|III.||The International Court of Justice|
|2.||THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE|
|2.8.||Jurisdiction and Third States|
Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 311-313] 79. The Court therefore now turns to the crux of Nigeria's fourth preliminary objection, namely the assertion that the legal interests of Chad would be affected by the determination of the tripoint, and that the Court can therefore not proceed to that determination.
The Court recalls that it has always acknowledged as one of the fundamental principles of its Statute that no dispute between States can be decided without their consent to its jurisdiction (Monetary Gold Removed from Rome in 1943, Judgment, I.C.J. Reports 1954, p. 32.) Nevertheless, the Court has also emphasized that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case; and the Court has only declined to exercise jurisdiction when the interests of the third State "constitute the very subject-matter of the judgment to be rendered on the merits" (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 261, para. 55; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 104-105, para. 34).
The Court observes that the submissions presented to it by Cameroon refer to the frontier between Cameroon and Nigeria and to that frontier alone. These submissions do not refer to the frontier between Cameroon and the Republic of Chad either as contained in the Additional Application of Cameroon or as formulated in the Memorial. Certainly, the request to "specify definitively the frontier between Cameroon and the Federal Republic of Nigeria from Lake Chad to the sea" (para. 17 (f) of the Additional Application) may affect the tripoint, i.e., the point where the frontiers of Cameroon, Chad and Nigeria meet. However, the request to specify the frontier between Cameroon and Nigeria from Lake Chad to the sea does not imply that the tripoint could be moved away from the line constituting the Cameroon-Chad boundary. Neither Cameroon nor Nigeria contests the current course of that boundary in the centre of Lake Chad as it is described in the "technical document on the demarcation of the ... boundaries" mentioned in paragraph 65 above. Incidents between Nigeria and Chad in the Lake, as referred to by Nigeria, concern Nigeria and Chad but not Cameroon or its boundary with Chad. Any redefinition of the point where the frontier between Cameroon and Nigeria meets the Chad-Cameroon frontier could in the circumstances only lead to a moving of the tripoint along the line of the frontier in the Lake between Chad and Cameroon. Thus, the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered on the merits of Cameroon's Application; and therefore, the absence of Chad does not prevent the Court from proceeding to a specification of the border between Cameroon and Nigeria in the Lake.
80. The Court notes also that, in the case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), the tripoint where the boundary between Libya and Chad meets the western boundary of the Sudan, on the 24th meridian east of Greenwich, was determined without involvement of the Sudan. The eastern end-points of the principal lines taken into consideration by the Court in that case for the delimitation of the boundary between Libya and Chad were situated at various locations on the western boundary of the Sudan.
Furthermore, in that case, the Court, in the absence of Niger, fixed the western boundary between Libya and Chad as far as the point of intersection of the 15th meridian east and the parallel 23· of latitude north, a point at which, according to Chad, the frontiers of Chad, Libya and Niger meet.
81. The factual situation underlying the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) was quite different from the present case in the sense that the relevant part of the boundary of Niger at the time was not delimited; in that case the fixing of the tripoint therefore immediately involved Niger as a third State, which, however, did not prevent the Chamber from tracing the boundary between Burkina Faso and the Republic of Mali to its furthest point. Whether the location of the tripoint in Lake Chad has actually to be changed from its present position will follow from the judgment on the merits of Cameroon's Application. Such a change would have no consequence for Chad.
82. Finally the Court observes that, since neither Cameroon nor Nigeria challenge the current course of the boundary, in the centre of Lake Chad, between Cameroon and the Republic of Chad (see paragraph 79 above), it does not have to address - even if that was possible at the present preliminary stage - the argument presented by Nigeria concerning the legal principles applicable to the determination of boundaries in lakes and especially in large lakes like Lake Chad.
[p. 352 S.O. Parra-Anguren] 8. I agree with the statement in paragraph 79 that "the legal interests of Chad as a third State not party to the case do not constitute the very subject-matter of the judgment to be rendered an the merits of Cameroon's Application"; but I cannot accept that, at this stage of the proceedings, the Court can decide whether the interests of the Republic of Chad are "affected" by the determination of the tripoint Nigeria Cameroon-Chad in Lake Chad, and in the affirmative, to what extent.
Such a determination is a matter for the merits, as decided by the Court in the Nicaragua case, because "it is only when the general lines of the judgment to be given become clear that the States 'affected' could be identified" (I.C.J. Reports 1984, p. 425, para. 75).
9. I am in agreement with paragraph 81 of the Judgment, when it states that "Whether the location of the tripoint in Lake Chad has actually to be changed from its present position will follow from the judgment on the merits of Cameroon's Application." Therefore, it is very difficult for me to understand how the Court, at this stage of the proceedings, may also decide in the same paragraph that an eventual and unknown change of the tripoint Nigeria-Cameroon-Chad in Lake Chad "would have no consequence for Chad".
10. According to Article 62 of the Statute, "[s]hould a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene". Consequently, in stating that the interest of the Republic of Chad is not affected by the determination of the tripoint Nigeria-Cameroon-Chad in Lake Chad, as it does in paragraphs 78, 79 and 81 of the Judgment, the Court is, at the same time, precluding any possible intervention by the Republic of Chad at a later stage of the present case between Cameroon and Nigeria. In my opinion, this is a quite astonishing decision, in particular because the Court does not have the slightest idea as to what is the viewpoint of the Republic of Chad on the matter.
