Land and Maritime Boundary between Cameroon and Nigeria
Cameroon v. Nigeria: Equatorial Guinea intervening
Oct 10, 2002 | MAOI | Session 7: Invalidity of Treaties
Doctrine: The limitation of a Head of State's capacity to enter treaties is not
manifest in the sense of Article 46(2) and thus will not serve to invalidate a
treaty duly signed, unless at least properly publicized.
FACTUAL BACKGROUND
The territorial disputes between Cameroon and Nigeria began initially
during the late 19th and early 20th Century, rooted in the actions of the Great
Powers (pre-WW I, i.e. Great Britain, France, Germany) in partitioning Africa.
The issues further developed under the League of Nations System, then the
United Nations trusteeship, and the independence of both territories. This
history is reflected in a number of conventions, treaties, notes, maps, and
other documents.
In March 1994, Cameroon filed an application against Nigeria, requesting
the Court to resolve the question of sovereignty over the Bakassi Peninsula
and to resolve the dispute over the land and maritime boundaries between
the two states. During the time of filing, several named Nigerian villages,
along with Nigerian police and military presence, had been established on
the Bakassi Peninsula. Cameroon argues that it is the rightful sovereign over
the Bakassi Peninsula. In the course of the proceedings, the Court
determined that the dispute is actually a dispute regarding the
interpretation and application of particular instruments delimiting the
boundary between the two states.
To support its claims, Cameroon primary relies on the strength of several
bilateral treaties entered into by Germany, Great Britain and France which
were made at the time when both Cameroon and Nigeria were still under
European control. These instruments purportedly delimited the boundary
between the two states. Nigeria initially claimed that there has yet to be a
proper delimitation of the border due to the vagueness of these
instruments, but later on agreed on the applicability of all of the
instruments, with the exception of Articles XVIII to XXI of the Anglo-German
Agreement of 1913, which pertain primarily to the Bakassi Peninsula.
ANGLO-GERMAN AGREEMENT OF 1913
Cameroon argues that the aforesaid articles placed the Bakassi Peninsula on
the German side of the boundary. When Nigeria and Cameroon acceded to
independence, they succeeded to the boundary between its predecessor
States, following the principle of uti possidetis. Nigeria does not contest the
meaning and interpretation of these articles but insists that the terms
thereof were never put into effect and were invalid on multiple grounds.
Nigeria contends that sovereignty over the Bakassi Peninsula was originally
vested in the Kings and Chiefs of Old Calabar. It contends that the Treaty of
Protection signed in 1884 between Great Britain and the Kings and Chiefs
only conferred certain limited rights on Great Britain, but in no way transfer
sovereignty over their territories. It argues that the Kings and Chiefs rather
retained their international status and rights, including their power to enter
into relationships with other “international persons”. It concludes that
because Great Britain had no sovereignty over those territories in 1913, it
could not cede the same to a third party, rendering the subject articles
beyond the treaty making power of Great Britain, and thus not binding on
the Kings and Chiefs, under the principle of nemo dat quod non habet (a
person who does not own property cannot confer it to another).
In Cameroon’s view on the other hand, the Treaty of Protection established
a “colonial protectorate”, and that “in the practice of the period there was
little fundamental difference at an international level, in terms of territorial
acquisition between colonies and colonial protectorates”. Furthermore,
such differences are a matter of the national law of the colonial power,
rather than a matter of international law. It also argues that even if such
hypothesis was true, neither the Great Britain not Nigeria sought to claim
that the agreement was invalid on this ground. It lastly argues that the
Agreement forms and indivisible whole, whose parts cannot be severed, and
that “there is a strong presumption that treaties are accepted as valid must
be interpreted as a while and all their provisions respected and applied”.
HISTORICAL CONSOLIDATION
Nigeria also advances three bases of its title over Bakassi:
1. Long occupation by Nigeria and Nigerian nationals constituting a
historical consolidation of title and confirming the original title
 of the Kings and Chiefs of Old Calabar, which title vested in
Nigeria at the time of Independence in 1960;
2. Peaceful possession by Nigeria, acting as sovereign, and an
absence of protest by Cameroon; and
3. Manifestations of sovereignty by Nigeria together with the
acquiescence by Cameroon in Nigerian sovereignty over the
Bakassi Peninsula.
Nigeria argues that these constitute an independent and self-sufficient title
to Bakassi. Nigeria also presents evidence of various State activities in
Bakassi: that Nigerian authorities had collected tax as part of a consistent
pattern of activity, that Nigeria had established health centres for the
benefit of the communities, the use of Nigerian currency for both public and
comrnercial purposes and the use of Nigerian passports by residents of
Bakassi, among others.
Cameroon on the other hand argues that a legal treaty title cannot be
displaced by what in its view amount to no more than a number of alleged
effectivites (acts by a State relevant to a claim of title to territory by
occupation or prescription). In its view, this argument nothing more than
“the establishment of title by adverse possession, which has traditionally
been labelled as ‘acquisitive prescription’”. Cameroon also contends that, in
order to establish prescription, the acts of the State which does not hold
title must be carried out in a sovereign capacity, under a claim of right,
openly, peacefully, without protest or competing activity by the existing
sovereign, and for a sufficiently long time. If these criteria are applied to the
evidence adduced by Nigeria, this would eliminate the whole of Nigeria's list
of effectivités.
THE MAROUA DECLARATION (RELEVANT TO TOPIC)
The Court notes that, according to Cameroon, the maritime boundary
between Cameroon and Nigeria is divided into two sectors. The first, from
the mouth of the Akwayafe River to point G fixed by the Maroua Declaration
of 1 June 1975, is said to have been delimited by valid international
