|I.||Substantive International Law - First Part|
|7.||LAW OF TREATIES|
Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002
[p. ] 196. Nigeria further contends that, under contemporary German domestic legislation, all treaties providing for cession or acquisition of colonial territory by Germany had to be approved by Parliament. It points out that the Anglo-German Agreement of 11 March 1913 was not so approved. It argues that the Agreement involved the acquisition of colonial territory, namely the Bakassi Peninsula, and accordingly ought to have been approved by the German Parliament, at least so far as its Bakassi provisions were concerned.
Cameroons position was that the German Government took the view that in the case of Bakassi the issue was one of simple boundary rectification, because Bakassi had already been treated previously as belonging de facto to Germany; and thus parliamentary approval was not required.
197. The Court notes that Germany itself considered that the procedures prescribed by its domestic law had been complied with; nor did Great Britain ever raise any question in relation thereto. The Agreement had, moreover, been officially published in both countries. It is therefore irrelevant that the Anglo-German Agreement of 11 March 1913 was not approved by the German Parliament. Nigerias argument on this point accordingly cannot be upheld.
[p. ] 264. The Court cannot accept the argument that the Maroua Declaration was invalid under international law because it was signed by the Nigerian Head of State of the time but never ratified. Thus while in international practice a two-step procedure consisting of signature and ratification is frequently provided for in provisions regarding entry into force of a treaty, there are also cases where a treaty enters into force immediately upon signature. Both customary international law and the Vienna Convention on the Law of Treaties leave it completely up to States which procedure they want to follow. Under the Maroua Declaration, the two Heads of State of Cameroon and Nigeria agreed to extend the delineation of the maritime boundary between the two countries from Point 12 to Point G on the Admiralty Chart No. 3433 annexed to this Declaration. In the Courts view, that Declaration entered into force immediately upon its signature.
[pp. ] 265. The Court will now address Nigerias argument that its constitutional rules regarding the conclusion of treaties were not complied with. In this regard the Court recalls that Article 46, paragraph 1, of the Vienna Convention provides that [a] State may not invoke the fact that 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. It is true that the paragraph goes on to say unless that violation was manifest and concerned a rule of its internal law of fundamental importance, while paragraph 2 of Article 46 provides that [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. The rules concerning the authority to sign treaties for a State are constitutional rules of fundamental importance. However, a limitation of a Head of States capacity in this respect is not manifest in the sense of Article 46, paragraph 2, unless at least properly publicized. This is particularly so because Heads of State belong to the group of persons who, in accordance with Article 7, paragraph 2, of the Convention [i]n virtue of their functions and without having to produce full powers are considered as representing their State.
The Court cannot accept Nigerias argument that Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties is solely concerned with the way in which a persons function as a States representative is established, but does not deal with the extent of that persons powers when exercising that representative function. The Court notes that the commentary of the International Law Commission on Article 7, paragraph 2, expressly states that Heads of State . . . are considered as representing their State for the purpose of performing all acts relating to the conclusion of a treaty (ILC Commentary, Art. 6 (of what was then the draft Convention), para. 4, Yearbook of the International Law Commission, 1966, Vol. II, p. 193).
266. Nigeria further argues that Cameroon knew, or ought to have known, that the Head of State of Nigeria had no power legally to bind Nigeria without consulting the Nigerian Government. In this regard the Court notes that there is no general legal obligation for States to keep themselves informed of legislative and constitutional developments in other States which are or may become important for the international relations of these States.
In this case the Head of State of Nigeria had in August 1974 stated in his letter to the Head of State of Cameroon that the views of the Joint Commission must be subject to the agreement of the two Governments. However, in the following paragraph of that same letter, he further indicated: It has always been my belief that we can, both, together re-examine the situation and reach an appropriate and acceptable decision on the matter. Contrary to Nigerias contention, the Court considers that these two statements, read together, cannot be regarded as a specific warning to Cameroon that the Nigerian Government would not be bound by any commitment entered into by the Head of State. And in particular they could not be understood as relating to any commitment to be made at Maroua nine months later. The letter in question in fact concerned a meeting to be held at Kano, Nigeria, from 30 August to 1 September 1974. This letter seems to have been part of a pattern which marked the Parties boundary negotiations between 1970 and 1975, in which the two Heads of State took the initiative of resolving difficulties in those negotiations through person-to-person agreements, including those at Yaoundé II and Maroua.
