|III.||The International Court of Justice|
|4.||JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE|
|4.2.||Res judicata / Effects of Judgments|
Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002
[pp. ] 312. The Court will recall that in paragraphs 57, 60, 61 and 225 of the present Judgment it fixed the boundary between the two States in the Lake Chad area and the Bakassi Peninsula. Nigeria does not deny that Nigerian armed forces and a Nigerian administration are currently in place in these areas which the Court has determined are Cameroonian territory, adding in respect of the establishment of the municipality of Bakassi that, if the Court were to recognize Cameroons sovereignty over such areas, there is nothing irreversible in the relevant arrangements made by Nigeria. The same reasoning clearly applies to other spheres of civil administration, as well as to military or police forces.
313. The Court has already had occasion to deal with situations of this kind. In the case concerning the Temple of Preah Vihear, it held that the temple was situated on territory falling under the sovereignty of Cambodia. From this it concluded that Thailand [was] under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory (Merits, Judgment, I.C.J. Reports 1962, p. 37).
More recently, in the Territorial Dispute (Libyan Arab Jamahiriya/Chad), the Court fixed the boundary between those two States along a course which allocated to Chad territories in which Libya had set up a civil administration and stationed military forces. Following that Judgment of 3 February 1994, the two States on 4 April 1994 signed an agreement with a view to implementing the Judgment; that agreement provided for Libyas evacuation of the territories in question, to be monitored by a group of observers to be established by the Security Council. The evacuation was completed on 31 May 1994.
314. The Court notes that Nigeria is under an obligation in the present case expeditiously and without condition to withdraw its administration and its military and police forces from that area of Lake Chad which falls within Cameroons sovereignty and from the Bakassi Peninsula.
315. The Court further observes that Cameroon is under an obligation expeditiously and without condition to withdraw any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the Bakassi Peninsula which pursuant to the present Judgment fall within the sovereignty of Nigeria. Nigeria has the same obligation in regard to any administration or military or police forces which may be present in areas along the land boundary from Lake Chad to the Bakassi Peninsula which pursuant to the present Judgment fall within the sovereignty of Cameroon.
316. The Court further notes that the implementation of the present Judgment will afford the Parties a beneficial opportunity to co-operate in the interests of the population concerned, in order notably to enable it to continue to have access to educational and health services comparable to those it currently enjoys. Such co-operation will be especially helpful, with a view to the maintenance of security, during the withdrawal of the Nigerian administration and military and police forces.
[pp. ] 318. Cameroon, however, is not only asking the Court for an end to Nigerias administrative and military presence in Cameroonian territory but also for guarantees of non-repetition in the future. Such submissions are undoubtedly admissible (LaGrand (Germany v. United States of America), Judgment of 27 June 2001, paras. 117 et seq.). However, the Judgment delivered today specifies in definitive and mandatory terms the land and maritime boundary between the two States. With all uncertainty dispelled in this regard, the Court cannot envisage a situation where either Party, after withdrawing its military and police forces and administration from the others territory, would fail to respect the territorial sovereignty of that Party. Hence Cameroons submissions on this point cannot be upheld.
319. In the circumstances of the case, the Court considers moreover that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigerias responsibility to Cameroon has been engaged as a result of that occupation.
[pp. Decl. Herczegh]I cannot however subscribe to the proposition set out in paragraph 238 of the reasoning, which states inter alia:
"The court considers that, in particular in the case of maritime delimitations where the maritime areas of several States are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects even if only indirect of a judgment affecting their legal rights."
I see in this passage a scarcely veiled criticism, which I cannot share, of
the Court's Statute, which is an integral part of the United Nations Charter.
Article 59 of the Statute provides as follows: "The decision of the Court
has no binding force except between the parties and in respect of that
particular case." That is a necessary, indeed inevitable, consequence of
the fact that the Courts jurisdiction is founded on the consent of the parties.
The Court must ensure that it takes no decision which oversteps the limits laid
down by Article 59 and which would in consequence be without binding force and
remain dead letter. This is not only a principle of the sound administration of
justice, but also an obligation incumbent upon the Court deriving from its
function as laid down by its Statute, namely, in particular, to decide in
accordance with international law such disputes as are submitted to it.
In certain circumstance, satisfying the obligation not to affect the rights of third States may pose problems for the Court, which explains and justifies the inclusion in its Statute of a provision concerning the intervention of a State which considers that it has an interest in a dispute of a legal nature which may be affected by the decision in the case (Art. 62). The Judgment of 14 April 1981 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to Intervene, and the separate opinions of Judges Morozov, Oda and Schwebel appended to that Judgment, and then the Judgment of 21 March 1984 in the case concerning Continental Shelf (Libyan Arab Jamahihiya/Malta), Application for Permission to Intervene, and the dissenting opinions of Judges Sette-Camara, Oda, Schwebel and Jennings clearly demonstrate the complexity of the problem and the Court's efforts to give a consistent interpretation of the relevant provisions of the Statute and to apply them in accordance with their letter and their spirit. The last word has yet to be said in this debate. However, as Judge Schwebel so aptly put it: "Article 59 cannot, by any canon of interpretation, be read so as to read Article 62 out of the Statute" (I.C.J. Reports 1984, p. 134, para. 9). Moreover, at least in my opinion, it cannot be said that the protection afforded to the rights of third parties by Article 59 of the Statute might be insufficient. The criticism of this Article strikes me as misplaced.
This is not a rule of law which, in itself, might be said sufficiently to protect or not to protect a legal interest of a particular country. It is, rather, a provision which it is for the Court to interpret and apply in such a way that such protection is made as effective as possible. Hence, whether that protection proves to be sufficient or not depends on the Court. In the present case the Court carefully considered the legal interests of Equatorial Guinea and Sao Tome and Principe and it was in that sense and in that spirit that it rendered its Judgment concerning the determination of the maritime boundary between Cameroon and Nigeria. In order to do so it had no need whatever to make a critical remark in regard to an Article of the Statute.