agreements between the Parties. In relation to this sector, Cameroon asks
the Court merely to confirm that delimitation, which it says that Nigeria is
now seeking to reopen. The delimitation proposed by Cameroon is rooted in
three instruments, namely the Anglo-German Agreement, the Maroua
Declaration, and the Yaounde II Declaration.
Nigeria for its part draws no distinction between the area up to point G and
the area beyond. It denies the existence of a maritime delimitation up to
that point and maintains that the whole maritime delimitation must be
undertaken de novo. Nigeria further contends that, even if Cameroon's
claim to Bakassi were valid, Cameroon's claim to a maritime boundary
should have taken into account the wells and other installations on each
side of the line established by the oil practice and should not change the
status quo in this respect. In relation to the Yaoundé II Declaration, Nigeria
contends that it was not a binding agreement, but simply represented the
record of a meeting which "formed part of an ongoing programme of
meetings relating to the maritime boundary", and that the matter "was
subject to further discussion at subsequent meetings". the Maroua
Declaration as lacking legal validity, since it "was not ratified by the Supreme
Military Council" after being signed by the Nigerian Head of State. It states
that under the Nigerian constitution in force at the relevant time - June
1975 - executive acts were in general to be carried out by the Supreme
Military Council or subject to its approval.
ISSUES
1. Are the instruments which delineated the borders between the two
states valid? YES.
They are valid as they have sufficiently delimited the boundary between the
two nations with sufficient specificity, and all that remains is for the parties
to carry on with demarcation.
2. Are the Articles XVIII to XXI of the Anglo-German Agreement of 1913
valid and binding among the parties? YES.
Contrary to Nigeria’s arguments, the Treaty of Protection did not indicate
the specific territories over which the Kings and Chiefs exercised their
powers. Furthermore, the nature of the treaty cannot be derived from its
designation as one of “protection”. In the view of the Court many factors
point to the 1884 Treaty signed with the Kings and Chiefs of Old Calabar as
not establishing an international protectorate. It was one of a multitude in a
region where the local Rulers were not regarded as States, and the same
was evident from Calabar’s absence from the official lists of British
Protectorates.
When Germany renounced its colonial possessions after the end of World
War I, Cameroon was divided between Great Britain and France. In 1922,
Great Britain accepted the mandate of the League of Nations which “lay
west of the line laid down in the Milner-Simon Declaration”. Bakassi was
necessarily comprised within the said mandate. After World War II, the
mandate was converted to a trusteeship. Thus, from 1922 to 1961, when
the trusteeship ended, Bakassi was comprised within British Cameroon. The
said boundary remained an international boundary.
Neither the League of Nations nor the United Nation considered the Kings
and Chiefs of Old Calabar as the sovereign of Bakassi. For that matter, the
evidence shows that Nigeria itself did not believe that upon its
independence it was going to acquire Bakassi from the Kings and Chiefs.
Nigeria raised no question regarding the extent of its territory and did not
contest the inclusion of Bakassi in the 1961 plebiscite of Southern
Cameroon, which was supervised by the UN. In official communications,
areas in Bakassi had been denominated by Nigeria as belonging to
Cameroon, even up to the 1970s, when both parties were engaging in
discussions as to their maritime borders. The Court finds that Nigeria had
recognized Cameroonian sovereignty over Bakassi, and thus the Anglo-
German Agreement was applicable in its entirety.
3. Has Nigeria obtained title to Bakassi through “historical
consolidation”? NO.
First, there has existed no Nigerian title capable of being confirmed by “long
occupation” as the title to Bakassi had been vested in Cameroon, as the
successor state of Germany and Great Britain, as established above.
With regard to purported possession as a sovereign or effectivites and the
supposed acquisence of Cameroon, the court notes that when there is a
conflict between title and effectivites, preference is given to title. In the
Frontier Dispute (Burkina Faso/Republic Of Mali), it is pointed out that in
this regard "a distinction must be drawn among several eventualities",
stating inter alia that:
"Where the act does not correspond to the law, where the territory
which is the subject of the dispute is effectively administered by a
State other than the one possessing the legal title, preference
should be given to the holder of the title. In the event that the
effectivity does not coexist with any legal title, it must invariably be
taken into consideration."
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.
Moreover, 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. The Court concludes that Nigeria's arguments
on this point cannot therefore be upheld.
4. (RELEVANT TO TOPIC) Are the Maroua Declaration and Yaounde II
Declaration, which fixed maritime delimitation of the state
boundaries, valid and binding upon Nigeria and Cameroon? YES
The Yaounde II Declaration was called into question on a number of
occasions by Nigeria subsequently to its signature therein. However, it is
unnecessary to determine the status of the Declaration in isolation, since
the line described therein is confirmed by the terms of the Maroua
Declaration.
The Maroua Declaration constitutes an international agreement concluded
between States; in written form and tracing a boundary; it is thus governed
by international law and constitutes a treaty in the sense of the Vienna
Convention on the Law of Treaties, of which both states are parties. The
Maroua Declaration was signed by the Nigerian Head of State at the time
but never ratified. Nonetheless, there are cases where a treaty enters into
force immediately upon signature, and such is the case with the Maroua
Declaration.
Article 46 (1) of the Vienna Convention provides that "[a] State may not
invoke the fact that its consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was
manifest and concerns a rule of its internal law of fundamental importance".
Article 46(2) provides that "[a] violation is manifest if it would be objectively
evident to any State conducting itself in the matter in accordance with
normal practice and in good faith".