267. The Court further observes that in July 1975 the two Parties inserted a correction in the Maroua Declaration, that in so acting they treated the Declaration as valid and applicable, and that Nigeria does not claim to have contested its validity or applicability prior to 1977.
268. In these circumstances the Maroua Declaration, as well as the Yaoundé II Declaration,
have to be considered as binding and as establishing a legal obligation on Nigeria.
[pp. Decl. Rezek] Further, I am unable to regard the Maroua Declaration of 1 June 1975 as a
treaty, and therefore to draw the resultant inferences. I even have some
difficulty in viewing it as a treaty which was signed but never entered into
force, failing ratification by the two parties. Rather, I see it as a
declaration by the two Heads of States, further to other similar declarations
that were never followed up, thus demonstrating that they were not definitive
sources of law. True, formal adoption of the document by the organs vested with
treaty-making power would have given rise to a conventional instrument. That is
to say that, no matter what the title or form of a text, no matter what
procedure was followed in negotiating it, that text can obviously become a
treaty if the parties' competent organs ultimately express their consent. Here,
the Respondent has stated, without being challenged, that the Maroua Declaration
was not ratified by Nigeria, failing approval by the competent organ under the
constitution in force at the time.
The Vienna Convention provides a remarkably simple definition of the unusual circumstances under which a State can deny the legal force of a treaty by reason of flawed consent of this sort. The international rule which was not respected must be a fundamental one and its violation must have been manifest, i.e., the other party could not under normal circumstances have been unaware of the violation. It is my view, however, that Cameroon was not entitled to believe that the Declaration in question was indeed a perfected treaty, entering into force on the date of its signing. I know of no legal order which authorizes a representative of a Government alone definitively to conclude and put into effect, on the basis of his sole authority, a treaty concerning a boundary, whether on land or at sea and ergo the territory of the State. I ask myself whether there is any part of the world where such a failure to respect the most basic formalities would be compatible with the complex and primordial nature of an international boundary treaty.
It is to be expected that the case concerning the Legal Status of Eastern Greenland (P.C.I.J., Series A/B, No. 53, p. 22) would be referred to in a discussion of this sort. It is sometimes forgotten that the Court never said that one of the ways in which treaties could be concluded was by oral agreement. The court did not state that the Ihlen Declaration was a treaty. It said that Norway was bound by the guarantees given by the Norwegian Minister to the Danish ambassador. Thus, there are other, less formal ways by which a State can create international obligations for itself. That is not the issue. The question is whether an international agreement concerning the determination of a boundary can take a form other than that of a treaty in the strict sense, even when the land or maritime areas concerned are not large or when the boundary has not been the subject of long-standing dispute and uncertainty.
[p. D.O. Ajibola] 167. The Supreme Military Council was the ultimate executive body vested with the power to ratify any agreement made by the Head of State. The Maroua Declaration was not ratified by this Council. Hence the Declaration had no binding force on Nigeria, contrary to the decision of the Court.
168. Thus, by virtue of Article 46 of the Vienna Convention on the Law of Treaties, internationally, the Maroua Declaration is not opposable and therefore not enforceable against Nigeria.
[pp. S.O. Al-Khasawneh] 2. The Court chose, quite unnecessarily, to revert to the question of the validity of the 1913 Agreement between Great Britain and Germany under which the former ceded the entire territory of the Kings and Chiefs of Old Calabar which territory corresponds to the Bakassi Peninsula to Germany without the consent of those Kings and Chiefs, notwithstanding that Great Britain had entered earlier into a Treaty of Protection with them in 1884 under which, in return for their agreeing and promising to refrain from entering into any correspondence, Agreement or Treaty, with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majestys Government, Her Majesty would extend Her favour and protection to them. It must be noted here that the 1884 Treaty was concluded by the British Consul expressly as the representative of Queen Victoria.
