|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 304-308] 61. In its third preliminary objection, Nigeria contends that "the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission".
62. In support of this argument, Nigeria invokes the treaty texts governing the Statute of the Commission as well as the practice of member States. It argues that "the procedures for settlement by the Commission are binding upon the Parties" and that Cameroon was thus barred from raising the matter before the Court on the basis of Article 36, paragraph 2, of the Statute.
63. For its part, Cameroon submits to the Court that
"no provision of the Statute of the Lake Chad Basin Commission establishes in favour of that international organization any exclusive competence in relation to boundary delimitation".
It adds that no such exclusive jurisdiction can be inferred from the conduct of member States. It therefore calls upon the Court to reject the third preliminary objection.
66. In the light of the treaty texts and the practice thus recalled, the Court will consider the positions of the Parties on this matter. For its part, Nigeria first of all contends that "the role and Statute of the Commission" must be understood "in the framework of regional agencies" referred to in Article 52 of the United Nations Charter. It accordingly concludes that "the Commission has an exclusive power in relation to issues of security and public order in the region of Lake Chad and that these issues appropriately encompass the business of boundary demarcation".
Cameroon argues, for its part, that the Commission does not constitute a regional arrangement or agency within the meaning of Article 52 of the Charter, pointing in particular to the fact that
"there has never been any question of extending this category to international regional organizations of a technical nature which, like the [Commission], can include a mechanism for the peaceful settlement of disputes or for the promotion of that kind of settlement".
67. The Court notes that Article 52, paragraph 1, of the Charter refers to "regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action". According to paragraph 2 of that Article,
"[t]he Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council".
Under Article 53, the Security Council may use these arrangements or agencies for "enforcement action under its authority".
From the treaty texts and the practice analysed at paragraphs 64 and 65 above, it emerges that the Lake Chad Basin Commission is an international organization exercising its powers within a specific geographical area; that it does not however have as its purpose the settlement at a regional level of matters relating to the maintenance of international peace and security and thus does not fall under Chapter VIII of the Charter.
68. However, even were it otherwise, Nigeria's argument should nonetheless be set aside. In this connection, the Court notes that, in the case concerning Military and Paramilitary Activities in and against Nicaragua, it did not consider that the Contadora process could "properly be regarded as a 'regional arrangement' for the purposes of Chapter VIII of the United Nations Charter". But it added that, in any event,
"the Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of the Nicaraguan Application" (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 440).
Whatever their nature, the existence of procedures for regional negotiation cannot prevent the Court from exercising the functions conferred upon it by the Charter and the Statute.
69. Nigeria further invokes Article 95 of the United Nations Charter according to which
"Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future."
According to Nigeria, the Lake Chad Basin Commission should be seen as a tribunal falling under the provisions of this text. This would mean that, if the Court were to pronounce on this submission of Cameroon it "would be in breach of the principle of the autonomy of jurisdictional competence" and "would be exercising an appellate jurisdiction".
The Court considers that the Lake Chad Basin Commission cannot be seen as a tribunal. It renders neither arbitral awards nor judgments and is therefore neither an arbitral nor a judicial body. Accordingly, this contention of Nigeria must also be set aside.
70. Nigeria further maintains that the Convention of 22 May 1964, confirmed by the practice of the member States of the Commission, attributes to that Commission an exclusive competence for the settlement of boundary disputes. It concludes from this that the Court cannot entertain Cameroon's submissions requesting it to determine the boundary between the two countries in this sector.
The Court cannot subscribe to that reasoning. It notes first of all that no provision in the Convention ascribes jurisdiction and a fortiori exclusive jurisdiction to the Commission as regards the settlement of boundary disputes. In particular, such a jurisdiction cannot be deduced from Article IX, paragraph (g), of the Convention (see paragraph 64 above).
The Court further notes that the member States of the Commission subsequently charged it with carrying out the demarcation of boundaries in the region on the basis of the agreements and treaties referred to in the experts' report of November 1984 (see paragraph 65 above). Thus, as pointed out by Nigeria, "the question of boundary demarcation was clearly within the competence of the [Commission]". This demarcation was designed by the States concerned as a physical operation to be carried out in the field under the authority of the Commission with a view to avoiding the reoccurrence of the incidents that had arisen in 1983.
