|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
[pp. ] Cameroons position is that the mouth of the Ebeji should be specified by the Court as lying on the co-ordinates determined for that purpose by the LCBC, that being an authentic interpretation of the Declaration and 1931 Exchanges. The Court has already indicated why the Report of the Marking Out of Boundaries by the LCBC is not to be so regarded. Cameroon asks the Court to find that in the alternative, the mouth of the Ebeji is situated at the point located at the co-ordinates 12° 31 12 N and 14° 11 48 E. Thus Cameroon prefers, in its alternative argument, the mouth of the western channel, and bases itself on tests adduced by this Court in the case concerning Kasikili/Sedudu Island (Botswana/Namibia) (I.C.J. Reports 1999, pp. 1064-1072, paras. 30-40) for identifying the main channel. In particular, it refers to greater flow and depth of this channel. Nigeria, on the other hand, requests the Court to prefer the mouth of the longer, eastern channel as the mouth of the River Ebeji, finding support for that proposition in the Palena arbitration of 9 December 1966, which spoke of the importance of length, size of drainage area, and discharge (38 International Law Reports (ILR), pp. 93-95).
59. The Court notes that the text of the Thomson-Marchand Declaration of 1929-1930, incorporated in 1931 in the Henderson-Fleuriau Exchange of Notes, refers to the mouth of the Ebeji. Thus the task of the Court is not, as in the Kasikili/Sedudu Island case, to determine the main channel of the river but to identify its mouth. In order to interpret this expression, the Court must seek to ascertain the intention of the parties at the time. The text of the above instruments as well as the Moisel map annexed to the Milner-Simon Declaration and the map attached to the Henderson-Fleuriau Exchange of Notes show that the parties only envisaged one mouth.
The Court notes that the co-ordinates, as calculated on the two maps, for the mouth of the Ebeji in the area just north of the site indicated as that of Wulgo are strikingly similar. Moreover these co-ordinates are identical with those used by the LCBC when, in reliance on those same maps, it sought to locate the mouth of the Ebeji as it was understood by the parties in 1931. The point there identified is north both of the mouth suggested by Cameroon for the western channel in its alternative argument and of the mouth proposed by Nigeria for the eastern channel.
60. On the basis of the above factors, the Court concludes that the mouth of the River Ebeji, as referred to in the instruments confirmed in the Henderson-Fleuriau Exchange of Notes of 1931, lies at 14° 12 12 longitude east and 12° 32 17 latitude north.
[pp. ] 203. The Court first observes that during the era of the Berlin Conference the European Powers entered into many treaties with local rulers. Great Britain concluded some 350 treaties with the local chiefs of the Niger delta. Among these were treaties in July 1884 with the Kings and Chiefs of Opobo and, in September 1884, with the Kings and Chiefs of Old Calabar. That these were regarded as notable personages is clear from the fact that these treaties were concluded by the consul, expressly as the representative of Queen Victoria, and the British undertakings of gracious favour and protection were those of Her Majesty the Queen of Great Britain and Ireland.
In turn, under Article II of the Treaty of 10 September 1884, The King and Chiefs of Old Calabar agree[d] and promise[d] 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.
The Treaty with the Kings and Chiefs of Old Calabar did not specify the territory to which the British Crown was to extend gracious favour and protection, nor did it indicate the territories over which each of the Kings and Chiefs signatory to the Treaty exercised his powers. However, the consul who negotiated and signed the Treaty, said of Old Calabar this country with its dependencies extends from Tom Shots ... to the River Rumby (on the west of the Cameroon Mountains), both inclusive. Some six years later, in 1890, another British consul, Johnston, reported to the Foreign Office that the rule of the Old Calabar Chiefs extends far beyond the Akpayafe River to the very base of the Cameroon Mountains. The Court observes that, while this territory extends considerably eastwards of Bakassi, Johnston did report that the Old Calabar Chiefs had withdrawn from the lands east of the Ndian. Bakassi and the Rio del Rey lay to the west of the Ndian, an area referred to by Johnston as their real, undoubted territory.
In the view of the Court Great Britain had a clear understanding of the area ruled at different times by the Kings and Chiefs of Old Calabar, and of their standing.