[p. 408 D.O. Ajibola] But the position of Chad with regard to the tripoint is more relevant in this case when compared to the cases of Frontier Dispute and Territorial Dispute. Mention has been made of earlier clashes between Nigeria and Chad in the same area which might or might not affect the tripoint. It can therefore be said that the interests of Chad and to some extent those of Niger constitute the subject-matter of this case which, to my mind, cannot be heard on the merits without Chad intervening as a party. Of course, the immediate answer on this could be the invocation of Article 59 of the Statute, in that the decision of the Court is binding only on the parties. However, this is a case which is in line with the cases of East Timor (Portugal v. Australia) and Certain Phosphate Lands in Nauru (Nauru v. Australia) . The earlier case of Monetary Gold Removed from Rome is also relevant here. The point has been made by Cameroon that its Applications relate only to the issue of the boundary between it and Nigeria. The issue here is not what Cameroon files or says but what, practically, is on the ground as to the position of the tripoint between Chad and the Parties. Quite definitely, the frontier between Cameroon and Nigeria will affect the frontier between Cameroon and Chad by virtue of the tripoint. A desirable situation that would certainly confer jurisdiction on the Court would be the seising of the Court by way of special agreement between Cameroon, Nigeria and Chad. For all these reasons my conclusion is that the fourth preliminary objection of Nigeria ought to be upheld.
[pp. 323-325] 115. The Court notes, as do the Parties, that the problem of rights and interests of third States arises only for the prolongation, as requested by Cameroon, of the maritime boundary seawards beyond point G. As to the stretch of the maritime boundary from point G inwards to the point of landfall on the Bakassi Peninsula, certainly a dispute has arisen because of the rival claims of the Parties to Bakassi and the fact that the Maroua Declaration is considered binding by Cameroon but not by Nigeria.
That dispute however does not concern the rights and interests of third States. That is so because the geographical location of point G is clearly closer to the Nigerian/Cameroonian mainland than is the location of the tripoint Cameroon-Nigeria-Equatorial Guinea to the mainland.
116. What the Court has to examine under the eighth preliminary objection is therefore whether prolongation of the maritime boundary beyond point G would involve rights and interests of third States and whether that would prevent it from proceeding to such prolongation. The Court notes that the geographical location of the territories of the other States bordering the Gulf of Guinea, and in particular Equatorial Guinea and Sao Tome and Principe, demonstrates that it is evident that the prolongation of the maritime boundary between the Parties seawards beyond point G will eventually run into maritime zones where the rights and interests of Cameroon and Nigeria will overlap those of third States. It thus appears that rights and interests of third States will become involved if the Court accedes to Cameroon's request. The Court recalls that it has affirmed, "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26). However, it stated in the same case that, "it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not a party to the case" (ibid. , p. 104, para. 34).
Similarly, in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), it adopted the same approach:
"a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court's decision on Nauru's claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction." (I.C.J. Reports 1992, pp. 261-262, para. 55.)
The Court cannot therefore, in the present case, give a decision on the eighth preliminary objection as a preliminary matter. In order to determine where a prolonged maritime boundary beyond point G would run, where and to what extent it would meet possible claims of other States, and how its judgment would affect the rights and interests of these States, the Court would of necessity have to deal with the merits of Cameroon's request. At the same time, the Court cannot rule out the possibility that the impact of the judgment required by Cameroon on the rights and interests of the third States could be such that the Court would be prevented from rendering it in the absence of these States, and that consequently Nigeria's eighth preliminary objection would have to be upheld at least in part. Whether such third States would choose to exercise their rights to intervene in these proceedings pursuant to the Statute remains to be seen.
117. The Court concludes that therefore the eighth preliminary objection of Nigeria does not possess, in the circumstances of the case, an exclusively preliminary character.
[p. 361 S.O. Kooijmans] 20. In delimitation of maritime boundary cases, therefore, knowledge of the viewpoints of third States involved is quintessential for the Court to enable it to perform its judicial task as requested by the parties if an application has been brought by Agreement. That would be even more so with regard to the position of Equatorial Guinea, if the present case had been brought by Agreement, in view of the fact that both parties had considered the determination of the triple point an essential condition for the delimitation of the maritime borders between the three countries. If there had been an Application by Agreement, the present case would, apart from geographical factors, have reflected the Libya/Malta case.
21. The present case, however, has been brought by unilateral application under Article 36, paragraph 2, of the Statute. The Applicant requests the Court to determine the maritime boundary with the Respondent, whereas it has itself, together with the Respondent, admitted that such delimitation requires the involvement of, and thus negotiations with, a third State. Under such conditions it does not seem proper or reasonable to "compel" that third State to expose its views and its position by means of an intervention under Article 62 even before negotiations with the neighbouring States have begun. Of course, the third State is free not to intervene but in that case the Court could - and in the present case in all probability would - be prevented from rendering the judgment required by the Applicant. Since there is no agreed request by both Parties, considerations of judicial propriety could in the present case have led the Court to the decision to uphold the eighth preliminary objection in the preliminary phase of the proceedings.