NIGERIA WILL COMPLY WITH THE ICJ RULING OF OCTOBER 10, 2002: THE SYMBIOTIC RELATIONSHIP BETWEEN CAMEROON AND NIGERIA TRANSCENDS BAKASSI*

On October 10, 2002, the International Court of Justice (ICJ) granted the ownership of Bakassi Peninsula to Cameroon. Following the ruling, both sides, Cameroon and Nigeria, have taken positive steps, most notably of which, is the Green Tree Agreement [GTA] aimed at the implementation of the ICJ Judgment. However, in the past nine months, there have been acts of violence against Cameroon officials in the area , court action by some in Nigeria to halt the August 14, 2008 hand over , Nigeria’s Senate declaration that the GTA is unconstitutional and the pronouncement that the Nigerian military was not consulted. Not surprisingly, these series of events have raised concerns and anxiety in the respective territories of both nations.

It would be simplistic to dismiss these series of events as meant for internal consumption in Nigerian. However, the consequences of some of these acts, whether intended or not, have gravely affected both Nigerians and

*Simon W. Tache, Juris Doctorate (JD), M.A. Marine Affairs Policy, B.Sc. Marine Transport Management, and Author of various legal and Maritime related papers and Syndicated Author, http://atthecenter.spaces.live.com

Cameroonians. From an historic perspective, when the Northern Cameroons opted for integration with the Federation of Nigeria on June 1, 1961, as a separate province of the Northern Region of Nigeria, families from both sides of the border were impacted, during the Biafra war from May 30, 1967 until January 15, 1970, families on both sides of the common boundary were also impacted. Today, the same can be said of the series of events involving Bakassi. Fortunately, the one constant has been the astuteness and appreciation of a fundamental and controlling fact by the leadership of both nations. The symbiotic relationship between Cameroon and Nigeria transcends Bakassi and in the final analysis these series of events will not hinder the transfer of the administration of Bakassi to Cameroon on August 14, 2008.

The positions that the GTA is unconstitutional under the Nigerian Constitution; that the Nigerian military was not consulted prior to its ratification by former President Olusegun Obasanjo; or the application for a Nigerian court to void a judgment of the ICJ, are necessary and important expression of opinions in a democratic society. However, a casual examination, of the rationale for each of these positions, suggests a general confusion in these quarters about the scope and purpose of the Green Tree Agreement.

Application by anyone to a Nigerian court to void a judgment of the ICJ, while an expression of freedom of speech, begs of intellectual dishonesty given the well settled principle of jurisprudence that a lower court cannot review a decision of a higher court. In fact, the lower court in this case, a Nigerian High Court, is bound by the decision of the higher court, the ICJ, recognized as such by the sovereign. Similarly, the suggestion that “the former President, Chief Olusegun Obasanjo, did not consult the military before the cession of Bakassi Peninsula to Cameroon,” should somehow invalidate a Judgment of the ICJ is perplexing, irrespective of any security concerns.

Former President Obasanjo did not relinquish Bakassi or caused a cession of any territory under Nigerian sovereign jurisdiction to Cameroon. When he signed the GTA on June 12, 2006, Bakassi was already internationally recognized as within the sovereign jurisdiction of Cameroon. Indeed, the GTA provides; “Nigeria recognizes the sovereignty of Cameroon over the Bakassi Peninsula in accordance with the [sic] judgment of the International Court of Justice of 10 October 2002 in the matter of land and maritime boundary between Cameroon and Nigeria. Cameroon and Nigeria recognize the land and maritime boundary between the two countries as delineated by the Court and commit themselves to continuing the process of implementation already begun.” Consistent with the clear understanding of the parties, “No part of this [sic] GTA shall be interpreted as a renunciation by Cameroon of its sovereignty over any part of its territory.

Thus, the GTA does not convey any land to Cameroon, but was rather intended to be a guide for the implementation of the judgment of the International Court of Justice of October 10, 2002. Specifically, “This Agreement shall in no way be construed as an interpretation or modification of the judgment of the International Court of Justice of 10 October 2002, for which the Agreement only sets out the modalities of implementation [emphasis added]. The GTA is not a treaty permitting cession of Bakassi by Nigeria to Cameroon, but an embodiment of the modalities by which the administration of the peninsular by Nigeria would be transferred to Cameroon. The scope of the GTA is, therefore, analogous to an instructional mechanism for the consolidation of the de facto and de jure sovereignty of Cameroon over its own territory. In this regard, Nigeria had accepted the Court's compulsory jurisdiction by a declaration dated 14 August 1965, deposited with the Secretary-General of the United Nations on 3 September 1965. Similarly, Cameroon had also accepted the Court's compulsory jurisdiction by a declaration deposited with the Secretary-General on 3 March 1994. The Secretary-General transmitted copies of the Cameroon Declaration to the Parties to the Statute eleven-and-a-half months later. Thus, having accepted the ICJ compulsory jurisdiction, both parties are bound by the decision of the ICJ in this matter. Since the GTA is not a treaty permitting cession of Bakassi by Nigeria to Cameroon, but rather an embodiment of the modalities by which the administration of the peninsular by Nigeria would be transferred to Cameroon, the question arises whether the GTA must be ratified by the Nigerian National Assembly to be constitutional and thus binding on Nigeria. We have already noted that the leaders of both countries had previously committed themselves and their countries to honor and abide by the ruling of the ICJ before that Court ever rendered its judgment. In addition, both parties are bound by their voluntary acceptance of the compulsory jurisdiction of the ICJ. Also in the introduction Section of the GTA, the parties [sic] “reaffirmed their willingness to peacefully implement the judgment of the International Court of Justice” and then proceeded to recognize the existence of the sovereignty of Cameroon over the Bakassi Peninsular before the adoption of the GTA on June 12, 2006.

Proponents of the constitutional argument fail to recognize the clear distinction between treaty making and implementation. In the context of treaty making or ratification, a country such as Nigeria or Cameroon acquiesces to be bound by a treaty. The process invariably involves a transfer of a limited aspect or limitation of supreme national sovereignty to the supreme collective sovereignty. Thus, when Cameroon and Nigeria ratified the treaty on the ICJ compulsory jurisdiction, they obligated their countries to respect and honor the ICJ decision. Conversely, implementation of a treaty, sometimes referred to as domestication, may require legislative action when the performance of the obligations of the state entails alteration of existing domestic law. In light of the nature of the GTA as an implementation document, what then is the legal effect of non domestication of the agreement by Nigeria? The simple response is that non domestication of the GTA by the Nigerian National Assembly would not relieve Nigeria of its clearly defined obligations under the judgment of the ICJ of October 2002 and similarly under the Green Tree Agreement.

Nigeria, as a member of the United Nations and a party to the United Nations Charter and the Statute of the ICJ, is under the obligation “to comply with the decision of the International Court of Justice in any case to which it is a party.” In the event of non-compliance with the judgment of the ICJ by Nigeria, Cameroon may invoke the authority of the UN Security Council to impose appropriate sanctions. However, given the critical importance of the historic and symbiotic relationship between Cameroon and Nigeria and considering that non of the arguments advanced to support the rejection of the transfer of administrative authority from Nigeria to Cameroon withstands a modicum of scrutiny , we are convinced that Nigeria will stand by its official position and hand over the administrative authority over the Bakassi Peninsular to Cameroon on August 14, 2008 as scheduled.