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World Court Digest

II. Substantive International Law - Second Part
1.1. Acquisition and Loss
1.1.2.Legal or Historic Title

¤ Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002

[p. ] 65. The Court will now examine Nigeria’s argument based on historical consolidation of title.

The Court observes in this respect that in the Fisheries case (United Kingdom v. Norway) (I.C.J. Reports 1951, p. 130) it had referred to certain maritime delimitation decrees promulgated by Norway almost a century earlier which had been adopted and applied for decades without any opposition. These decrees were said by the Court to represent “a well-defined and uniform system ... which would reap the benefit of general toleration, the basis of an historical consolidation which would make it enforceable as against all States” (ibid., p. 137). The Court notes, however, that the notion of historical consolidation has never been used as a basis of title in other territorial disputes, whether in its own or in other case law.

Nigeria contends that the notion of historical consolidation has been developed by academic writers, and relies on that theory, associating it with the maxim quieta non movere.

The Court notes that the theory of historical consolidation is highly controversial and cannot replace the established modes of acquisition of title under international law, which take into account many other important variables of fact and law. It further observes that nothing in the Fisheries Judgment suggests that the “historical consolidation” referred to, in connection with the external boundaries of the territorial sea, allows land occupation to prevail over an established treaty title. Moreover, the facts and circumstances put forward by Nigeria with respect to the Lake Chad villages concern a period of some 20 years, which is in any event far too short, even according to the theory relied on by it. Nigeria’s arguments on this point cannot therefore be upheld.

[pp. ] 214. ... In 1970 Cameroon and Nigeria decided to carry out a total delimitation and demarcation of their boundaries, starting from the sea. Under the terms of Article 2 of the Yaoundé I Declaration of 14 August 1970 and the agreement reached in the Yaoundé II Declaration of 4 April 1971 with its signed appended chart, it was agreed to fix the boundary in the Akwayafe estuary from point 1 to point 12 (see paragraph 38 above). Then, by declaration signed at Maroua on 1 June 1975, the two Heads of State “agreed to extend the delineation of the maritime boundary between the countries from Point 12 to Point G on the Admiralty Chart No. 3433 annexed to this Declaration” and precisely defined the boundary by reference to maritime co-ordinates (see paragraph 38 above). The Court finds that it is clear from each one of these elements that the Parties took it as a given that Bakassi belonged to Cameroon. Nigeria, drawing on the full weight of its experts as well as its most senior political figures, understood Bakassi to be under Cameroon sovereignty.

This remains the case quite regardless of the need to recalculate the co-ordinates of point B through an Exchange of Letters of 12 June and 17 July 1975 between the Heads of State concerned; and quite regardless whether the Maroua Declaration constituted an international agreement by which Nigeria was bound. The Court addresses these aspects at paragraphs 262 to 268 below.

Accordingly, the Court finds that at that time Nigeria accepted that it was bound by Articles XVIII to XXII of the Anglo-German Agreement of 11 March 1913, and that it recognized Cameroonian sovereignty over the Bakassi Peninsula.

215. In the view of the Court, this common understanding of the Parties is also reflected by the geographic pattern of the oil concessions granted by the two Parties up to 1991. While no precise offshore delimitation lines were adhered to in the grants made, their underlying assumption was that Cameroon had the right to the resources in those waters that depended on the land boundary in Bakassi as fixed in the Anglo-German Agreement of 11 March 1913. It is true, as Nigeria insists, that oil licensing “is certainly not a cession of territory”. The Court finds, however, that the geographic pattern of the licensing is consistent with the understanding of the Parties, evidenced elsewhere, as to pre-existing Cameroon title in Bakassi. Nor can this striking consistency (save for a very few exceptions) be explained by the contention that the Parties simply chose to deal with matters of oil exploitation in a manner wholly unrelated to territorial title.

216. In assessing whether Nigeria, as an independent State, acknowledged the applicability of the provisions of the Anglo-German Agreement of 11 March 1913 relating to Bakassi, the Court has also taken account of certain formal requests up until the 1980s submitted by the Nigerian Embassy in Yaoundé, or by the Nigerian consular authorities, before going to visit their nationals residing in Bakassi. This Nigerian acknowledgment of Cameroon sovereignty is in no way dependent upon proof that any particular official visit did in fact take place.

