|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.2.||Conditions for a Decision on the Merits|
|2.2.2.||Necessity of Diplomatic Negotiations|
Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 300-304] 48. Nigeria raises a second preliminary objection stating that
"for a period of at least 24 years prior to the filing of the Application the Parties have in their regular dealings accepted a duty to settle all boundary questions through the existing bilateral machinery".
According to Nigeria, an implicit agreement is thus said to have been reached with a view to resorting exclusively to such machinery and to refraining from relying on the jurisdiction of the International Court of Justice. In the alternative, Nigeria claims that by its conduct Cameroon is estopped from turning to the Court. Finally, Nigeria invokes the principle of good faith and the rule pacta sunt servanda in support of this argument.
56. Turning to legal considerations, the Court will now consider the first branch of the Nigerian objection. It recalls first that, "Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes" (Aegean Sea Continental Shelf, Judgment, I.C.J Reports 1978, p. 12, para. 29). Neither in the Charter nor otherwise in international law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposal by the Advisory Committee of Jurists in 1920 (Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes, pp. 679, 725-726). Nor is it to be found in Article 36 of the Statute of this Court.
A precondition of this type may be embodied and is often included in compromissory clauses of treaties. It may also be included in a special agreement whose signatories then reserve the right to seise the Court only after a certain lapse of time (cf. Territorial Dispute (Libyan Arab Jamahiriya/ Chad), Judgment, I.C.J. Reports 1994, p. 9). Finally, States remain free to insert into their optional declaration accepting the compulsory jurisdiction of the Court a reservation excluding from the latter those disputes for which the parties involved have agreed or subsequently agree to resort to an alternative method of peaceful settlement. In this case, however, no reservation of this type was included in the Declarations of Nigeria or Cameroon on the date of the filing of the Application.
Moreover, the fact that the two States have attempted, in the circumstances set out in paragraphs 54 and 55 above, to solve some of the boundary issues dividing them during bilateral contacts, did not imply that either one had excluded the possibility of bringing any boundary dispute concerning it before other fora, and in particular the International Court of Justice. The first branch of Nigeria's objection accordingly is not accepted.
57. Turning to the second branch of the objection, the Court will examine whether the conditions laid down in its jurisprudence for an estoppel to exist are present in the instant case.
An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or had suffered some prejudice (North Sea Continental Shelf Judgment, I.C.J. Reports 1969, p. 26, para. 30; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 63).
These conditions are not fulfilled in this case. Indeed, as pointed out in paragraph 56 above, Cameroon did not attribute an exclusive character to the negotiations conducted with Nigeria, nor, as far as it appears, did Nigeria. Furthermore, Nigeria does not show that it has changed its position to its detriment or that it has sustained prejudice in that it could otherwise have sought a solution to the border problems existing between the two States by having recourse to other procedures, but was precluded from doing so by reliance on the positions allegedly taken by Cameroon.
58. Finally, the Court has not been persuaded that Nigeria has been prejudiced as a result of Cameroon's having instituted proceedings before the Court instead of pursuing negotiations which, moreover, were dead-locked when the Application was filed.
59. This being so, in bringing proceedings before the Court, Cameroon did not disregard the legal rules relied on by Nigeria in support of its second objection. Consequently, Nigeria is not justified in relying on the principle of good faith and the rule pacta sunt servanda, both of which relate only to the fulfilment of existing obligations. The second branch of Nigeria's objection is not accepted.
[pp. 321-322] 107. As to the second argument of Nigeria, the Court notes that, while its first argument concerned the whole maritime boundary, the second one seems only to concern the delimitation from point G seawards. That was accepted by counsel for Nigeria and seems to correspond to the fact that there were extensive negotiations between the two Parties in the period between 1970 and 1975 on the maritime boundary from the Landfall on Bakassi to point G, which resulted in the disputed Maroua Declaration.
Moreover, the Court recalls that, in dealing with the cases brought before it, it must adhere to the precise request submitted to it. Nigeria here requests the Court to hold that,
"at the juncture where there is a determination of the question of title over the Bakassi Peninsula, the issues of maritime delimitation will not be admissible in the absence of sufficient action by the Parties, on a footing of equality, to effect a delimitation 'by agreement on the basis of international law"'.
What is therefore in dispute between the Parties and what the Court has to decide now is whether the alleged absence of sufficient effort at negotiation constitutes an impediment for the Court to accept Cameroon's Claim as admissible or not.
This matter is of a genuinely preliminary character and has to be decided under Article 79 of the Rules of Court.
108. In this connection, Cameroon and Nigeria refer to the United Nations Convention on the Law of the Sea, to which they are parties. Article 74 of the Convention, relating to the exclusive economic zone, and Article 83, concerning the continental shelf, provide, in their first identical paragraphs, that the delimitation
"between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution".
These are followed by identical paragraphs 2 which provide that "If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV." One of these procedures is the submission of the case to the Court for settlement by contentious proceedings.
