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II. Substantive International Law - Second Part

¤ Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002

[pp. ] 204. Nigeria has contended that the very title of the 1884 Treaty and the reference in Article I to the undertaking of “protection”, shows that Britain had no entitlement to do more than protect, and in particular had no entitlement to cede the territory concerned to third States: “nemo dat quod non habet”.

205. The Court calls attention to the fact that the international legal status of a “Treaty of Protection” entered into under the law obtaining at the time cannot be deduced from its title alone.

Some treaties of protection were entered into with entities which retained thereunder a previously existing sovereignty under international law. This was the case whether the protected party was henceforth termed “protectorat” (as in the case of Morocco, Tunisia and Madagascar (1885; 1895) in their treaty relations with France) or “a protected State” (as in the case of Bahrain and Qatar in their treaty relations with Great Britain). In sub-Saharan Africa, however, treaties termed “treaties of protection” were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory.

In relation to a treaty of this kind in another part of the world, Max Huber, sitting as sole arbitrator in the Island of Palmas case, explained that such a treaty “is not an agreement between equals; it is rather a form of internal organisation of a colonial territory, on the basis of autonomy of the natives ... And thus suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations.” (RIIA, Vol. II, pp. 858-859.)

The Court points out that these concepts also found expression in the Western Sahara Advisory Opinion. There the Court stated that in territories that were not terra nullius, but were inhabited by tribes or people having a social and political organization, “agreements concluded with local rulers ... were regarded as derivative roots of title” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 39, para. 80). Even if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today, in the present dispute.

206. The choice of a protectorate treaty by Great Britain was a question of the preferred manner of rule. Elsewhere, and specifically in the Lagos region, treaties for cession of land were being entered into with local rulers. It was precisely a reflection of those differences that within Nigeria there was the Colony of Lagos and the Niger Coast Protectorate, later to become the Protectorate of Southern Nigeria.

207. In the view of the Court many factors point to the 1884 Treaty signed with the Kings and Chiefs of Old Calabar as not establishing an international protectorate. It was one of a multitude in a region where the local Rulers were not regarded as States. Indeed, apart from the parallel declarations of various lesser Chiefs agreeing to be bound by the 1884 Treaty, there is not even convincing evidence of a central federal power. There appears in Old Calabar rather to have been individual townships, headed by Chiefs, who regarded themselves as owing a general allegiance to more important Kings and Chiefs. Further, from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them.

Consul Johnston reported in 1888 that “the country between the boundary of Lagos and the German boundary of Cameroons” was “administered by Her Majesty’s Consular Officers, under various Orders in Council”. The fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality. It simply confirms the British administration by indirect rule.

Nigeria itself has been unable to point to any role, in matters relevant to the present case, played by the Kings and Chiefs of Old Calabar after the conclusion of the 1884 Treaty. In responding to a question of a Member of the Court Nigeria stated “It is not possible to say with clarity and certainty what happened to the international legal personality of the Kings and Chiefs of Old Calabar after 1885.”

The Court notes that a characteristic of an international protectorate is that of ongoing meetings and discussions between the protecting Power and the Rulers of the Protectorate. In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) the Court was presented with substantial documentation of this character, in large part being old British State papers. In the present case the Court was informed that “Nigeria can neither say that no such meetings ever took place, or that they did take place ... the records which would enable the question to be answered probably no longer exist ...”

208. As to when the Kings and Chiefs ceased to exist as a separate entity, Nigeria told the Court it “is not a question susceptible of a clear-cut answer”. The Court notes in this regard that in 1885 Great Britain had established by proclamation a “British Protectorate of the Niger Districts” (which subsequently changed names a number of times), incorporating in a single entity the various territories covered by the treaties of protection entered into in the region since July 1884. The Court further notes that there is no reference to Old Calabar in any of the various British Orders in Council, of whatever date, which list protectorates and protected States. The same is true of the British Protected Persons Order of 1934, the Schedule which refers to “Nigerian Protectorate and Cameroons under British Mandate”. Nor is there any reference to Old Calabar in the Second Schedule to the British Protectorates, Protected States and Protected Persons Order in Council, 1949, though in the First Schedule there is a reference to the “Nigerian Protectorate”.

Moreover, the Court has been presented with no evidence of any protest in 1913 by the Kings and Chiefs of Old Calabar; nor of any action by them to pass territory to Nigeria as it emerged to independence in 1960.