217. For all of these reasons the Court finds that the Anglo-German Agreement of 11 March 1913 was valid and applicable in its entirety. Accordingly, the Court has no need to address the arguments advanced by Cameroon and Nigeria as to the severability of treaty provisions, whether generally or as regards boundary treaties.

[p. ] 220. The Court first recalls its finding above regarding the claim to an ancient title to Bakassi derived from the Kings and Chiefs of Old Calabar. It follows therefrom that at the time of Nigeria’s accession to independence there existed no Nigerian title capable of being confirmed subsequently by “long occupation” (see paragraph 212 above). On the contrary, on the date of its independence Cameroon succeeded to title over Bakassi as established by the Anglo-German Agreement of 11 March 1913 (see paragraphs 213-214 above).

Historical consolidation was also invoked in connection with the first of Nigeria’s further claimed bases of title, namely peaceful possession in the absence of protest. The Court notes that it has already addressed these aspects of the theory of historical consolidation in paragraphs 62 to 70 above. The Court thus finds that invocation of historical consolidation cannot in any event vest title to Bakassi in Nigeria, where its “occupation” of the peninsula is adverse to Cameroon’s prior treaty title and where, moreover, the possession has been for a limited period.

[p. D.O. Ajibola] 146. The issue of title looms very large in this case as both Parties claim one form of title or the other. Reference has been made to it with different descriptions, i.e., legal title, original title, conventional title and historical title. In its presentation Cameroon claims sovereignty to the Bakassi Peninsula, alleging that its right to sovereignty with regard to the territory is its legal title derived, inter alia, from the Agreement of 11 March 1913 between Great Britain and Germany. On its part, Nigeria claims to hold original or historical title, partly evidenced by the Treaty of 10 September 1884 between the Kings and Chiefs of Old Calabar and Great Britain. The question here is that of the meaning of title in the context of this case and in international law. Cameroon tries to persuade the Court to hold that the only meaning attributable to the word is a conventional or legal title. The Court agrees with this. It appears to me that “title” bears a broader meaning than that and ought to be interpreted not necessarily or solely as documentary title but as the rights that a party holds in relation to a territory. This, to my mind, includes not only legal title but also possessory title.


149. In effect, it appears that the term “title” or even “legal title” should be given its broad and liberal meaning to include not only the strict documentary evidence, but also other evidence that could establish the legal rights of the Parties.

150. The Court, whilst giving Judgment in favour of Cameroon, based on its so-called legal title, dismisses the claim of Nigeria based on effectivités as effectivités contra legem, despite the long occupation and administration of the territory by Nigeria. In so deciding, the Court bases its decision on its jurisprudence in the Frontier Dispute (Burkina Faso/Republic of Mali) case.


153. There is no doubt that according to paragraph 63 preference ought to be given to the “holder of the title”. But with due deference, this does not mean that the holder of the title is absolutely entitled to sovereignty over the territory. All it indicates is that it should have preference, but this preference is not absolute. It leaves an equally legal right which the Court must grant to the party with effectivités. As explained in the final part of the above paragraph, “[i]n the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration”. That is the consideration that the Court must invariably give to effectivités in this regard. On a careful examination of the situation in the Bakassi Peninsula, the Court cannot rely on this authority to decide that the claim of a title-holder is exclusive and absolute. The Court must take cognizance of the fact that Nigerians have settled in Bakassi from time immemorial, that they owe allegiance to their Kings and Chiefs, and that they have settled administration and other civil activities as Nigerians there.

[p. D.O. Koroma] 8. I am also unable to accept that the categories of legal title to territory are restricted to what the Court described as the “established” modes, in its response to the contention that the principle of historical consolidation was a valid basis for territorial title, that is to say that proven long use, coupled with a complex of interests and relations, as in the present case, can have the effect of attaching a territory to a given State. In my opinion, founded on the jurisprudence of the Court (Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 139; Minquiers and Ecrehos (United Kingdom/France), Judgment, I.C.J. Reports 1953, p. 57; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 565, para. 345), historical consolidation, if supported by the requisite evidence, can be a sound and valid means of establishing territorial title in international law. When, therefore, such evidence is presented to the Court, as in this case, it does not seem legally justified to reject such evidence because it is categorized under a particular rubric. Rather than being preoccupied with the “label” of the evidence, the Court’s essential judicial function should be to assess and interpret the evidence before it objectively, so as to determine whether or not such evidence is sufficient to establish title to the territory in question.