3. Reversion to those treaties was not
only unnecessary as I stated earlier, it was also unfortunate,
for the attempt at reconciling a duty of protection
on the one hand with, on the other, the subsequent
alienation of the entire territory of the protected
entity regardless of whether that entity possessed
international legal personality or not cannot be
an easy matter, not only due to the moral difficulties
that such an attempt would entail, but also, as a matter
of law, because the distinction between colonies, protectorates
and the so-called colonial protectorates is steeped
in confusion both under international law and under
the laws of the colonial Powers themselves, the confusion
arising mainly from the fact that it was considerations
of pragmatism and political convenience that determined
the status of those territories, though problems of
nomenclature are also a contributory factor. Needless
to say, such confusion engenders doubt as to whether
the colonial/protecting Power possessed or even claimed
In addition, if the Judgment is to constitute a legally and morally defensible scheme, it cannot merely content itself with a formalistic appraisal of the issues involved. Such issues include the true scope of intertemporal law and the extent to which it should be judged by contemporary values that the Court ought to foster; an ascertainment of State practice at the relevant time and the role of the Berlin Conference on West Africa of 1885; the question, whether that practice assuming it permitted the acquisition of title in the so-called colonial protectorates could be invoked in an African case when no African State had participated in the formation of such alleged practice; the relevance of the fundamental rule pacta sunt servanda on the passing of title and the normative value to be attached to the consistent practice of the colonial Power in question (Great Britain) of distinguishing between colonies on the one hand and protectorates on the other. Only when a serious attempt has been made to analyse this host of relevant and interrelated considerations can it be said that the question repeatedly and forcefully posed by Sir Arthur Watts as counsel for Nigeria ¾ Who gave Great Britain the right to give away Bakassi? And when? And how? would be answered. To my mind, the Judgment, by taking for granted such premises as the existence of a category of protectorates indistinguishable from colonies, or the right of colonial Powers to deal with African potentates on the basis that the fundamental rule pacta sunt servanda does not exist, has failed to answer that question. To the extent that these are central issues in this case and have implications that go beyond it, I feel I must append my thoughts on them in a separate opinion.
4. It is evident that the Bakassi Peninsula was not a terra nullius when Great Britain entered into a Treaty of Protection with the Kings and Chiefs of Old Calabar in 1884. As Judge Dillard cogently summarized the matter in his separate opinion in the Western Sahara case: [a]s was cryptically put in the proceedings: you do not protect a terra nullius. On this point there is little disagreement. (Advisory Opinion, I.C.J. Reports 1975, p. 124.) Yet it was also in that Advisory Opinion that the Court implied, at least prima facie that, even if the territory in question was not a terra nullius, this would not in itself preclude the colonial Power from acquiring a derivative root of title, as opposed to an original title, which could be obtained only by occupation (presumably effective occupation of terrae nullius) (ibid., p. 39, para. 80). In the present case, the Judgment has relied mainly on that passage (paragraph 205) in support of the contention that, the absence of a terra nullius status notwithstanding, Great Britain had in fact acquired sovereignty to the Bakassi Peninsula through a derivative root of title. Prima facie, Western Sahara may seem to lend support to such a proposition. Though it should not be forgotten that the passage cited was an obiter dictum. Secundo facie, however, the support lent seems negligible indeed, for in that instance the Court was not enquiring whether Spain held valid legal title but was answering a distinct, specific question: Was Western Sahara (Río de Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)? Indeed in paragraph 82 of that Opinion the Court expressly declined to pronounce upon the legal character or the legality of the titles which led to Spain becoming the administering Power of Western Sahara (I.C.J. Reports 1975, p. 40, para. 82), even though there was much material before it on this precise question as well as requests to answer it. Moreover, when the Court said that in the case of such territories (territories that are not terrae nullius) the acquisition of sovereignty was not generally considered as effected unilaterally through occupation of terra nullius by original title but through agreements concluded with local rulers (ibid., p. 39, para. 80), it was referring in general to agreements that had the effect of passing title from those rulers who possessed it on the basis of original title to the new administering/protecting Powers, who through such agreements acquired derivative title. Clearly the crucial factor is the agreement itself, and whilst it is entirely possible that such agreements vested sovereignty in the newcomers it is equally possible that they did not, in which case sovereignty was retained by the local ruler under an agreed scheme of protection or administration. These are questions of treaty interpretation and of the subsequent practice of the parties and cannot be circumvented by the invention of a fictitious sub-category of protectorates termed colonial protectorates where title is assumed to pass automatically and regardless of the terms of the treaty of protection to the protecting Power, for that would be incompatible with the fundamental rule pacta sunt servanda and would lead to what has been termed institutionalized treaty breach, a situation that no rule of intertemporal law has ever excused. It would also blur the distinction that the Court was trying to make between title automatically assumed on the basis of effective occupation on the one hand, and title assumed on the basis of agreement with local rulers on the other.