209. The Court thus concludes that, under the law at the time, Great Britain was in a position in 1913 to determine its boundaries with Germany in respect of Nigeria, including in the southern section.

[pp. ] 212. The Court notes that after the First World War Germany renounced its colonial possessions. Under the Versailles Treaty the German possessions of Cameroon were divided between Great Britain and France. In 1922 Great Britain accepted the mandate of the League of Nations for “that part [of the former German colony] of the Cameroons which lay to the west of the line laid down in the [Milner-Simon] Declaration signed on the 10th July, 1919”. Bakassi was necessarily comprised within the mandate. Great Britain had no powers unilaterally to alter the boundary nor did it make any request to the League of Nations for any such alteration. The League Council was notified, and did not object to, the British suggestion that it administer Southern Cameroon together with the eastern region of the Protectorate of Nigeria. Thus the British Order in Council of 26 June 1923 providing for the Administration of the Mandated Territory of the British Cameroons stipulated that British Cameroons lying southwards of the line described in the Schedule would be administered “as if it formed part of” the southern provinces of the Protectorate of Nigeria. The Court observes that the terminology used in the Order in Council preserved the distinctive status of the mandated territory, while allowing the convenience of a common administration. The Nigerian thesis must therefore be rejected.

When, after the Second World War and the establishment of the United Nations, the mandate was converted to a trusteeship, the territorial situation remained exactly the same. The “as if” provision continued in place, and again the Administering Authority had no authority unilaterally to alter the boundaries of the trusteeship territory. Thus for the entire period from 1922 until 1961 (when the Trusteeship was terminated), Bakassi was comprised within British Cameroon. The boundary between Bakassi and Nigeria, notwithstanding the administrative arrangements, remained an international boundary.

The Court is unable to accept Nigeria’s contention that until its independence in 1961, and notwithstanding the Anglo-German Agreement of 11 March 1913, the Bakassi Peninsula had remained under the sovereignty of the Kings and Chiefs of Old Calabar. Neither the League of Nations nor the United Nations considered that to be the position.

[pp. S.O. Ranjeva]2. My purpose in this opinion is to consider the interpretation which in my view should be given to the notion of "the law at the time" (Judgment, para. 209). To understand the scope of this notion, reference should be made to the Arbitral Award of the President of the French Republic between Great Britain and Portugal concerning Delagoa Bay of 24 July 1875 (H. La Fontaiane, Pasicrisie internationale 1794-1900: histoire documentaire des arbitrages internationaux), to the text of Article 38 of the Statute of the Court and to the silence of the Judgment regarding the characterization of the treaties concluded by the Chiefs of Old Calabar with the representative of Old Calabar. The criterion of "civilized nation" represented the qualifying condition in order to be accorded the juridical status of international subject. Without formal recognition of sovereignty on the part of the civilized nations, traditional indigenous societies, African societies in particular, did not have the status of subjects of international law, even where their territory was not necessarily res nullius, as was made clear in the Advisory Opinion on the Western Sahara case (I.C.J. Reports 1976, p. 12). But does the refusal to accord any international status to such treaties justify reliance on the simple generic concept of "the law at the time" when characterizing in strictly legal terms territorial situations obtaining during the colonial period? The problem is whether, in this case, the rules of intertemporal law are sufficient to explain and justify the disappearance from the international scene of this ancient entity, the Chiefs of Old Calabar.

3. Literal application of the principles of intertemporal law leads to a surprising conclusion, which could be expressed in the following maxim: "in treaty relations with indigenous chiefs, pacta non servanda sunt". Thus it is difficult, without recourse to legal artifice, to justify the idea that a protected entity could consent to being dispossessed of its legal personality or of its territory. In a civil contract, any unilateral dissolution of an entity recognized under the terms of the contract is regarded as a breach of the contractual obligations and sanctions must follow. Can the absence of the conditions required for a valid international treaty render such surprising consequences acceptable? The inequality and denial of rights inherent in colonial practice in relation to indigenous peoples and to colonies is currently recognized as an elementary truth; there is a resultant duty to memorialize these injustices and at the same time to acknowledge as historical fact. The destruction of international personality is procured by an act of force: through debellatio or under an agreement between equals. But to contend that an international personality has disappeared by consent is verging on fraud. Application of the rules of intertemporal law cannot justify conclusions so contrary to fundamental norms, not even on the basis of the special nature of relationships with indigenous chiefs.

