(Cameroon v. Nigeria)
In an application dated 29 March 1994, amended on 6 June 1994, Cameroon asked the Court to determine the question of sovereignty over the Bakassi Peninsula and over islands in Lake Chad, and to specify the course of the land and maritime boundary between itself and Nigeria. As a basis of jurisdiction Cameroon referred to the declaration made by both States under Article 36, paragraph 2, of the Statute of the Court. On 13 December 1995 Nigeria raised eight preliminary objections to the jurisdiction of the Court and the admissibility of Cameroon's claims. The proceedings on the merits were accordingly suspended and time-limits fixed within which Cameroon had to present its observations on the preliminary objections. While the procedure on the preliminary objections was pending, Cameroon, on 12 February 1996, requested the Court to indicate provisional measures after "serious armed incidents" had taken place on 3 February between the forces of both Parties in the Bakassi Peninsula.
Indication of Provisional Measures
Order of 15 March 1996
In its request for provisional measures Cameroon had asked the Court to indicate that the armed forces of the Parties should withdraw to the position they were occupying before the Nigerian armed attack of 3 February 1996 and that the Parties should abstain from all military activity along the entire boundary as well as from any act which might hamper the gathering of evidence. In its order the Court found that "both Parties should ensure that no action of any kind, and particularly no action by their armed forces, is taken which might prejudice the rights of the other in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before it". The reasoning of the Court was based on its power to preserve the rights which may be adjudged in the merits. The fact that the President of the Republic of Togo had conducted a mediation resulting in a communiqué announcing the cessation of all hostilities published on 17 February 1996 did not, according to the Court, deprive it of its power to indicate provisional measures of protection. Since the events that had given rise to the request and particularly the killing of persons caused irreparable damage to the rights that the Parties may have over the Peninsula and since persons in the disputed area and consequently rights of the Parties were exposed to serious risk, the indication of interim measures was justified in order not to jeopardise the settlement of the dispute. The Court underlined that the indication of provisional measures did not affect the pending question of jurisdiction and admissibility or the decision to be taken on the merits.
Jurisdiction of the Court and Admissibility of the Application
Judgment of 11 June 1998
On June 11, 1998, the ICJ delivered its decision on the preliminary
objections in the case. It rejected seven of the eight objections and stated
that the eighth objection had not an exclusively preliminary character and thus
joined it to the merits
With its first objection Nigeria contended that the Court had no jurisdiction in the case due to the fact that the declaration of Cameroon under Article 36, paragraph 2, of the Statute and dating 3 March 1994 had been transmitted to the parties of the Statute only nearly one year later. The effect of the belated transmission was that Nigeria did not know of the acceptance of the jurisdiction by Cameroon on the date of the filing of the application. The ICJ rejected the objection concluding that the general rule reflected in Articles 16 and 24 of the Vienna Convention on the Law of Treaties, which , as the Court observed, may only be applied to declarations accepting the Court's jurisdiction as obligatory by analogy, was that the deposit of the instrument of ratification, acceptance, approval or accession establishes the consent of a State to be bound by a treaty. The treaty enters into force as regards that State on the day of the deposit. By these findings the ICJ confirmed its decision concerning the Right of Passage over Indian Territory-Case. The ICJ rejected the argument of Nigeria that the omission of information concerning the acceptance of the Court's jurisdiction infringed upon the principle of good faith. Good faith does neither contain an obligation to inform other States parties to the Statute of the intention to accept the Court's jurisdiction nor to bring proceedings before the Court. Finally the ICJ did not accept the objection of Nigeria claiming that there was no reciprocity because of the lack of information. As in other cases already the Court observed in this regard that the notion of reciprocity is concerned with the scope and substance of commitments entered into and not with the formal conditions of their creation, duration or extinction. The delay in the receipt of the copies of the declaration of acceptance did therefore not affect the principle of reciprocity.
In its second objection Nigeria stated that for a period of 24 years the Parties had tried to settle the dispute and that this meant that they accepted a duty to settle all boundary questions by bilateral negotiation, Cameroon being, according to the argument of Nigeria, thus estopped from turning to the Court. With regard to the first argument the Court found that the negotiations could not imply an exclusion of the possibility to bring the dispute before the Court since in Article 33 of the UN Charter negotiation and judicial settlement are enumerated together. As to the argument of estoppel the Court observed that this would only exist if by its acts or declarations Cameroon had consistently made it fully clear that it agreed to settle the dispute by negotiation alone, which condition was not fulfilled in the present case.
The third objection related to the boundary delimitation in the Lake Chad which, according to Nigeria, was entrusted to the exclusive competence of the "Lake Chad Basin Commission". The Statute of this Commission, which was established as an international organization, did, however, not contain any provisions for the settlement of disputes through the Commission and did furthermore not allow to consider it as a "regional arrangement or agency" within the meaning of Article 52 of the UN Charter. But even if it were otherwise the existence of procedures for regional negotiation could not prevent the Court from exercising its functions. Even the fact that the Commission was engaged in finding a demarcation in the Lake Chad Basin could not lead to judicial self-restraint of the Court on grounds of judicial propriety. Therefore, the Court rejected also the third objection.
