Bakassi in International law: Can Nigeria Disobey the ICJ Verdict?

Ahead of the October 10, 2012 statute of limitation deadline for Nigeria to ratify the 2002 International Court of Justice (ICJ) verdict that ceded Bakassi to Cameroon, the drums of war are rumbling. A group calling itself the Bakassi Self-determination Front is bracing for an armed insurgency; in which event, Cameroon, Nigeria, the UN and the international community may be drawn into another crisis.

                                    By Ekinneh Agbaw-Ebai

A group of eminent Nigerians, including a former Minister for Information, Dr. Walter Ofonagoro, have asserted that former Head of State, Gen. Yakubu Gowon, and erstwhile President Olusegun Obasanjo owed Nigeria an explanation over the 1970-1975 treaty ceding Bakassi to Cameroon and the Greentree Accord (GTA), which finally transferred the territory following the ICJ ruling on the dispute.

At the 11th Brainstorming Session of the Nigerian Institute of International Affairs (NIIA) on Monday, August 6, 2012, the panelists argued against ratification of the ICJ judgment come October 10, saying it would foreclose any attempt by Nigeria to appeal the verdict. Nigerian media reports quoted Ofonagoro saying it was illegal for Gowon to have ceded Bakassi without due regards to Nigerian law. He also queried why the Bakassi people were not availed the opportunity of a plebiscite to decide their fate in line with starre decisis. He regretted that Obasanjo, who publicly criticized Gowon and the defunct Supreme Military Council for ceding Bakassi to Cameroon, went ahead to formally sign off the territory after the ICJ’s ruling without consulting the National Assembly.

Bakassi has been the subject of violent disputes between Cameroon and Nigeria for decades until the 2002 ICJ verdict; followed by the 2006 GTA – signed under the auspices of former UN Secretary-General, Kofi Annan, wherein Nigeria recognized Cameroonian sovereignty over the Peninsula. However, on Nov. 22, 2007, the Nigerian Senate rejected the transfer, saying the GTA was contrary to Section 12(1) of the 1999 Constitution. Regardless, Bakassi was formally transferred to Cameroon on August 14, 2008.

On Wednesday, July 19, 2012, the Nigerian House of Representatives passed an emergency motion urging President Goodluck Jonathan to review the 2002 ICJ ruling, accusing the former Justice Minister, Chief Michael Aondoakaa, of acting ultra vires by ignoring the July 31, 2008 injunction by Justice Mohammed Umar of the Abuja High Court; restraining the Nigerian Government from handing over Bakassi, pending a lawsuit filed by Bakassi indigenes. Amid the rising crescendo by Nigeria to recover Bakassi, a faceless group; the Bakassi Self-determination Front is threatening an armed insurgency, which risks plunging the region into war. This cannot be allowed to happen!

                                    The Green Tree Agreement

Nigeria’s garrulous banter against the GTA notwithstanding, it is not in dispute that former President Obasanjo had the powers just like the President of any other country to enter into a treaty that binds Nigeria under Public International Law. The GTA, therefore, remains a valid treaty between Nigeria and Cameroon; and a treaty in force is binding upon the parties and must be performed by them in good faith in accordance with the 1969 Vienna Convention on the Law of Treaties.

In the GTA, Nigeria recognized Cameroon’s sovereignty over Bakassi in accordance with the ICJ verdict and committed itself to the land and maritime boundary as delineated by the ICJ. The ICJ ruling directed the UN Secretary-General to set up a machinery that will supervise the peaceful implementation of the court's judgment and that gave rise to the GTA. So it validly can be said that the GTA, drawn up under UN auspices and witnessed by member-states of the Security Council was in compliance or enforcement of the ICJ verdict.

The Permanent Court of Arbitration, the Permanent Court of International Justice (PCIJ), and the ICJ have produced a consistent jurisprudence. (See German Interests in Polish Upper Silesia (1926), PCIJ, Ser. A, no.7, p.19; Jurisdiction of the Courts of Danzig) (1928), PCIJ, Ser.B, no.15, pp. 26, 27). In the Free Zones Case (1929), PCIJ, Ser. A, no.24, p.12, the court observed: "...It is certain that France cannot rely on her own legislation to limit the scope of her international obligations..." And the advisory opinion in the Greco-Bulgarian Communities case (1930), PCIJ, Ser.B, no.17, p.23 states inter alia: "It is a generally accepted principle of international law that in the relations between powers who are contracting parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty".

If a decision of a domestic court or a legislative measure frustrates any international obligation, such decision or measure constitutes evidence of a breach of international law. This principle was applied in the case of Polish Nationals in Danzig (1931), PCIJ, Ser. A/B, no.44, p.24); when the Permanent Court said: "...a state cannot adduce as against another state its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force...” (Also see Exchange of Greek and Turkish Populations (1925), PCIJ, Ser.B, no.10, p.20). Domestic courts have the power to void local legislations if they are contrary to international law but they cannot void a decision of the ICJ as given per incuriam simply because it breaches local legislation. This is the opinion of Judge Lauterpacht in the Norwegian Loan Case (ICJ Reports (1957), pp. 40-41).

The law is well settled that a state cannot plead provisions of its own law or deficiencies in that law in answer to a claim against it for an alleged breach of its obligations under international law. This principle is enshrined in Article 27 of the 1969 Vienna Convention on the Law of Treaties. The acts of the Nigerian legislature and other sources of internal decision-making that could facilitate evasion of its obligations cannot be seen as acts of some third party for which Nigeria is not responsible. The Nigerian Legislature and Judiciary are part and parcel of the Federal Republic of Nigeria and, therefore, cannot review the ICJ judgment, just as the Cameroonian Legislature or Judiciary cannot do so, because international border delineation is beyond the jurisdiction of domestic courts and National Parliaments.

In accordance with the ICJ verdict, Cameroon acquired title over Bakassi. If she is now confronted with a prohibitive ruling of a Nigerian domestic court, Cameroon is bound to plead and plead successfully too, that, it has obtained adequate remedies before the ICJ, and so, a re-visit of the issue is unacceptable. The Abuja High Court is a domestic organ, incapable of compelling the Nigerian government to renege on her international obligation to transfer the territory known as Bakassi to the Cameroonian government.

                                      Conclusion

The substratum of the matter is compliance; not only with the ICJ's ruling but also the GTA. Under Art. 94 Para. 2 of the UN Charter, if any state or party to a case before the ICJ fails to perform the obligations incumbent upon it under a judgment delivered by the court, the UN Security Council may decide upon measures to be taken to give effect to the judgment; including economic sanctions, trade restrictions or even military action. Nigeria has the responsibility to honor its commitment to the international community, promote international peace and co-operation and advance the course of African brotherhood and good neighborliness. Also, the consequences of back-peddling on the ICJ verdict go beyond denting Nigeria’s reputation and standing in the international community, particularly bearing in mind her desire to become a member of the UN Security Council. The world is watching!

The author of this article has made relevant references to the Viena Convention on the Law of Treaties, which was signed on May 23, 1969, to support Cameroon's position on the acquisition of Bakassi from Nigeria. Click on the URL below for a better understanding of this posting.
 http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

Ekinneh Agbaw-Ebai is a public intellectual and graduate of Harvard University John F. Kennedy School of Government where he was Managing Editor of the Harvard Journal of African-American Public Policy. A former Research Analyst for Central Africa with Freedom House, he is a consultant and lives in Boston, Massachusetts, USA. Talk back at ekinneh@yahoo.com