Mallam Abdullahi U. Maiyaki, a senior research fellow at the Nigerian Institute of International Affairs, NIIA, Lagos in this third edition of the Vanguard Media 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.

Continues from yesterday

JUDGE Al Khasaweh fur ther challenged the ICJ where he opined that “no support can be found to the Court conclusion by reference to the Western Sahara or the Island of Palmas decisions.”

The latter he maintained, “mistakenly compounds inequality in status and inequality in power by concluding suzerainty over a native State becomes the basis of territorial sovereignty by the protecting powers”.

Nigerian soldiers lowering the Nigerian flag at Bakassi following the ceding of the territory to Cameroun

(d) In addition, Judge Al-Khasaweh opined that “excessive generalization results in the assumption that local chiefs are deemed to have become virtual colonies or vassal of the States under the suzerainty of the protecting colonial power regardless of the nominal control exercised by the protecting State and the fact that they were often recognized as sovereigns in their subsequent dealings with the protecting State”.

(e) Consequently, Judge Al-Khasaweh then emphasized that “treaties of protection were sometimes a first step toward the development of a full colonial title”, but argues that “until that happened and in the absence of  provisions which may be interpreted as conveying title, they remained a lever and no more”. This conclusion, Judge Al-Khasaweh maintained “is supported by several examples of State practice-in particular by Great Britain contemporaneous with the Berlin Conference”.

Fundamental concern

(f) Furthermore, the ICJ Judge to the October 10, 2002 verdict raised another fundamental concern as to why the disputed case over Bakassi Peninsula “was not addressed within the principle of inter temporal law?” Since historically, he opined, “protection a concept traceable to the Roman Jurist Ulpian excludes notion of ownership and connotes elements of guardianship”.

However, he argues “after 1885, State practice began to deform the original classical concept and converted it into an instrument of colonialism”. He then questioned whether “deformation be taken into consideration in the application of the inter-temporary rules?”

(g) In conclusion, Judge Al-Khasaweh maintained that, “the 1884 Treaty had International Legal standing. It concerned protection and not colonial title and that the Kings and Chiefs of Old Calabar had capacity to enter into Treaty relations”. He argues that “the plain word Treaty suggest that there was no intent to transfer territorial sovereignty.” The situation Judge Al-Khasaweh observed “was not altered until 1913 when Great Britain ceded Bakassi to Germany”.

The cession, he argues implied “powers associated with territorial sovereignty that Great Britain did not possess”. (Source: Summary of the ICJ ruling in disputed Bakassi Peninsula of October 10, 2012 (Ibid) pages 17-19)

Further conceptualisation of the Treaty of Protection between the Old Calabar and Britain of 1884 by highly qualified publicists of the various nations/scholars as required by the ICJ:  Basically, the controversy generated by the ICJ verdict of October 10, 2002 which ceded Bakassi Peninsula to Cameroun, attracted global reactions, questioning the validity of the court’s interpretation of the above cited 1884 treaty of protection between kings and chiefs of the Old Calabar and Great Britain which eventually form the basis of the said judgment.

Solomon Ukhuegbe:  In an article entitled “Bakassi At The Bar of Politics” accessed from the internet observed that “politics of the partition of Africa has led in the transformation of the classical meanings and concept of international protectorate.

External sovereignty

He argues that “classic notion of international protectorate vested only external sovereignty in the protecting power, whereas the colonial protectorate was in fact not a protectorate (except in name) but was rather fully assimilated in legal regime of colony”. (Source: Solomon Ukhuegbe (2002) – Bakassi at The Bar of Politics, Nigeria World Feature Article accessed from nigeriaworld.com/articles/2002/nou/08/htm (p.3-4)

Charles Henry Alexandroniez:  The General Act of the Berlin Conference of February 26, 1885 attracted his concern, because it legitimizes the emerging notion of colonial protectorate. He challenged that “the classic protectorate tended to be converted into a new institution which most of the positivists lawyers at the end of the 19th century and the beginning of the 20th century defined as the colonial protectorate.” He observed that “nowhere in the articles of the Berlin Act is the term colonial protectorate specifically used”, and conceded that “indeed state practice largely continued to adhere to the neutral term protectorate”. (Source:  Solomon Ukhuegbe, (200) Ibid.  p. 4).

Max Huber:  A renowned Swiss publicist and former Judge of the International Court of Justice (ICJ) presented a contrasting view which seems to have been adopted by the Court in its judgment of October 10, 2002.

Max Huber said to have served as the Sole Arbitrator to the 1928 Island of Palmas case argues that, “such a treaty of protection is not an agreement between equals, it is rather a form of internal organization of a colonial territory, on the basis of autonomy of the natives. Sovereignty over native states in this situation becomes the basis of territorial sovereignty as towards other members of the committee of nations. (Source: RIIA, Vol. 11, pp. 858-859, ICJ Report Inside Solomon Ukhuegbe (2002) p.4).

However, this conception has been challenged Judge Al-Khassaweh of the ICJ verdict of October 10, 2002 where he observed that “the object of the protectorate system – like the mandatory system – is a form of guardianship which by definition should exclude notions of territorial ownership o r territorial domination”. (Source: Solomon Ukhuegbe (2002) Ibid. p.4).

Professor James Crowford:  He was said to be one of the Nigeria’s leading counsel in this case at the ICJ. However, his reaction to the General Act of the Berlin Conference of February 26, 1885 seems surprising, not expected of a defence counsel to Nigeria.