The limitation of a Head of State's capacity in this respect is not manifest in

the sense of Article 46, paragraph 2, unless at least properly publicized. This
is particularly so because Heads of State belong to the group of persons
who, in accordance with Article 7, paragraph 2, of the Convention "in virtue
of their functions and without having to produce full powers" are
considered as representing their State. Thus, the Maroua Declaration is
binding upon Nigeria.

DISPOSITIVE

The Court…

… Decides that the boundary between the Republic of Cameroon and the
Federal Republic of Nigeria in the Lake Chad area is delimited by the
Thomson-Marchand Declaration of 1929-1930, as incorporated in the
Henderson-Fleuriau Exchange of Notes of 1931.

…. Decides that the Federal Republic of Nigeria is under an obligation

expeditiously and without condition to withdraw its administration and its
military and police forces from the territories which fall within the
sovereignty of the Republic of Cameroon pursuant to points I and III of this
operative paragraph.

…. Decides that the Republic of Cameroon is under an obligation

expeditiously and without condition to withdraw any administration or
military or police forces which may be present in the territories which fall
within the sovereignty of the Federal Republic of Nigeria pursuant to point II
of this operative paragraph. The Federal Republic of Nigeria has the same
obligation in respect of the territories which fall within the sovereignty of
the Republic of Cameroon pursuant to point II of this operative paragraph.