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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.5. | Preliminary Objections |
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Land and Maritime Boundary
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[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 Tomé 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.
[pp. 343-344 S.O.Vereshchetin] The repeated statements of Nigeria to the effect that there is no dispute concerning "boundary delimitation as such" and the reserved and cautious formulations in the above-quoted answer may signify the disinclination of Nigeria to unfold its legal arguments on the merits. True, they may also be viewed as evidence of the probable emergence of a broader dispute. However, the real scope of such a dispute, if any, its parameters and concrete consequences can be clarified only at the merits stage when the Court has compared the maps produced by both Parties and more fully heard and assessed the substance of interpretation placed by each Party on respective legal instruments.
This prompts the conclusion that the objection in question does not possess an exclusively preliminary character within the meaning of Article 79, paragraph 7, of the Rules of Court. At this stage, the Court cannot easily dismiss the objection of Nigeria, according to which, with the exception of the concretely defined sectors of the common frontier, "there is no dispute concerning boundary delimitation as such throughout the whole length of the boundary from the tripoint in Lake Chad to the sea". Moreover, in its submissions Nigeria has specified long stretches, not to say most, of the boundary, remaining outside the disputed areas (see, for example, the final submissions on behalf of Nigeria in the oral proceedings, paragraph 19 of the Judgment).
Thus, from the factual point of view, the competing claims of Cameroon and Nigeria over territories situated in three sectors of their common boundary, namely in the areas of the Bakassi Peninsula, Darak and adjacent islands and Tipsan, taken together with sporadic incidents in some other sectors of the boundary, do not justify the sweeping conclusion that a dispute has already manifestly arisen concerning the whole length of the boundary between the two States. Therefore, the finding of the Court on the existence of such a dispute is not well founded on the facts of the matter. It is equally ill founded in point of law, for the Court has not objectively determined that the legal basis of the whole of the boundary is challenged by one of the Parties.
[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 on 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 an the matter.