The fourth objection related to the fact that the boundary between Cameroon and Nigeria in Lake Chad affected at its final point a third State, the Republic of Chad, and that therefore the Court could not determine this tripoint without the participation of the third State in the proceedings. This question had already been dealt with by the Court in prior cases and the Court found that in this case the legal interests of Chad as a third State not party to the case did not constitute the very subject matter of the case so that the Court could proceed without the participation of Chad.
With its fifth objection Nigeria alleged that there was no dispute concerning "boundary delimitation as such" throughout the whole length of the boundary from the tripoint in Lake Chad to the sea. With regard to its prior statements concerning the question of the existence of a dispute the Court found that not the whole boundary was in dispute but that Nigeria had not clearly presented its own position of that matter in order to see as to which sectors of the boundary there was agreement between the parties and where not. Thus it was impossible to define at this stage of the proceedings the exact scope of the claim; however, it was evident that a dispute existed between the two parties, at least as to the legal bases of the boundary.
The sixth objection was to the effect that there was no basis for a judicial determination that Nigeria was responsible under international law for the alleged frontier incursions. Nigeria contended that the submissions of Cameroon in this respect were not precise enough as to dates, circumstances and locations and that therefore Nigeria did not have the necessary knowledge in order to prepare its reply. The Court stated that this objection concerned mainly the requirements which an application must meet under Article 38, paragraph 2, of the Rules and that this provision did not preclude later additions to the statement of the facts and the grounds on which a claim is based because it does not provide that the applicant State is strictly limited to what it had said in its application.
In its seventh objection Nigeria contended that for two reasons there was no legal dispute concerning the delimitation of the maritime boundary between the two Parties which was at the present time appropriate for resolution by the Court. In the first place, no determination of the maritime boundary was possible prior to the determination of title in respect of the Bakassi Peninsula, and secondly, after having determined the title over the Bakassi Pensinsula, the issues of maritime delimitation had first to be addressed by the Parties on order to effect a delimitation by agreement according to the Convention on the Law of the Sea. The Court rejected both arguments. It found that, indeed, it had first to determine the title over Bakassi Peninsaula, but since it was seized with both questions it was free to arrange the order in which it would address the issues before it. As to the question of the necessity of first trying to delimit the boundary by agreement, the Court noted that it had not been seized on the basis of Article 36, paragraph 1, of the Statute and , in pursuance of it, in accordance with Part XV of the Convention on the Law of the Sea, but on the basis of Article 36, paragraph 2, of the Statute which does not require prior negotiations before addressing the Court. Therefore the Court rejected this objection also.
With its eighth objection Nigeria argued that the question of maritime delimitation necessarily involved rights and interests of third States and was to that extent inadmissible without the participation of those third States in the proceedings. The Court found that this question was relevant only with respect to the maritime boundary beyond a particular point G within the Gulf of Guinea and that, in fact, the rights and interests of Equatorial Guinea and Sao Tome and Principe could possibly become involved if the Court acceded to Cameroon's request. Whether this would be the case could, however, not be decided as a preliminary matter but only in the context with the merits of Cameroon's request. Therefore, the Court stated that the eighth preliminary objection did not possess an exclusively preliminary character.
This decision was taken by different majorities concerning the different objections. The three dissenting Judges, Weeramantry, Koroma and Ajibola (the latter one agreeing only with the decision on the second objection and the first part of the seventh objection), centre particularly on the decision on the first objection referring to the Court's jurisdiction. They all censured the reference made to the Right of Passage case which they regarded as an inappropriate interpretation of Article 36, paragraph 4, of the Statute.
Request for Interpretation of the Judgment of 11 June 1998
Judgment of 25 March 1999
On 28 October 1998 Nigeria requested the Court to interpret the Judgment delivered on 11 June 1998 concerning preliminary objections. Since the objections had been rejected by the Court and thus the question of Nigeria's responsibility "for certain incidents said to have occurred at various places at Bakassi and Lake Chad and along the length of the frontier between those two regions" was to be adjudged by the Court, Nigeria now contended that the Judgment of 11 June did not specify "which of these incidents were to be considered as part of the merits of the case". Nigeria also maintained that the Judgment was unclear as to whether "Cameroon was entitled at various times, after the submission of its Amended Application, to bring before the Court new incidents". The Judgment was, according to Nigeria, to be interpreted as meaning "that so far as concerns the international responsibility of Nigeria...the dispute before the Court does not include any alleged incidents other than (at most) those specified in the Application ... and Additional Application".
The first question was whether a request for the interpretation of a judgment concerning preliminary objections was possible at all. The Court found that such a request was possible under Article 60 of the Statute because this article as well as Article 98 of the Rules of Court only refer to "judgments" without making any difference as to the type of the judgment. However, according to the second sentence of Article 60 the request for interpretation must relate to the operative part of the judgment and cannot concern the reasons except in so far as these are inseparable from the operative part. In the present case the request for interpretation concerned, according to the findings of the Court, several reasons of the Judgment which are inseparable from the operative part so that the conditions for jurisdiction of the Court to entertain the request for interpretation were met.