But the Commission has never been given jurisdiction, and a fortiori exclusive jurisdiction, to rule on the territorial dispute now involving Cameroon and Nigeria before the Court, a dispute which moreover did not as yet exist in 1983. Consequently, Nigeria's argument must be dismissed.
71. Nigeria also argues that, from 1983 to 1994, "Cameroon had clearly and consistently evinced acceptance of the regime of exclusive recourse to the Lake Chad Basin Commission"; Cameroon then appealed to the Court contrary to the commitments it had entered into. This course of conduct, it was argued, had been prejudicial to Nigeria, deprived as it was of the "consultation" and "negotiation" procedures afforded by the Commission. Nigeria claims that Cameroon is estopped from making its Application.
The Court points out that the conditions laid down in its case-law for an estoppel to arise, as set out in paragraph 57 above, are not fulfilled in this case. Indeed, Cameroon has not accepted that the Commission has jurisdiction to settle the boundary dispute now submitted to the Court.
This argument must also be set aside.
[p. 407 D.O. Ajibola] After all, the assignment of the Commission includes not only the delimitation and demarcation of boundaries within the Lake Chad Basin; it also includes the function of dispute settlement and it therefore qualifies as an arbitral or administrative tribunal, as the case may be. Hence Nigeria rightly invokes the provision in Article 95 of the Charter. An examination of Article 94 of the Charter, which deals with the issue of compliance "with the decision of the International Court of Justice", clearly distinguishes this Court from the establishment of such a tribunal as that envisaged in Article 95 as an alternative body that could be set up instead of an application being filed with the Court.
One point is therefore clear with regard to this preliminary objection: that the Commission had been assigned and is still seised of the duty to delimit and demarcate the boundary between both Parties in the Lake Chad Basin, and the subsequent assignment of the same work to the Court is, therefore, inadmissible. Hence my conclusion that the Court lacks jurisdiction. Furthermore, the Commission's assignment, carried out for and on behalf of the four member States, is a joint affair, apparently indivisible. Both Parties in the present case are therefore obliged to recognize and abide by the exclusive competence of the Lake Chad Basin Commission.
[pp. 414-415 D.O. Ajibola] ... the provisions of the two Articles are similar, but while one deals with the exclusive economic zone (Art. 74), the other deals with the issue of the continental shelf (Art. 83). Furthermore, both Parties are signatories to the Convention, which they have also ratified. The question now is whether these provisions are binding on both of them; in my view, there is no doubt about that. Before instituting an application in this Court, it is a condition precedent that both Parties ought to attempt genuinely to agree on the settlement of their maritime boundary dispute, failing which such a matter could be brought before the Court. These are mandatory provisions for both Parties. Cameroon, for its part, contends that there was no compelling reason to negotiate nor reach an agreement before filing an application before the Court, and went further to state that attempts were made to reach an agreement but failed. While it may be true to say that there was an attempt to negotiate and agree on their maritime boundary delimitation up to point G, there is however no evidence to indicate that there was any attempt to reach such an agreement regarding their maritime disputes beyond that point. To institute therefore an action in the Court without compliance with the provisions set out above, under the Law of the Sea Convention, is a fatal omission which makes such an application inadmissible. In any case, the Court, pursuant to Article 38 of the Statute, must apply international law and "international conventions, whether general or particular ..." (para. 1 (a)). This has always been the position under general international law and it was first affirmed by the Court in 1969 in the North Sea Continental Shelf-cases, which emphasize the need for parties to be given the opportunity to negotiate, when it held that
"the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful ..." (North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47).
A clear guideline was expressed in the Gulf of Maine Chamber case that first an agreement must be sought, following negotiations which should be conducted in good faith with a clear and honest intention of achieving a successful result. And the Chamber went on to state in its Judgment that
"Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence." (Delimitation of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports 1984, p. 299.)
It is therefore immaterial to determine whether this is a procedural or a substantive issue. What is clear is that the process of negotiation and attempt to reach an agreement in good faith must precede any reference to a third-party adjudication. In any event, I strongly believe that without complying with the prerequisite condition of negotiation and attempt to reach an agreement, Cameroon failed to comply with a requirement of substance and not just a merely procedural one. This is not a question of jurisdiction under Article 36 (2) of the Statute, but one of admissibility. My conclusion is that the Applications of Cameroon are not admissible as regards a dispute over the maritime boundary.