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| II. | Substantive International Law - Second Part |
| 1. | TERRITORY OF STATES |
| 1.1. | Acquisition and Loss |
| 1.1.3. | Effectivités |
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Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002
[p. ] 64. The Court first observes that the work of the LCBC was intended to lead to an overall demarcation of a frontier already delimited. Although the result of the demarcation process is not binding on Nigeria, that fact has no legal implication for the pre-existing frontier delimitation. It necessarily follows that Nigeria’s claim based on the theory of historical consolidation of title and on the acquiescence of Cameroon must be assessed by reference to this initial determination of the Court. During the oral pleadings Cameroon’s assertion that Nigerian effectivités were contra legem was dismissed by Nigeria as “completely question-begging and circular”. The Court notes, however, that now that it has made its findings that the frontier in Lake Chad was delimited long before the work of the LCBC began, it necessarily follows that any Nigerian effectivités are indeed to be evaluated for their legal consequences as acts contra legem.
[pp. ] 68. ... The Court has already ruled on a number of occasions on the legal relationship between “effectivités” and titles. In the Frontier Dispute (Burkina Faso/Republic of Mali), it pointed out that in this regard “a distinction must be drawn among several eventualities”, stating inter alia that:
“Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration.” (I.C.J. Reports 1986, p. 587, para. 63.) (See also Territorial Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, pp. 75-76, para. 38.)
It is this first eventuality here envisaged by the Court, and not the second, which corresponds to the situation obtaining in the present case. Thus Cameroon held the legal title to territory lying to the east of the boundary as fixed by the applicable instruments (see paragraph 53 above). Hence the conduct of Cameroon in that territory has pertinence only for the question of whether it acquiesced in the establishment of a change in treaty title, which cannot be wholly precluded as a possibility in law (Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:Nicaragua intervening), I.C.J. Reports 1992, pp. 408- 409, para. 80). The evidence presented to the Court suggests that before 1987 there was some administrative activity by Cameroon in the island and lake-bed villages that were beginning to be established. There were yearly administrative visits from 1982 to 1985; the villages of Chika’a, Naga’a, Katti Kime and Darak participated in elections for the presidency of the Republic of Cameroon; administrative action was undertaken for the maintenance of law and order in Naga’a, Gorea Changi and Katti Kime. The 1984 census included 18 villages, among them Darak. Appointments of village chiefs were referred for approval to the Cameroon prefect. As for the collection of taxes by Cameroon, there is modest evidence relating to Katti Kime, Naga’a and Chika’a for the years 1983 to 1985.
69. It appears from the case file that the control of certain local Cameroonian officials over the area was limited. As Nigerian settlements, and the organization within them of village life, became supplemented from 1987 onwards by Nigerian administration and the presence of Nigerian troops, Cameroon restricted its protests to a few “incidents” (notably the taking over of the fisheries training station at Katti Kime), rather than to the evolving situation as such. There is some evidence however that Cameroon continued sporadically to seek to exercise some administrative control in these areas, albeit with little success in this later period.
Cameroon has put to the Court that it did not regard the activities of Nigeria in Lake Chad in the years 1984 to 1994 as à titre de souverain, because Nigeria was in those years fully participating in the work entrusted to the LCBC and its contractors, and agreed that they should work on the basis of the various treaty instruments which governed title. The Court cannot accept Nigeria’s argument that the explanation given by Cameroon depends upon the supposition that the Report of Experts was binding upon Nigeria automatically. It depends rather upon the agreed basis upon which the demarcation work was to be carried out.
On 14 April 1994, Nigeria in a diplomatic Note, for the first time claimed sovereignty over Darak. Cameroon firmly protested in a Note Verbale of 21 April 1994, expressing “its profound shock at the presumption that Darak is part of Nigerian territory”, and reiterating its own sovereignty. Shortly after, it also enlarged the scope of its Application to the Court.
70. The Court finds that the above events, taken together, show that there was no acquiescence by Cameroon in the abandonment of its title in the area in favour of Nigeria. Accordingly, the Court concludes that the situation was essentially one where the effectivités adduced by Nigeria did not correspond to the law, and that accordingly “preference should be given to the holder of the title” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 587, para. 63).
The Court therefore concludes that, as regards the settlements situated to the east of the frontier confirmed in the Henderson-Fleuriau Exchange of Notes of 1931, sovereignty has continued to lie with Cameroon (see below, p. 57, sketch-map No. 2).
[pp. ] 221. ... The Court finds that the evidence before it indicates that the small population of Bakassi already present in the early 1960s grew with the influx from Nigeria in 1968 as a result of the civil war in that country. Gradually sizeable centres of population were established. The Parties are in disagreement as to the total number of Nigerian nationals living in the peninsula today, but it is clear that it has grown considerably from the modest numbers reported in the 1953 and 1963 population censuses. Nor is there any reason to doubt the Efik and Effiat toponomy of the settlements, or their relationships with Nigeria. But these facts of themselves do not establish Nigerian title over Bakassi territory; nor can they serve as an element in a claim for historical consolidation of title, for reasons already given by the Court (see paragraphs 64-70).
222. Nigeria has relied before the Court, in considerable detail, often with supporting evidence, on many activities in Bakassi that it regards as proof both of settled Nigerian administration and of acts in exercise of sovereign authority. Among these acts are the establishment of schools, the provision of health facilities for many of the settlements and some tax collection.