The Court then turned to the admissibility of the request which is of special interest because of the need to avoid impairing the finality, and delaying the implementation, of the Court's judgments. Given that Article 60 is not concerned with questions of appeal, the aim of a request for interpretation has strictly to centre upon the interpretation and clarification of the meaning of what the Court already has decided with binding force. In the present case the concern of Nigeria related to the requirements which an application must meet according to Article 38 of the Statute. This question was the subject-matter of the sixth preliminary objection and the Court had already decided in its Judgment of 11 June that the limit of the freedom to present additional facts and legal considerations is that there must not be a transformation of the dispute brought before the Court. In the present case the Court had stated in its Judgment of 11 June that the introduction of additional incidents by Cameroon had not transformed the dispute and had thus not made a distinction between "incidents" and "facts", a finding which was not shared by the dissenting judges Weeramantry, Koroma and ad hoc judge Ajibola. According to the Court, this question had therefore already been dealt with and rejected in that Judgment and constituted thus res iudicata.
By its second and third submission Nigeria had requested the Court to interpret its Judgment in the sense that Cameroon could not introduce further facts and that the question whether the facts alleged by Cameroon are established or not related only to those facts stated in the Application and Additional Application. In the view of the Court, these submissions, however, endeavour to remove from the Court's consideration elements of law and fact which the Court had, in its Judgment of 11 June, already authorized Cameroon to present, or which Cameroon has not yet put forward. Therefore, the Court found that it was not able to entertain these submissions; the request for interpretation being consequently found to be inadmissible.
Finally, the Court had to decide on the question of costs, because Cameroon had asked the Court to charge Nigeria with the costs caused by the request for interpretation. With a view to the general rule in Article 64 of the Statute which confirms the basic principle regarding the question of costs in contentious proceedings before international tribunals, namely that each party shall bear its own costs, the Court decided that there was no reason in the present case to depart from this rule.
Order of 30 June 1999
In its counter-memorial filed with the Court in May 1999, Nigeria had submitted counter-claims contending that Cameroon had cited, in its written pleadings, a variety of incidents along the border and had brought in issue the international responsibility of Nigeria. Nigeria now pointed out that "there are [however] many cases in which incursions are occurring along the border from the Cameroon side and for which Cameroon is internationally responsible". Nigeria accordingly asked the Court to declare the responsibility of Cameroon with regard to those incursions as well as its obligation for compensation. The Court declared the counter-claims admissible which, consequently, will be dealt with simultaneously with the claims of Cameroon in the merits phase.
Under Article 80, para. 1 of the Rules of Court a counter-claim may be presented when it is directly connected with the subject-matter of the claim and when it comes within the jurisdiction of the Court. In the present case the counter-claims rested on facts of the same nature as the corresponding claims of Cameroon and were therefore directly connected to the claims of Cameroon. Moreover, the claims of both States "pursue the same legal aim, namely the establishment of legal responsibility and the determination of the reparation due on this account". For these reasons the counter-claims were declared admissible.
Intervention by Equatorial Guinea
Order of 21 October 1999
On 30 June 1999 Equatorial Guinea filed an application for permission to intervene in the case between Cameroon and Nigeria pursuant to Art. 62 of the Statute. The object of its intervention was "to protect [its] legal rights in the Gulf of Guinea by all legal means" and "to inform the Court of Equatorial Guinea's legal rights and interests so that these may remain unaffected as the Court proceeds to address the question of the maritime boundary between Cameroon and Nigeria". Equatorial Guinea underlined that its intervention only concerned the aspects of the maritime boundary and furthermore that it did not seek a determination of its own maritime boundaries with the those of Cameroon or Nigeria because these should be determined by negotiation. It only sought assurance that the boundary to be determined by the Court would not cross over the median line with Equatorial Guinea.
While Cameroon informed the Court that it had no objection in principle to the intervention, Nigeria left it to the Court to judge on the permission to intervene. The Court found that Equatorial Guinea had sufficiently established that it had an interest of a legal nature which could be affected by the judgment and that the object pursued by Equatorial Guinea, namely to inform the Court of its legal rights which are at issue in the dispute, was a valid object under the rules governing intervention. Furthermore, the Court pointed out that, as had been stated by the Chamber of the Court in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application by Nicaragua for permission to intervene, Judgment of 13 September 1990, the purpose of an intervention under Art. 62 of the Statute does not require the existence of a valid link of jurisdiction between the intervener and the parties to the case and that therefore in the case at stake where no jurisdictional link existed between the parties and the would-be-intervener there was nothing to prevent the application by Equatorial Guinea from being granted. Therefore the Court unanimously decided that Equatorial Guinea was permitted to intervene to the extent set out in its Application.