The International Court of Justice should be reluctant to accept that, in the name of intertemporal law, the maxim pacta sunt servanda may be circumvented. The Court's decision must not be interpreted as encouraging any impugnment of the principle of the sanctity of contracts. If we analyse the relationship between the various norms and principles of international law, it is clear that the maxim pacta servanda sunt cannot be treated on the same basis as the rules of intertemporal law, which serve merely as auxiliary means of interpretation of the primary rule, pacta servanda sunt. Any interpretation seeking to impugn that fundamental rule is misconceived. The main purpose of the rules of intertemporal law is to strengthen legal security in international relations. The binding nature of international treaties derives not from the mechanical or formal application of a principle but from the nature of commitments freely undertaken, expressing the consent of States to be bound. Only the impact of norms of jus cogens can justify any impugnment of the consensus principle. Thus the legal framework provides a tool for analysing the consent and intentions of States but cannot replace those intentions.

4. In the present case, application of the rules of intertemporal law raises the problem of the Judgment's acceptance of the conduct of the protecting Power, which proceeded to liquidate the entity of Old Calabar. A distinction must be drawn between justification and acceptance of a legal situation. Thus the situations which the law addresses may have originated either in a legal instrument, that is to say a manifestation of wills intended to produce legal effects, or in a legal fact, that is to say an occurrence, a situation having taken place irrespective of any consent by the States concerned and producing effects in law. It follows that the instruments adopted by the colonial Power constituted legal facts, around which evolved and developed regimes governing territorial rights, as well as the personal rights of the populations concerned. This analysis is confirmed by the decision in the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 554). The Chamber directly applied French colonial law not qua colonial law but as the normative reference source applicable, without passing any judgment thereon or seeking to legitimize colonial law by reliance on the rules of intertemporal law.

5. Criticism of the "unilateralism" of the colonial Powers in ultimately treating agreements concluded with indigenous rules as "scraps of paper" is nothing new. I would cite here the thesis of Mr. Nazif, submitted to the University of Batavia in 1928, on the disappearance of the Kingdom of Madagascar in international law (De val van het Rijk Merina – La chute du Royaume de Mérina). I would also recall the position taken by the Malagasy plenipotentiaries in 1895 when they confronted France with the argument that the independence of the Kingdom was an issue distinct from its ability to repay its loan, the official pretext for the despatch of the expeditionary force. Conversely, the tabula rasa principle has been invoked in order to refuse a right of State succession to treaties concluded by the monarchy. This precedent was recalled at the time of the annexation of Czechoslovakia by the Third Reich.

6. For these reasons, it would have been preferable to speak of international law when referring to the law governing relations between the European Powers or with sovereigns recognized by the European Powers, and of colonial law or acts, as appropriate, when addressing the relationship between the European Powers and indigenous chiefs. Such a distinction or classification permits a better understanding of the legal framework of colonization.

[pp. Decl. Rezek] It is rare to find in classic international law propositions as flimsy – and as inadmissibly so in moral terms – as those which would have it that agreements entered into the past between colonial Powers and indigenous communities – organized communities which had been masters of their territories for centuries and were subject to a recognized authority – are not treaties, because "native chiefs and tribes are neither States nor International Organizations; and thus possess no treaty-making capacity" (The Law of Treaties, 1961, p. 53.). While expressing in these terms the doctrine prevailing in Europe in his time, Arnold McNair nevertheless pointed out that the matter had been understood differently in the United States, where the indigenous communities were recognized as foreign nations until promulgation of the Indian Appropriations Act of 3 March 1871, which made them wards of, and integrated them into, the Union. The agreements which these communities had entered into with the Federal Government were regarded as treaties, to be honoured as such; moreover, if they required interpretation, the Supreme Court applied the rule contra proferentem.
In the Western Sahara case, the Court appears to have rejected the notion that a European Power could unilaterally appropriate a territory inhabited by indigenous communities. It found that even nomadic tribes inhabiting a territory and having a social and political organization had a personality sufficient under international law for their territory not to be considered terra nullius. According to that jurisprudence, title of sovereignty over a territory thus inhabited cannot therefore be acquired by occupation but only "through agreements concluded with local rulers" (I.C.J. Reports 1975, p. 39, para. 80).
In the present case, the Bakassi Peninsula was part of the territory of Old Calabar, subject to the original rule of its Kings and Chiefs. The Applicant itself, paradoxically required by the circumstances to espouse some particularly unacceptable propositions of colonialist discourse, has sought to cast doubt on the existence and independence of that rule by recourse to considerations which, rather, confirm them. Moreover, only the 1884 Treaty, concluded with that form of local rule, could have justified the functions assumed by Great Britain when it became the protecting State of those territories, for, if the Kings and chiefs of Old Calabar did not have capacity to enter into an international agreement, if the 1884 Treaty was not a treaty and had no legal force whatsoever, it must be asked what was the basis for Great Britain to assert its authority over these territories, by what mysterious divine right did it set itself up as the protecting State of these areas of Africa.