It is true that the provision of education in the Bakassi settlements appears to be largely Nigerian. Religious schools were established in 1960 at Archibong, in 1968 at Atabong and in Abana in 1969. These were not supported by public funds, but were under the authority of the Nigerian examination and education authorities. Community schools were also established at Atabong East in 1968, Mbenonong in 1975 and Nwanyo in 1981. The schools established in Abana in 1992, and in Archibong and Atabong in 1993, were Nigerian government schools or State secondary schools.
There is evidence that since 1959 health centres have been established with the assistance of local communities receiving supplies, guidance and training for personnel in Nigeria. The ten centres include centres established at Archibong in 1959, Mbenonong in 1960, Atabong West in 1968, Abana in 1991 and Atabong East in 1992.
There was also some collection of tax, certainly from Akwa, Archibong, Moen Mong, Naranyo, Atabong and Abana.
Nigeria notes that Cameroon failed actively to protest these administrative activities of Nigeria before 1994 (save, notably, the building by Nigeria of a primary school in Abana in 1969). It also contends that the case law of this Court, and of certain arbitral awards, makes clear that such acts are indeed acts à titre de souverain, and as such relevant to the question of territorial title (Minquiers and Ecrehos, Judgment, I.C.J. Reports 1953; Western Sahara, Advisory Opinion, I.C.J. Reports 1975; Rann of Kutch, Arbitral Award, 50 ILR 1; Beagle Channel Arbitration, 52 ILR 93).
223. The Court observes, however, that in none of these cases were the acts referred to acts contra legem; those precedents are therefore not relevant. The legal question of whether effectivités suggest that title lies with one country rather than another is not the same legal question as whether such effectivités can serve to displace an established treaty title. As the Chamber of the Court made clear in the Frontier Dispute (Burkina Faso/Republic of Mali), where there is a conflict between title and effectivités, preference will be given to the former (I.C.J. Reports 1986, Judgment, pp. 586-587, para. 63).
In the view of the Court the more relevant legal question in this case is whether the conduct of Cameroon, as the title holder, can be viewed as an acquiescence in the loss of the treaty title that it inherited upon independence. There is some evidence that Cameroon attempted, inter alia, to collect tax from Nigerian residents, in the year 1981-1982, in Idaboto I and II, Jabare I and II, Kombo Abedimo, Naumsi Wan and Forisane (West and East Atabong, Abana and Ine Ikoi). But it engaged in only occasional direct acts of administration in Bakassi, having limited material resources to devote to this distant area.
However, its title was already established. Moreover, as the Court has shown above (see paragraph 213), in 1961-1962 Nigeria clearly and publicly recognized Cameroon title to Bakassi. That continued to be the position until at least 1975, when Nigeria signed the Maroua Declaration. No Nigerian effectivités in Bakassi before that time can be said to have legal significance for demonstrating a Nigerian title; this may in part explain the absence of Cameroon protests regarding health, education and tax activity in Nigeria. The Court also notes that Cameroon had since its independence engaged in activities which made clear that it in no way was abandoning its title to Bakassi. Cameroon and Nigeria participated from 1971 to 1975 in the negotiations leading to the Yaoundé, Kano and Maroua Declarations, with the maritime line clearly being predicated upon Cameroon’s title to Bakassi. Cameroon also granted hydrocarbon licences over the peninsula and its waters, again evidencing that it had not abandoned title in the face of the significant Nigerian presence in Bakassi or any Nigerian effectivités contra legem. And protest was immediately made regarding Nigerian military action in 1994.
224. The Court considers that the foregoing shows that Nigeria could not have been acting à titre de souverain before the late 1970s, as it did not consider itself to have title over Bakassi; and in the ensuing period the evidence does not indicate an acquiescence by Cameroon in the abandonment of its title in favour of Nigeria.
[p. D.O. Ajibola] 52. The role of effectivité which deals majorly with the conduct and practice of the parties and has its legal basis founded on some of the provisions of the Vienna Convention on the Law of Treaties of 1969, particularly its paragraph 31, has as its advantage, the need to ensure stability along the boundaries of two States. Short of invalidating a legal title that bears no relation to the situation on the ground, effectivité comes in to play the role of sustaining complementarily the boundary based on the practice and conduct of the parties over the years which, in effect, is similar to the principle of uti possidetis juris (de facto). Consequently, effectivité comes in to adjust, vary or amend such boundary as may be structurally established by the legal title.
[p. D.O. Ajibola] 64. In its Judgment, particularly in paragraph 325 III (A), (B) and (C), the Court fails to take into consideration the situation on the ground in the Bakassi Peninsula, despite the fact that no one is left in doubt that at the moment this territory, and indeed since independence, is occupied and firmly in possession of Nigeria and inhabited by Nigerian people; hence my reason for voting against the decision of the Court. This is an artificial decision that fails blatantly to take into consideration, contrary to all the accepted principles of international law and practice, that effectivités must invariably be given consideration in a matter of this nature. Furthermore, the Court fails to take into account the submission of Nigeria based on historical consolidation, which the Court now refers to as mere theory. It is my strong view that, if the principle of historical consolidation is a theory, it is one that the Court, over the years in its judgments (as will be shown later), has given its approval and support. The decision of the Court, in my view, is rather a political decision than a legal one.
