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World Court Digest

I. Substantive International Law - First Part
7.2. Treatymaking Capacity

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

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.