He was reported to have stated that “by virtues of the Act of Berlin, colonial powers had full international powers over an African protectorate and that ceding away protectorate territory without the consent of the local kings and chiefs and in breach of the protectorate agreement was lawful”. (Source: Solomon Ukhuegbe (2002) Ibid. p.3).

The character of such a defence counsel to Nigeria to have accorded the Anglo-German Agreement of 1913 legitimacy, can better be described as conspiracy of the highest order, and a traitor masked in our nation’s leading counsels at this ICJ case between Nigeria and Cameroun. No wonder, Nigeria lost the case.

Sir Lindley:  A renowned Jurist and Scholar was reported “as late as 1926 to have insisted that there was no justification for treating African treaties as less than obligatory”.

He maintained that “it is difficult to see how there is no regard to the universality of the practice of grounding a colonial protection upon an agreement with local authority, the importance attached by the European Powers to such agreements in their relations inter-se, the requirements for such an agreement to be regarded other than as a rule of law”. (Source: Ibid. p.3.)

Solomon Ukhuegbe:  The international law analyst viewed such an attitude as more of selectivism, when he observed that, “although, the partition of Africa was largely through procurement of treaties of protection and of friendship with African kings and chiefs, such as that entered into with the Old Calabar”.

He, however, asserted that conventional wisdom dictate that international law from this class of agreements appears to create any legal obligations for the European parties, even when such status seems to be inconsistent with the zeal with which European powers went about this business of treaty making”. (Ibid.p.3). Such inconsistency may eventually lead to morality questions when it forms basis of passing judgment in contentious cases like the one over sovereignty of the Bakassi Peninsula that went to the ICJ.

The foregoing conceptualization of the 1884 treaty of protection between Kings and Chiefs o f the Old Calabar and Great Britain by both some of the judges of the ICJ that adjudicated over the case, but challenged the Court’s verdict of October 10, 2002 in their separate/dissenting opinions raised credibility, validity and the legality of the said ICJ judgment. Consequently, the Court’s action present a breach of its Statute contained in Article 38 (1) (b-d) which among other things requires the Court in its task a consideration of “the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules law”. Article 38 (1)-d).

Nigeria’s Prayers before the ICJ

Accordingly, Nigeria hereby respectively requests the Court to:

1. Interpret the legal status of the various treaties/agreements entered/concluded with a Consul on behalf of the British Government with other treaties/agreements entered in the Niger-Delta with the Royal Niger Company within the context of International Law before the enactment of the General Act of Berlin of February 26, 1885;

2. That Nigeria request the Court to adjudge as whether the treaties entered between kings of Old Calabar and Great Britain in the Niger before February 26, 1885 gives the powers of jurisdiction over their territories as a colony or just a control over foreign relations as conceived;

3. That Nigeria request the Court to state as to whether there is any similarity between the Western Saharan case and the sovereignty dispute over the Bakassi Peninsula case ceded to Cameroun by the ICJ on October 10, 2002;

4. That Nigeria request the Court to define and distinguish between the classical concept of international protectorate in legal framework and colonial protectorate. The Court should also distinguish between colony and protectorate before the enactment of the General Act of the Berlin Conference of February 26, 1885;

5. That Nigeria request the Court to state whether operators of International Law including judges are required to periodically appraise the concept and practice of protection as to whether it connotes guardianship of the protected entity or the notion of territorial ownership/acquisition of territorial domination. (With contribution from Solomon Ukhuegbe (2002) Ibid. pages 1-4).

Nigeria hereby requests the Court to adjudge and declare that;

(a) The judgment of October 10, 2002 in the case between Nigeria and Cameroun over the sovereignty of Bakassi Peninsula was passed on erroneous premise;

(b) That the interpretation of the treaty of protection of September 10, 1884 between the Kings and Old Chiefs of Calabar and Great Britain should mean a treaty of protection, not a surrender of their territories to Britain;

Various interpretations

(c) Consequently, Nigeria request the Court to admit that there were sufficient evidence from the various interpretations of renowned Jurist/Publicist of international repute of the concept of treaty of protection as represented in the preceding paragraphs which has credence both in International Law and Jurisprudence respectively to which the Court as of the time of its Judgment of October 10, 2002 was unaware;

(d) Accordingly, Nigeria hereby request the Court that in pursuant of the provision of Article 61 of the Statute of the ICJ, which empowers a revisal of any of its Judgment; that the Court should adjudge and declare that its verdict of October 10, 2002 which ceded the Bakassi Peninsula to Cameroun was passed in error.

(e) That the Court should, therefore, declare the revisal of its said earlier judgment of October 10, 2002 by ceding the sovereignty of the disputed Bakassi Peninsula to Nigeria as so requested respectively.

In conclusion, these are my articulated thoughts presented as a Paper to the Nigerian Government to reinforce existing ideas on how Nigeria can seek redress over the unfair and unjust ceding of the Bakassi Peninsula to Cameroun by the International Court of Justice in its Judgments of October 10, 2002. At the same time, respective governmental authorities at home in Nigeria should take urgent measures to provide relative comforts, facilities and shelter to the displaced Nigerians from the disputed Bakassi Island.

It is hopeful that, some of these enumerated policy opinions can equally be found to be useful in realizing our desired national objective of reclaiming our ceded Bakassi Peninsula to Nigeria.