Pursuant to the 1884 Treaty, Great Britain bestowed upon itself the power to oversee the African nation's foreign relations, without granting itself authority to negotiate in its name, let alone to settle or relinquish any claim of whatever nature during international negotiations, and in particular to dispose of any part of the nation's territory. The unlawfulness of the act of cession renders the Anglo-German Treaty of 11 March 1913 invalid in so far as, in defining the last sector of the land boundary, it determines the treatment of Bakassi.
The defect in the provisions concerning the Bakassi Peninsula does not however affect the validity of the remainder of the Treaty. This is the situation provided for in Article 44 (3) (a) of the Vienna Convention on the Law of Treaties, which could in theory be overridden by the effect of the next subparagraph, were it possible to show that the cession of Bakassi was an essential condition of Germany's consent to the rest of the Treaty; but, as far as I recall, no one so argued.

[p. D.O. Ajibola] 85. On 11 March 1913, Great Britain concluded an agreement with Germany apparently recognizing Germany’s sovereignty over the Bakassi Peninsula. In my view, Great Britain had no authority to conclude such an agreement with either Germany or any other State after it had entered into a binding international treaty about 29 years before then, with the Kings and Chiefs of Old Calabar. As a matter of fact and law Great Britain was under an obligation not to enter into such an agreement with Germany; and such an act was a breach of agreement to which Great Britain was actionably liable in international law.

[p. D.O. Ajibola] 119. The legal force and legal significance of the Treaty of 10 September 1884 is therefore as follows:

(a) The Treaty was valid and binding between Great Britain and the Kings and Chiefs of Old Calabar ¾ pacta sunt servanda;
(b) The territorial extent of the land of the Kings and Chiefs of Old Calabar as City States of Old Calabar was well known and clearly defined by descriptions and map illustrations attached to the Nigerian Counter-Memorial and Rejoinder;
(c) Having signed this Agreement with the Kings and Chiefs of Old Calabar, Great Britain was under obligation to protect Old Calabar territories and did not acquire sovereignty over the territories of the Kings and Chiefs of Old Calabar;
(d) For Great Britain to enter into an agreement in 1913 with Germany amounted to a serious breach of its international obligation against the territorial rights of the Kings and Chiefs of Old Calabar;
(e) Great Britain could not give away what did not belong to it. The Island of Palmas case is an illustrative example. Just as the United States had no sovereignty over the Island of Palmas, ceded to it by Spain, so it is that Germany could not claim any conventional title over the Bakassi Peninsula. Max Huber, in the Arbitration Award states: “It is evident that Spain could not transfer more rights than she herself possessed.” (United Nations, Reports of International Arbitral Awards (RIAA), Vol. II, p. 842.) Huber further adds that: “It is evident that whatever may be the right construction of a treaty, it cannot be interpreted as disposing of the rights of independent third Powers.” (Ibid.)
(f) As already indicated, there is no doubt that the Kings and Chiefs of Old Calabar have legal personality in international law.

120. The Western Sahara Advisory Opinion of 1975 is a glaring example on this issue. The international personality was clearly demonstrated over the territories of the Kings and Chiefs of Old Calabar when they rejected certain provisions in the draft Treaty of 1884, particularly Article VI which guarantees free trade in every part of their territory. Thus, the 1913 Agreement did not deprive the Kings and Chiefs of Old Calabar of sovereignty over their territory and the right to this sovereignty continued till the time of Nigeria’s independence in 1960. It is highly undesirable to create any distinction between the situation in the Western Sahara case (I.C.J. Reports 1975) and the present case, simply because one is in north Africa and the other in sub-Saharan Africa.

