The Bakassi Dispute and the International Court of Justice: Continuing Challenges

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On the 10th of October 2002 the International Court of Justice delivered the Bakassi decision, which, amongst other things, excised the resource rich land and maritime territory of Bakassi from Nigeria and transferred its legal title to Cameroon. These two countries under the auspices of the United Nations established the mechanism of the Cameroon-Nigeria Mixed Commission to honour and implement their obligations under the ICJ decision. Over a decade after the ICJ decision this volume brings together academics and practitioners to assess the impact of this decision and the challenges and issues that have been raised in the course of its implementation. Hailed by some as a model of preventive diplomacy and a blueprint for the future, this timely assessment illuminates the difficulties in imposing such controversial decisions and considers whether this type of Mixed Commission is an adequate mechanism for implementing them. Cover Title Page Copyright Page Contents Notes on contributors Introduction Notes Chapter 1: Bakassi case: Challenges of case management of international litigation Introduction The background to the case Referral to the International Court of Justice Choice of counsel Interlocutory proceedings and the progress of the case before the Court The pleadings The atlas Political background The Nigerian team Sources of evidence The sovereignty disputes Effectivités The land boundary Maritime boundary Offshore Bakassi State responsibility claims The Court’s Judgment of 10 October 2002 and subsequent developments Impact of the case and subsequent jurisprudence Notes Chapter 2: Should Nigeria have sought revision of the Bakassi Decision by the International Court of Justice? Introduction Preliminary points about revision Requirements for revision Newly discovered facts must be of decisive character Absence of negligence in discovery of facts Assessing Nigeria’s case for revision Discovery of new facts Principles of equity Conclusion Notes Chapter 3: Resolution of international disputes through preventive diplomacy by the United Nations: Case study of the Cameroon v. Nigeria case Introduction United Nations and preventive diplomacy Case concerning the land and maritime boundary between Cameroon and Nigeria (Bakassi) Brief comments on the judgment Implementation of the judgment The anticipatory dispositions and summit Other implementation steps by the Secretary-Generaland the two Presidents The Greentree Agreement The Follow-up Committee and Observer Team The Cameroon–Nigeria Mixed Commission Other UN agencies involved in the implementation of the judgment The role of the Witness States Conclusion Notes Chapter 4: The ICJ decision on the Cameroon–Nigeria Bakassi dispute and issues arising: A Cameroonian perspective Introduction Background Reaction to the ICJ Judgment Implementation of the Judgment and related issues Mandate and role of the Cameroon–Nigeria Mixed Commission (CNMC) Adoption of the Greentree Agreement Post-conflictdevelopments and potential challenges Fostering social cohesion among the residents in the Peninsula Security and administration in the Peninsula Cross-border cooperation Conclusion: the way forward Notes Chpater 5: The ICJ Bakassi Decision: The rights of the indigenous communities and populations in the Bakassi Peninsula Introduction Case background Indigeneity and/or indigenousness of the peoples and communities in the Bakassi Peninsula Indigenous ties and affinities to ancestral land: a case study of the Bakassi Peninsula State undertakings under international law Greentree Treaty obligations and the rights of indigenous peoples to maintain close ties and links with ancestral land Relocation of Bakassi indigenous populations – forceful or peaceful removal from ancestral land? Compensating displaced indigenous communities The role of free prior informed consent (FPIC) in the furtherance of the rights of indigenous populations in the Bakassi Peninsula Conclusion Notes Chapter 6: Bakassi Decision: International law and the acquisition of sovereignty over land territory Introduction Framework for analysis: three paradigms concerning acquisition of territory The traditional paradigm The Island of Palmas paradigm The Burkina Faso/Mali paradigm Legal title: the validity of the Anglo-GermanAgreement of 11 March 1913 Effectivités: examination of basis of title to Bakassi advanced by Nigeria An historical consolidation of title Conflict between title and effectivités Impact of the Bakassi Decision on maritime delimitation Evaluation: change and continuity of the international law of acquisition of territory Variable meaning of title and effectivités Static characteristics of the Burkina Faso/Mali paradigm Passing of sovereignty in the 2008 Malaysia/Singapore case Conclusions Notes Chapter 7: The Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria Equatorial Guinea intervening) case: Interrogating some ongoing law of the sea challenges Introduction Delimitation of maritime boundary Domestic law of the sea implications of the Bakassi case: reconfiguring Nigerian domestic maritime boundaries Territorial sea and innocent passage of warships Concluding remarks Notes Chapter 8: The ICJ Bakassi Decision: Prospects and implications for the exploitation of petroleum resources in contested waters Introduction Toxic mix of maritime boundary disputes and contest for access to petroleum resources Dispute between Somalia and Kenya over the oil-rich East African coast Dispute between Ghana and Côte d’Ivoire over oil-rich waters Implications of maritime boundary disputes for petroleum exploration investments in contested waters Industry’s changing appetite for investment in contested waters Is the Gulf of Guinea moving from disputes to cooperation and joint development? The significance of oil concessions and licences over contested waters in maritime boundary delimitation Oil concessions granted over disputed Bakassi waters he ICJ’s attempt to settle the role of oil practice in maritime delimitation Inherent contradictions and complications of ICJ’s decision on the grant of petroleum concessions over disputed waters ITLOS vs ICJ approaches to maritime boundary delimitation –Bangladesh v. Myanmar (dispute in the Bay of Bengal) case study Reference to the International Tribunal on the Law of the Sea (ITLOS) The landmark ITLOS judgment Peaceful implementation of ICJ’s Bakassi Decision as ‘good practice’ in resolving maritime boundary disputes? Greece/Turkey delimitation dispute Maritime delimitation in the Black Sea – Romania/Ukraine Gulf of Guinea Commission and West Africa’s evolving practice of peacefulr esolution Case management of maritime boundary disputes with underlying battle for petroleum resources: Nigerian–Bakassi case study Boundary settlements which are mutually satisfactory, favourable and sustainable ICJ’s biased judgment or Nigeria’s middling case management? Could the Bakassi peoples by referendum have overruled the ICJ’s decision that the Bakassi Peninsula should be transferred by Nigeria to Cameroon? Conclusion Notes Chapter 9: The role of a Joint Development Agreement (JDA) in resolving the conflicts and uncertainties over maritime boundary delimitat ion: A missed opportunity in the Bakassi case Introduction International legal framework for maritime boundary delimitation Dispute resolution with respect to international maritime boundaries Some judicial authorities on delimitation Legal basis for the adoption of a JDA The Nigerian–Cameroon land maritime boundary dispute over theoil-rich Bakassi Peninsula Background of Nigeria and Cameroon oil and gas industry The Bakassi conflict The resolution of the conflict Disputes and uncertainties post-ICJjudgment The joint development agreement between Nigeria and Sao Tome and Principe (STP) JDA as an alternative in maritime boundary disputes Conclusion Notes Index