[pp. D.O. Koroma] 26. In my view, the categories of legal title to territory cannot be regarded as finite. The jurisprudence of the Court has never spoken of “modes of acquisition”, which is a creation of doctrine. Just as the Court has recognized prescriptive rights to territory, so there is a basis for historical consolidation as a means of establishing a territorial claim. Nor can the concept of historical consolidation as a mode of territorial title be regarded as “over-generalized” and alien to jurisprudence. Both municipal and international law including the Court’s jurisprudence, recognize a situation of continuous and peaceful display of authority - proven usage - combined with a complex of interests in and relations to a territory, which, when generally known and accepted, expressly or tacitly, could constitute title based on historical consolidation. The important variables” of the so-called established modes of acquisition, which the Court did not define, are not absent in historical consolidation. If anything, they are even more prevalent - the complex of interests and relations being continuous and extending over many years plus acquiescence. Historical consolidation also caters for a situation where there has been a clear loss or absence of title through abandonment or inactivity on the one side, and an effective exercise of jurisdiction and control, continuously maintained, on the other (see Fitzmaurice, “General Principles of International Law”, Receuil des Cours, 1957, II, p. 148).

27. Failure of a State to react to a claim may, under certain conditions, not amount to acquiescence, though in most cases it will. In the Minquiers and Ecrehos case, France pleaded that it was impossible to keep under surveillance the activities of the United Kingdom with respect to the islets. Responding to this argument, Judge Carneiro replied that France was obliged to keep the disputed territory under surveillance and failure to exercise such surveillance and ignorance of what was going on on the islets indicate that France was not exercising sovereignty in the area (Judgment, I.C.J. Reports 1953, p. 106). In the Anglo-Norwegian Fisheries case, the Court held that Great Britain, being a maritime Power traditionally concerned with the law of the sea, with an interest in the fisheries of the North Sea could not have been ignorant of Norwegian practice and could not rely on an absence of protest, relevant in proving historic title (Judgment, I.C.J. Reports 1951, p. 139). Thus a passive course of conduct involving failure to protest may be taken into account in determining acquiescence in a territorial dispute. If the circumstances are such that some reaction within a reasonable period is called for on the part of a State, the latter, if it fails to react, must be said to have acquiesced. “Qui tacet consentire videtur si loqui debuisset ac potuisset.”

28. Regarding the length of time required to prove title on the basis of historical consolidation, every material situation calls for its own solution, based on the balancing of competing claims and depending on the area. Title may be proved even without reference to the period of time during which sovereignty had coalesced over the territory in dispute. In paragraph 65 of the Judgment, the Court stated that “the facts and circumstances put forward by Nigeria . . . concern a period of some 20 years, which is in any event far too short, even according to the theory relied on by it”. While proven long usage is an important element to consolidate title on a historical basis, however, and depending on the area, that period may sometimes be shorter. What is required is an assessment of all the elements to determine whether the facts presented establish the claim.

29. With reference to the matter at hand, the evidence of original title on which Nigeria bases its claim to Bakassi can be found in the administration of Bakassi on the part of the Kings and Chiefs of Old Calabar before and after the conclusion of the 1884 Treaty with Great Britain, the exercising of authority by traditional rulers, the Efik and Efiat toponymy of the territory, its ethnic affiliation with Nigeria but not with Cameroon, the long-established settlement of Nigerians in the territory and the manifestation of sovereign acts, such as tax collection, census-taking, the provision of education and public health services. The acquiescence of Cameroon in this long-established Nigerian administration of the territory, the permanent population, the significant affiliations of a Nigerian character, do substantiate a claim based on historical consolidation and which in turn militates in favour of territorial title and stability. The claim to territorial title to Bakassi and to the Nigerian settlements around Lake Chad was thus adequately substantiated and there is no legal justification to cast doubt on its legal basis and integrity.