109. However, the Court notes that, in this case, it has not been seised on the basis of Article 3b, paragraph 1, of the Statute, and, in pursuance of it, in accordance with Part XV of the United Nations Convention on the Law of the Sea relating to the settlement of disputes arising between the parties to the Convention with respect to its interpretation or application. It has been seised on the basis of declarations made under Article 36, paragraph 2, of the Statute, which declarations do not contain any condition relating to prior negotiations to be conducted within a reasonable time period.
The second argument of Nigeria cannot therefore be upheld.
[pp. 336-337 S.O. Oda] 20. More generally, the delimitation of the exclusive economic zone and the continental shelf shall, according to the 1982 United Nations Convention on the Law of the Sea, be "effected by agreement on the basis of international law ... in order to achieve an equitable solution"
(Arts. 74 and 83).
In the event that a delimitation of the maritime boundary line for the exclusive economic zone or the continental shelf is required between neighbouring States, the firm wishes of the parties to delimit their respective areas must in general exist, and negotiation must be continued for this purpose. The relevant parties, after negotiation, may determine the line by agreement and, if they fail to agree, they may then seek a third-party judgment. However, the mere fact that the parties have not been able to reach agreement on the delimitation in their negotiations does not constitute a "legal dispute".
21. There has been no negotiation between Cameroon and Nigeria with a view to deciding on the delimitation of the exclusive economic zone and the continental shelf, nor has a "legal dispute" arisen between Cameroon and Nigeria which might fall within the purview of Article 36 (2) of the Court's Statute. If the Court considers that Cameroon's Application concerning the delimitation of the exclusive economic zone and the continental shelf can be entertained on the grounds that there is a "legal dispute" under the circumstances appertaining to this case, then there will be hundreds of similar disputes that could be brought to the Court from all parts of the world.
22. Over the past 20 years, I have made known my belief that maritime delimitation may be dealt with more properly by recourse to arbitration than to judicial settlement. However, I concede that the Court cannot, in principle, refuse to receive a request for demarcation of a maritime boundary if that request is made jointly by the parties. It should be noted that delimitation cases have in the past been brought to the Court by special agreement under Article 36 (1) of the Court's Statute - namely, the cases concerning the North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands); the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya); the case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta); the chamber case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America); the chamber case concerning the Frontier Dispute (Burkina Faso/Republic of Mali); and the chamber case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras).
23. In conclusion, Cameroon's request that the Court specify the boundary or prolong the maritime boundary stated in item (f) of Section V ("Decision Requested") of Application-I and in submission (c), both first and second subparagraphs, is not a matter that can be unilaterally presented to the Court. The Court should have refused Cameroon's request, as mentioned above, as it is not competent to entertain such a unilateral application.
[p. 346 S.O. Higgins] 110. ... There is an aspect related to the first limb of Nigeria's objection which seems to me important. I refer to the question of whether there is, in fact and in law, a dispute relating to the maritime zones of Cameroon and Nigeria out to the limit of their respective jurisdictions. Nigeria, in its written and oral pleadings on its seventh preliminary objection, has focused on the alleged absence of relevant negotiations. It contends that as a matter of general international law and by virtue of Articles 74 and 83 of the United Nations Convention on the Law of the Sea, a State must negotiate its maritime boundary and not impose it unilaterally and that the Court thus lacks jurisdiction and/or the claim on maritime delimitation is inadmissible. But it may be that the real relevance of the issue of negotiation lies rather in providing an indication as to whether a dispute exists at all over this matter. This, rather than whether negotiation is a "free standing" pre-condition for bringing a claim an a maritime boundary, seems to me the real issue.
[pp. 354-355 S.O. Kooijmans] 3. Nigeria's second argument is that the issue of maritime delimitation is inadmissible in the absence of sufficient prior negotiations with regard to the maritime boundary beyond point G. Nigeria does not contest that extensive negotiations have taken place with regard to the course of the boundary from the landfall on Bakassi to point G; these negotiations led to the Declaration of Maroua, the binding character of which is contested by Nigeria. Nigeria does not deny, therefore, that there is a legal dispute between the Parties concerning that part of the boundary. It contends, however, that there never have been serious negotiations on the determination of the boundary between point G and "the limit of the maritime zones which international law places under the Parties' respective jurisdiction", whereas such negotiations are prescribed by Articles 74 and 83, paragraphs 2, of the 1982 Convention on the Law of the Sea.
4. I am of the opinion that, whatever must be held of the interpretation of these Articles of the Law of the Sea Convention with respect to the necessity of prior negotiations before a maritime delimitation issue may be unilaterally submitted to third-party settlement, such negotiations must have the possibility of leading to an agreement. In the present case, negotiations clearly could not have led to a positive result. The dispute which has developed on the legal value of the Maroua Declaration may be said to have made negotiations on the seaward continuance of the line agreed upon in that Declaration futile. And this situation has been aggravated by the subsequent dispute about the legal status of the Bakassi Peninsula. If negotiations cannot lead to results, they cannot be seen as a necessary pre-condition in the meaning of Articles 73 and 84 of the 1982 Convention, even if these Articles were to be interpreted as making such negotiations indispensable.
[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.