[pp. S.O. Al-Khasawneh] 11. Let me start by recalling that the concept of the intertemporal law is an irretrievably elusive one. At first sight it looks simple. To quote Max Huber once more: A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when such a dispute in regard to it arises or falls to be settled. (RIAA, Vol. II, p. 845.)
12. At a general level, the proposition is sustainable, but when we come to enquire more closely into its operation, problems start to arise: is appreciation in the light of the law contemporary with the judicial act, e.g., a treaty of protection, the same as interpretation of such a treaty in the light of contemporaneous law? Or does it merely mean that in interpreting a treaty of the past one should be mindful, in applying the time-honoured and established canons of treaty interpretation, of the temporal context that may shed light on the presumed intention of the parties and thus help ascertain it? Should such a legal act (a treaty) be interpreted against the background that the object and purpose of the treaty was the guaranteeing or upholding of a certain principle, e.g., that the mandate system is a sacred trust of civilization (Legal Consequences for States of the Continued Presence South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 16)? Similarly, in interpreting a treaty of protection should not the law contemporary with the legal act be read against the background of the concept of protection which, like the concept of the mandate, connotes an element of guardianship1 traceable to the great Roman jurist Ulpian who said: for certain purposes of the law some cities and municipalities are to be treated as minors. A concept that therefore excludes notions of ownership. It should not be forgotten that, in appreciating the law contemporary with the 1884 Treaty, we should be mindful that the ancient concept of protection antedates the Berlin Conference; thus, to cite a few examples, Great Britain had established a protectorate over the Ionian Islands in 1814 which was maintained in accordance with the classical concept of protection which excluded any notion of sovereignty of the protecting Power, and much earlier during the Muslim Conquests many agreements of protection were concluded with local rulers in certain parts of Europe and elsewhere2. After 1885, State practice, to use the words of one commentator revealed a tendency to deform the original classic concept of the protectorate and to convert it into an instrument of colonialism (Alexandrowicz, The Role of Treaties in the European-African Confrontation in the Nineteenth Century, African International Legal History, p. 55, cited by Malcolm Shaw in Title to Territory in Africa, p. 47; emphasis added). Would then the operation of intertemporal law not require us as judges to appraise not just the practice but the fact that it was a deformation of the concept and practice of protection against the background that the object of the protectorate system ¾ like the mandatory system ¾ is a form of guardianship that by definition excludes notions of territorial ownership or territorial dominion? To my mind this is the relevant law that should be appreciated as a consequence of the rule of intertemporal law and it cannot be reduced to a mere review of a deformation, half-Kafkaesque, half-Orwellian, where friendship means interference in the internal affairs and protection means loss of sovereignty and dismemberment and the conclusion of treaties means instantaneous breach. Put differently, ascertainment of the true meaning of intertemporal law requires us to enquire into the quality of the juridical act in the light not only of the alleged practice, but in the light of the totality of the law relating to protection i.e., with reference to its object and taking into account other rules relevant at the time.
|1||Oppenheims International Law, Sir Robert Jennings and Sir Arthur Watts (eds.), 9th ed., Vol. I, p. 267.|
|2||For example, The Treaty of Tudmir of Rajab 94 AH-April 731 AD, concluded between Abdulaziz Son of Musa Son of Nusair the Ummayyad Governor of Spain and Theodemir, representative of local fortress-chiefs in South East Spain, an area encompassing the modern region of Murcia, Alicante and Valencia, the pact itself transformed political power from the Hispanic Visigoths to the Ummayyads of Damascus, but rights in property and other rights were retained by those chiefs and their descendants. For the text of the treaty see Negotiating Cultures, Bilingual Surrender Treaties in Moslem Crusader Spain Under James the Conqueror, edited by Robin Burns and Paul Cliveddan, p. 202. Many similar treaties of protection were entered into by the Ottomans with various principalities in Eastern Europe where dominion in the sense of power passed to the Ottomans but ownership rights and other rights were retained by the indigenous European chiefs.|