[p. D.O. Ajibola] 126. Protectorates are neither colonial protectorates nor colonies. Protectorates are to all intent and purposes international legal personalities and remain independent States and they are not “colonial protectorates” of the protecting Powers. Therefore, after the Treaty of 1884, the City States of Old Calabar and their territories were simply protectorates of Great Britain. Before and after 1913 these City States of Old Calabar remained independent protectorates. There is nothing from the actions and instruments during this period which could describe the Old Calabar including Bakassi and other areas being claimed by the Kings and Chiefs, as a colony of Great Britain, nor is there anything in the Treaty indicating that Old Calabar including Bakassi, acquired the status of a colonial protectorate. Even Great Britain did not describe the territory as such and this cannot be done by any inference. In line with the provision of Article 31 of the 1969 Vienna Convention on the Law of Treaties and having regard to customary international law, the ordinary meaning to be given to the word “protectorate” is protectorate and not colonial protectorate. Great Britain at no time possessed territorial control or sovereignty over them. As far as Great Britain was concerned they were foreign countries and they were so treated by the British Foreign Office. Great Britain was therefore under a strict legal obligation to protect the rights of the Kings and Chiefs of Old Calabar in international law and not to transfer their territorial sovereignty to another State without their knowledge and consent.

[p. D.O. Ajibola] 206. As regards the Anglo-German Agreement of 11 March 1913, the Court ought to have preliminarily rejected it as invalid, because the Agreement is inconsistent with the concern of the Great Powers not to transfer “native populations from one administration to another without their consent and even without having informed them or consulted them” (Counter-Memorial of Nigeria, Vol. 1, paras. 8.50-8.51). This Agreement is contrary to the General Act of the Berlin Conference and in particular its Article 6. The European Powers were enjoined “to watch out over the preservation of the native tribes and not to take over or effect transfer of their territory”.

[pp. D.O. Koroma] 13. The Court, in paragraph 207 of its Judgment, held that the 1884 Treaty signed with the Kings and Chiefs of Old Calabar did not establish an international protectorate and it went on to say that from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them, and that the fact that a delegation was sent to London by the Kings and Chiefs of Old Calabar in 1913 to discuss matters of land tenure cannot be considered as implying international personality and simply confirmed the British administration by indirect rule. According to the Judgment, the Court held that Nigeria itself had not been able to say with clarity and certainty what happened to the international personality of the Kings and Chiefs of Old Calabar after 1885. This implies that the 1884 Treaty did not mean what was stated in it and Great Britain was entitled to alienate the territory covered by the Treaty of Protection despite the express provisions of that Treaty.

14. With respect, the reasoning given in support of the finding amounts to a serious distraction from the legal issues at hand. The duty of the Court, in my view, would have been to undertake a proper examination of the Treaty with a view to establishing its intention and meaning. The 1884 Treaty provides as follows:

“Article I. Her Majesty the Queen of Great Britain and Ireland, in compliance with the request of the Kings, Chiefs, and people of Old Calabar, hereby undertakes to extend to them, and to the territory under their authority and jurisdiction, her gracious favour and protection.

Article 2. The Kings and Chiefs of Old Calabar agree and promise 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 Majesty’s Government.” (Counter-Memorial of Nigeria, Vol. I, p. 109; emphasis added.)

