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| III. | The International Court of Justice |
| 1. | FUNDAMENTAL PRINCIPLES |
| 1.4. | Political Questions/ Determination of the Existence of a Dispute |
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Land and Maritime Boundary
between Cameroon and Nigeria,
Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 275
[pp. 313-317] 84. In its fifth preliminary objection Nigeria alleges that 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, subject, within Lake Chad, to the question of the title over Darak and adjacent islands, and without prejudice to the title over the Bakassi Peninsula.
85. In the course of the oral proceedings, it became clear that in addition to Darak and Bakassi, there are competing claims of Nigeria and Cameroon in respect of the village of Tipsan, which each Party claims to be on its side of the boundary. Also, in the course of the oral proceedings, a question was asked of the Parties by a Member of the Court as to whether Nigerias assertion that there is no dispute as regards the land boundary between the two States (subject to the existing problems in the Bakassi Peninsula and the Darak region) signifies,
"that, these two sectors apart, there is agreement between Nigeria and Cameroon on the geographical co-ordinates of this boundary as they result from the texts relied on by Cameroon in its Application and its Memorial".
The reply given to this question by Nigeria will be examined below (paragraph 91).
86. For Cameroon its existing boundary with Nigeria was precisely delimited by the former colonial powers and by decisions of the League of Nations and acts of the United Nations.
These delimitations were confirmed or completed by agreements made directly between Cameroon and Nigeria after their independence. Cameroon requests that the Court "specify definitively the frontier between Cameroon and Nigeria from Lake Chad to the sea" (Additional Application, para. 17 (f)) along a line the co-ordinates of which are given in Cameroon's Memorial.
The fact that Nigeria claims title to the Bakassi Peninsula and Darak, and adjacent islands, means, in the view of Cameroon, that Nigeria contests the validity of these legal instruments and thus calls into question the entire boundary which is based on them. That, in the view of Cameroon, is confirmed by the occurrence, along the boundary, of numerous incidents and incursions. Nigeria's claims to Bakassi as well as its position regarding the Maroua Declaration also throw into doubt the basis of the maritime boundary between the two countries. In Cameroon's view, and contrary to what Nigeria asserts, a dispute has arisen between the two States concerning the whole of the boundary.
87. The Court recalls that,
"in the sense accepted in its jurisprudence and that of its predecessor, a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between parties (see Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11; Northern Carneroons, Judgment, I.C.J Reports 1963, p. 27; and Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, p. 27, para. 35)" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, pp. 99-100, para. 22) ;
and that,
"[i]n order to establish the existence of a dispute, 'It must be shown that the claim of one party is positively opposed by the other' (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328) ; and further, `Whether there exists an international dispute is a matter for objective determination' (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74)" (I.C.J Reports 1995, p. 100).
On the basis of these criteria, there can be no doubt about the existence of disputes with respect to Darak and adjacent islands, Tipsan, as well as the Peninsula of Bakassi. This latter dispute, as indicated by Cameroon, might have a bearing on the maritime boundary between the two Parties.
88. All of these disputes concern the boundary between Cameroon and Nigeria. However, given the great length of that boundary, which runs over more than 1,600 km from Lake Chad to the sea, it cannot be said that these disputes in themselves concern so large a portion of the boundary that they would necessarily constitute a dispute concerning the whole of the boundary.
89. Further, the Court notes that, with regard to the whole of the boundary, there is no explicit challenge from Nigeria. However, a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party. In this respect the Court does not find persuasive the argument of Cameroon that the challenge by Nigeria to the validity of the existing titles to Bakassi, Darak and Tipsan, necessarily calls into question the validity as such of the instruments on which the course of the entire boundary from the tripoint in Lake Chad to the sea is based, and therefore proves the existence of a dispute concerning the whole of the boundary.
90. The occurrence of boundary incidents certainly has to be taken into account in this context. However, not every boundary incident implies a challenge to the boundary. Also, certain of the incidents referred to by Cameroon took place in areas which are difficult to reach and where the boundary demarcation may have been absent or imprecise. And not every incursion or incident alleged by Cameroon is necessarily attributable to persons for whose behaviour Nigeria's responsibility might be engaged. Even taken together with the existing boundary disputes, the incidents and incursions reported by Cameroon do not establish by themselves the existence of a dispute concerning all of the boundary between Cameroon and Nigeria.
91. However, the Court notes that Nigeria has constantly been reserved in the manner in which it has presented its own position on the matter. Although Nigeria knew about Cameroon's preoccupation and concerns, it has repeated, and has not gone beyond, the statement that there is no dispute concerning "boundary delimitation as such". Nigeria has shown the same caution in replying to the question asked by a Member of the Court in the oral proceedings (see paragraph 85 above). This question was whether there is agreement between the Parties on the geographical co-ordinates of the boundary as claimed by Cameroon on the basis of the texts it relies upon. The reply given by Nigeria reads as follows:
"The land boundary between Nigeria and Cameroon is not described by reference to geographical co-ordinates. Rather, the relevant instruments (all of which pre-date the independence of Nigeria and Cameroon) and well-established practice, both before and after independence, fix the boundary by reference to physical features such as streams, rivers, mountains and roads, as was common in those days. Since independence, the two States have not concluded any bilateral agreement expressly confirming or otherwise describing the pre-independence boundary by reference to geographical co-ordinates. Nevertheless, the course of the boundary, which was well established before independence and related United Nations procedures, has continued to be accepted in practice since then by Nigeria and Cameroon."
