existing since 1893 till date, was, at this point, completely ignored.
The Nigerian defence appeared more interested in issues affecting oil prospecting off-shore Bakassi. Nigeria explained that “the Cameroonian government has been prospecting for oil in the area which it considered as falling within her territory under the 1975 Maroua Declaration. Nigeria too has been prospecting for oil in the same zone. But according to geological surveys, productivity of oil in the zone has a life span of only two years”. (Paragraph 10.105-10.106)
Nigeria kept stressing Cameroon’s acquiescence to her peaceful possession of Bakassi; and that Cameroon has no system of administration in place in Bakassi, other than acts of harassment from Cameroonian soldiers, sometime in 1968, which were aimed at some Nigerian fishing ports.
Defending her overeignty
It is obvious that Nigeria did not even try to defend her sovereignty over Bakassi at the ICJ, and accepted all of Cameroon’s averments as regards all the legal authorities cited by Cameroon. Only the owner of a territory can acquiesce in its use. Nigeria was saying by its emphasis of Cameroonian “acquiescence”, that Cameroon owned Bakassi.
Nigeria’s defence was a most embarrassing display of monumental ignorance, probably traceable to the glaring absence of any professional historians on the Nigerian defence team, even as resource persons; and consequent inability to challenge the empirical bases of the most basic averments of the Cameroonian claims. Those who ignore the lessons of history, inevitably end up reliving them. Nigeria’s inability to challenge Cameroon’s disregard for 28 years of Boundary delimitation in the area from the coast of the Gulf of Guinea inland to thalweg of the Akwa Yafe river, in her memorandum of “Facts”, may also have been due to the uncritical application, to the stretch of land from the Akwa Yafe river to the Bakassi sea coast, of esoteric theories of what constitutes a Boundary Agreement, and what does not.
Thus, the Nigerian defence team subsumed the Rio Del Rey Boundary Agreement of April 14, 1893 (which clearly made Bakassi a Nigerian territory), under a general “definition of Bakassi Peninsula”, in a theoretical discussion of the El Salvador/Honduras boundary dispute, where the ICJ held that: “where the relevant administrative boundary was ill-defined or its position disputed, in the view of the chamber the two newly independent states in the years following independence may well serve as a guide to where the boundary was, either in their shared view, or in the view acted on by one and acquiesced in by the other. This aspect of the matter is of particular importance in relation to the status of the islands by reason of their history.”
On this peg, the Nigerian defence team hangs its attempt to discredit the Rio del Rey Boundary of 1893: “In the submission of the Nigerian Government these statements of principle apply to the circumstances of the Bakassi Peninsula in the period after the independence of Nigeria on October 1, 1960. The Republic of Cameroon became independent on January 1, 1960. The definition of the Bakassi Peninsula “For the present purposes the Bakassi Peninsula has the limits in the Atlas on Map 36.
These limits more or less coincide with the boundary adopted in the Anglo-German Agreement concluded on April 14,1893 (NCM Paragraph 27), but with a northward extension to the Akpa Yafe, by way of the creek two kilometres east of Archibong…….In this connection it is relevant to keep in mind the distinction between a formal basis of title, for example, a description of a boundary in a treaty, and the effort of acts of administration, which have the role of showing the territorial expanse of a title.”
There had, however, never been any dispute about the validity of the Rio del Rey Boundary, since 1893. Nigeria’s position was indeed very strange! One could be forgiven for wondering who the Nigerian team was representing at the Court, Cameroon or Nigeria? We have seen how the Nigerian team tried to argue against the legal validity of the Anglo-German Agreement of April 14, 1893, describing it as a mere “administrative arrangement”, and applying to Bakassi, stare decisis relevant to islands! But a peninsula is not an island, and a formal agreement, negotiated painstakingly over the period, April 29, 1885 to April 29, 1893, which contained specific details of the Rio del Rey Boundary from the sea to the Archibong Creek, signed in Berlin by four very senior officials of the German and British Colonial Governments at the level of the Consul-general and Commissioner (equivalent to the Governor) of Oil Rivers Protectorate; the Head of the British Embassy in Berlin; and two German Privy Councilors, one of them, an Imperial Privy Councilor, and the other, the Chief of the Colonial Department of the Imperial German Foreign Office, could not be described, by any stretch of the imagination, as a mere “administrative arrangement.”
In the earlier stages of the negotiation of the Rio del Rey Boundary, all consolidated in the April 14, 1893 Agreement, the negotiations had been carried out, and Agreements reached by the following high British and German potentates:
1) No. 260, 1885: Lord Granville, British Foreign Minister and Count Munster, the German Foreign Minister.
2) No. 269, 1886, was negotiated by the British Foreign Secretary, the Earl of Roseberry, and the German Ambassador to London, Count Hatzfeldt.