15. The Treaty is thus unambiguously clear. Great Britain undertook to extend “her gracious favour and protection” to the Kings, Chiefs and people of Old Calabar. According to jurisprudence, a treaty whose terms and provisions are clear does not need to be interpreted. Nor may interpretation be used as a pretext to deny the clear meaning of a legal instrument. However, if the Court chooses to interpret the treaty it has to be interpreted in accordance with the applicable international rules at the time the treaty was concluded. Since the purpose of interpreting a treaty is to ascertain the intention of the parties to the treaty, there is, therefore, no reason to interpret the 1884 Treaty otherwise than in accordance with the international rules which operated at that time and which included the principle of pacta sunt servanda (the sanctity of treaties). Thus, if the Court had interpreted the 1884 Treaty, even in the light of the then existing canons of interpretation, the legal meaning that would have emerged is that the Queen of Great Britain and Ireland undertook to extend to the territory under the authority and jurisdiction of the Kings and Chiefs of Old Calabar “her gracious favour and protection”. The creation of the protectorate by the 1884 Treaty did not involve any cession or transfer of territory. On the contrary, the protecting Power ¾ Great Britain ¾ was only to protect the citizens of Old Calabar and not to dispossess them of their territory. Nor did the Treaty confer rights of sovereignty on Great Britain. On the contrary, it conferred a duty of protection and not for the benefit of a third party. Accordingly, since the Treaty was validly concluded and this has not been demurred, and Great Britain even raised it against other European States whenever their interests were in conflict in the region, Great Britain thus recognized the sovereignty of the Kings and Chiefs and people of Old Calabar over their territory and this cannot subsequently be denied. The 1884 Treaty thus constitutes evidence of an acknowledgment by Great Britain that the Kings and Chiefs of Old Calabar were capable of entering into a treaty relationship with a foreign Power and that they were recognized as capable of acting at an international level. Therefore, to argue that the 1884 Treaty did not mean what it said would not only be inconsistent with the express provisions of the Treaty itself, but would also be contrary to the rule of pacta sunt servanda (the sanctity of treaties), a rule which forms an integral part of international law and is as old as international law itself. In other words, it is impossible for a State to be released by its own unilateral decision from its obligations under a treaty which it has signed, whatever the relevant method or period. Thus, given that the 1884 Treaty was a treaty of protection and not one of cession involving the alienation of territory, it follows that Great Britain’s authority in relation to the Kings and Chiefs of Old Calabar did not include the power to conclude on their behalf treaties which entitled the protecting State to alienate the territory of the protected State; therefore, the relevant parts of the 1913 Anglo-German Agreement, by which Great Britain purportedly ceded the territory of the Kings and Chiefs of Old Calabar to Germany, lay outside the treaty-making competence of Great Britain, and were not binding on the Kings and Chiefs of Old Calabar nor ultimately on Nigeria as the successor State. There is, therefore, no legal basis on which to hold, as the Court has done in this case, that the protector State was entitled to cede territory without the consent and in breach of the protective agreement, by stating that “from the outset Britain regarded itself as administering the territories comprised in the 1884 Treaty, and not just protecting them” (paragraph 207) or that under the law prevalent at the time (in 1913) Great Britain was entitled “to determine its boundaries” (paragraph 209), even when this affected the territory of a protected State without its consent and inconsistent with the provisions of the relevant Treaty. These conclusions are totally at variance with the express provisions of the 1884 Treaty and in violation of the principle of pacta sunt servanda. Moreover, by concluding the 1884 Treaty, it is clear that the territory of Old Calabar was not regarded as a terra nullius but a politically and socially organized community which was recognized as such and which entered into a treaty relationship with Great Britain, a treaty Great Britain felt able to raise against other European States.

16. The foregoing is the correct conclusion which the Court would have reached had it taken the proper approach of interpreting the Treaty with respect to the territory of Old Calabar. Such examination would have shown that the Treaty precluded Great Britain from ceding the territory in question. It would also have revealed that Britain was not entitled to cede Bakassi under the terms of the Treaty. Such a finding would have been founded in law. It is common knowledge that territorial titles were acquired by European States in Africa by treaties of cession, but in the case of a protectorate treaty the sovereignty which inhered in the local ruler would be split in such a way that the protector State would exercise rights of external sovereignty in favour of the protected entity whilst the internal sovereignty would continue to be exercised by the local kings and rulers. In this regard, some African protectorate treaties, such as the 1884 Treaty with the Kings and Chiefs of Old Calabar, were expressed in negative clauses, which imposed restrictions on the contracting rulers as far as exercising their external sovereignty is concerned. Under such a treaty, the Kings and Chiefs undertook not to enter into treaties with other Powers, not to maintain relations (including diplomatic intercourse), not to go to war with such Powers, and, most importantly, not to cede territory. Thus, the clause prohibiting transfer of territory to “other” European Powers was considered the most important within the framework of the protectorate. In the case of the 1884 Treaty between the Kings and Chiefs of Old Calabar and Great Britain, Great Britain was not authorized in the international relations of the Kings and Chiefs of Old Calabar, or otherwise, to act in their name and on their behalf, nor did the Kings and Chiefs give up their right and power to make treaties and agreements with foreign States, but agreed that they would do so only after having first informed the British Government and having obtained its approval.