92. The Court notes that, in this reply, Nigeria does not indicate whether or not it agrees with Cameroon on the course of the boundary or on its legal basis, though clearly it does differ with Cameroon about Darak and adjacent islands, Tipsan and Bakassi. Nigeria states that the existing land boundary is not described by reference to geographical co-ordinates but by reference to physical features. As to the legal basis on which the boundary rests, Nigeria refers to "relevant instruments" without specifying which these instruments are apart from saying that they pre-date independence and that, since independence, no bilateral agreements "expressly confirming or otherwise describing the pre-independence boundary by reference to geographical co-ordinates" have been concluded between the Parties. That wording seems to suggest that the existing instruments may require confirmation. Moreover, Nigeria refers to "well-established practice both before and after independence" as one of the legal bases of the boundary whose course, it states, "has continued to be accepted in practice" ; however, it does not indicate what that practice is.
93. The Court is seised with the Submission of Cameroon which aims at a definitive determination of its boundary with Nigeria from Lake Chad to the sea (see paragraph 86 above). Nigeria maintains that there is no dispute concerning the delimitation of that boundary as such throughout its whole length from the tripoint in Lake Chad to the sea (see paragraph 84 above) and that Cameroon's request definitively to determine that boundary is not admissible in the absence of such a dispute. However, Nigeria has not indicated its agreement with Cameroon on the course of that boundary or on its legal basis (see paragraph 92 above) and it has not informed the Court of the position which it will take in the future on Cameroon's claims. Nigeria is entitled not to advance arguments that it considers are for the merits at the present stage of the proceedings ; in the circumstances however, the Court finds itself in a situation in which it cannot decline to examine the submission of Cameroon on the ground that there is no dispute between the two States. Because of Nigeria's position, the exact scope of this dispute cannot be determined at present; a dispute nevertheless exists between the two Parties, at least as regards the legal bases of the boundary. It is for the Court to pass upon this dispute.
[p. 322] 110. In addition to what has been put forward by the Parties, the question could arise whether, beyond point G, the dispute between the Parties has been defined with sufficient precision for the Court to be validly seised of it. The Court observes not only that the Parties have not raised this point, but Cameroon and Nigeria entered into negotiations with a view to determining the whole of the maritime boundary. It was during these negotiations that the Maroua Declaration relating to the course of the maritime boundary up to point G was drawn up. This declaration was subsequently held to be binding by Cameroon, but not by Nigeria. The Parties have not been able to agree on the continuation of the negotiations beyond point G, as Cameroon wishes. The result is that there is a dispute an this subject between the Parties which, ultimately and bearing in mind the circumstances of the case, is precise enough for it to be brought before the Court.
[p. 338 S.O. Oda] 25. ... The simple fact that one State wishes to specify the frontier between it and a neighbouring State does not constitute a "legal dispute" between those States. Cameroon's unilateral request for a boundary line to be indicated between its territory and Nigerias from Lake Chad to the sea cannot be regarded as constituting a "legal dispute", in terms of Article 36 (2) of the Statute, which may be presented unilaterally to the International Court of Justice for its adjudication.
26. I do not deny that the International Court of Justice is competent to undertake the indication of a boundary line if States refer such a matter to it under Article 36 (1) of the Statute. If Cameroon had wished, with the concurrence of Nigeria, to revise its boundary which it claimed as legitimate on the basis of legal or historical title, it could have done so by means of negotiations with the latter. If such negotiations failed, the parties would then certainly be free to seek a decision of the International Court of Justice by agreement. However, this case does not come under that category.
[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. 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 an 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 on a maritime boundary, seems to me the real issue.
[p. 410 D.O. Ajibola] Another aspect of Nigeria's fifth preliminary objection concerns the legal and geographical scope of the boundary dispute. It appears that, in the view of the Court, Nigeria has not definitively made its position clear regarding the course of the boundary, or at least does not agree with the claim of Cameroon. Equally, the Court cannot ascertain from the answer given by Nigeria (based on the question put to it as already referred to) what is its own view of the legal scope of the dispute either now or in the future. Since Nigeria has not filed its Counter-Memorial, it is not bound to disclose its line of defence at this stage of the procedure. Hence, as concluded by the Court, "the exact scope of this dispute cannot be determined at present" (Judgment, para. 93). Yet the Court still concluded that "a dispute nevertheless exists between the two Parties, at least as regards the legal bases of the boundary" (ibid.). In my view, these are contradictory statements which I do not agree with. In fact, Cameroon's claim in its Application ought to have been restricted to the disputed boundary locations and area of incidents, which amount to less than 5 per cent of the entire boundary.