3) No. 270, 1890 was negotiated and signed by
(1) Sir Edward Baldwin Malet, Her Britannic Majesty’s Ambassador Extra-Ordinary and Plenipotentiary in Berlin;
(2) Sir Percy Anderson, Chief of the African Department of Her Majesty’s Foreign Office;
(3) General Von Caprivi, the Chancellor of the German Empire (the Executive Head of the Imperial German Government); and
(4) Dr. Krauel, the Privy Councilor in the German Foreign Office. They signed the Agreements on behalf of their respective Governments.
4) Finally, No. 273, April 14, 1893, was signed by four officials of the two Governments in Berlin, of similar levels of authority and incorporated all previous agreements. It stated very clearly, and without equivocation, that “From the upper end of the Rio del Rey to the sea, that is to say, to the promontory marked West Huk on the above mentioned chart (German Admiralty Chart 1889-90), the right bank of the Rio del Rey waterway shall be the boundary between the Oil Rivers Protectorate and the Colony of Cameroon”.
This agreement was never repudiated or superseded by any other agreement with respect to the stretch of boundary from Archibong River, through the Rio del Rey to the sea, since April 1893. It was the boundary that Nigeria inherited at independence, and it has remained in force from April 14, 1893, until the World Court judgment of October 2, 2002. Indeed, the main objective of the Nigerian defence team at the ICJ in claiming that there was no valid boundary treaty covering the stretch of the Nigeria/Cameroon boundary leading from Akwa Yafe River to the sea at the east end of Bakassi Peninsula, was to facilitate the cession of Bakassi to Cameroon, and to confer international respectability to the new sea boundary drawn from Akwa Yafe River to the sea between April 4, 1971, and June 1, 1975.
We must note that Nigeria never presented to the Court any maps that accompanied the 1893 Boundary with German Cameroon. Documents pleaded, with maps, refer only to the period from 1913 to 1975. Thus, before passing judgment, the ICJ reassured itself on the position of Nigeria vis-à-vis Cameroon’s claims, and the documents on which she based her claims. The Court narrowed the basis of Cameroon’s claims to four legal instruments viz:
1) The Yaoundé I Agreement of August 14, 1970
2) The Yaoundé II Agreement of April 4, 1971
3) The Maroua Declaration of 1 June, 1975
4) The Anglo-German Agreements of March 11 and April 12, 1913.
The Court summarized the legal basis of the dispute as follows:
1) Paragraph 76 of ICJ judgment : “With the exception of what it calls the “Bakassi provisions” of the Anglo-German Agreement of March 11, 1913, Nigeria for its part does not dispute the relevance and applicability of the four instruments invoked by Cameroon with respect to the course of these three sectors of the land boundary”; and again in
2) Paragraph 82: “The Court likewise notes that, with the exception of the provisions concerning Bakassi, contained in Article XVIII et seq. of the Anglo-German Agreement of March 11, 1913, Cameroon and Nigeria both accept the validity of the four above mentioned legal instruments which effected this delimitation”, and
3) Paragraph 85: “Since the land boundary has already been delimited by various legal instruments, it is indeed necessary, in order to specify the course definitely, to confirm that those instruments are binding on the parties, and are applicable. ”
4) Paragraph 215: “The Court also held that the Maroua Declaration constituted an international agreement by which Nigeria was bound…..and accordingly finds that at the time Nigeria accepted that it recognized Articles XVIII to XXII of the Anglo-German Agreement of March 11, 1913, and that it recognized Cameroonian sovereignty over Bakassi.”
In fine, Nigeria had by itself, ceded Bakassi to Cameroon through legal agreements and decisions it had executed with Cameroon from August 14, 1970 to June 1, 1975. Since the Court bound Nigeria and Cameroon to strictly observe the stipulations of Articles XVIII to XXII of the Anglo-German Treaty of March 11, 1913, in paragraph 215, of its judgement, the said Court contradicted itself by not holding them strictly to Section XXI of the said treaty, which forbade the boundary from going due west from the Akwa Yafe river mouth.
It should have been insisted that the boundary go due east from the Akwa Yafe river mouth as stipulated in Article XXI of the said treaty, because it was a mandatory and boundary defining article of that Agreement. It states that “for the purpose of defining this boundary, the navigable channel of the Akwa Yafe River shall be considered to lie wholly to the East of the navigable channel of the Cross and Calabar Rivers”.
By approving the Ngo/Coker boundary line to the sea, while claiming to be upholding Articles XVIII to XXII of the Anglo-German Treaty of March 11, 1913, the ICJ had misdirected itself, and helped in violating the treaty it claimed to be upholding, especially the most important part of the treaty. The ICJ was also surprisingly silent on the enforcement of Article 25 of the said treaty.