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

7/20/2008

On October 10, 2002, the International Court of Justice (ICJ) granted the ownership of Bakassi Peninsula to Cameroon.[1] Following the ruling, both sides, Cameroon and Nigeria, have taken positive steps, most notably of which, is the Green Tree Agreement [GTA][2] 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[3], court action by some in Nigeria to halt the August 14, 2008 hand over[4], Nigeria’s Senate declaration that the GTA is unconstitutional[5] and the pronouncement that the Nigerian military was not consulted.[6] 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 Cameroonians. From an historic perspective, when the Northern Cameroons opted for integration with the Federation of Nigeria on June 1, 1961,[7]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,[8] again 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.[9] 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 advanced 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.[10] Similarly, the suggestion that “the former President, Chief Olusegun Obasanjo, presumptively did not consult the military before the cession of Bakassi Peninsula to Cameroon,”[11] should somehow invalidate a Judgment of the ICJ is misplaced and perplexing, irrespective of any security concerns.[12]

Former President Obasanjo did not relinquish Bakassi or caused a cession of any territory under Nigerian sovereign jurisdiction to Cameroon. Any suggestion to the contrary is simply not true. When President Obasanjo signed the GTA on June 12, 2006, Bakassi was already internationally recognized as being an integral part of the sovereign territory of Cameroon.[13] 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.”[14] 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.[15]

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].[16] 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 peninsula by Nigeria[17] 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.[18] In this regard, Nigeria had accepted the ICJ'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.[19] 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 peninsula 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 Peninsula 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 acquiesces to be bound by a treaty.[20] The process invariably involves a transfer of a limited aspect or a limitation of supreme national sovereignty by the supreme collective sovereignty. Thus, when Cameroon and Nigeria ratified the treaty on the ICJ compulsory jurisdiction, they obligated their countries to honor and enforce 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.[21] 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.[22]

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.[23] 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.[24] 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[25], we are convinced that Nigeria will stand by its official position and hand over the administrative authority over the Bakassi Peninsula to Cameroon on August 14, 2008 as scheduled.

Simon W Tache



[1] Land and Maritime Boundary between Cameroon and Nigeria, ICJ Reports, 303 (2002)

[2] AGREEMENT BETWEEN THE REPUBLIC OF CAMEROON AND THE FEDERAL REPUBLIC OF NIGERIA CONCERNING THE MODALITIES OF WITHDRAWAL AND TRANSFER OF AUTHORITY IN THE BAKASSI PENINSULA, June 12, 2006, known as the “Green Tree Agreement.”

[3] According to Cameroon's Army Chief of Staff, General Rene Claude Ze Meka, the DO of Kombo Abedimo was heading nine-man delegation on his maiden official visit to a fishing port in Kombo when tragedy struck “Cameroon: Bakassi Boils Again - DO, 5 Soldiers Shot”, The Post (Buea), 12 June 2008, http://allafrica.com/stories/200806121075.html; Nearly 30 Cameroon soldiers have been killed and more than five wounded by so called unknown attackers. See, for example, http://www.africanews.com/site/list_messages/13309

[4] “Nigeria: Court Urged to Halt Handover of Bakassi”. 18 July 2008, http://allafrica.com/stories/200807180122.html

[5] “Nigerian Senate Rejects Bakassi Peninsular Hand-Over”, November 24, 2007, http://www.africanews.com/site/list_messages/13309

[6] What bearing if any does the failure of a Head of State to consult the military brass have to do with implementation of a judgment of the ICJ? “Nigeria: War Imminent Over Bakassi - Defense Chief”, July 17, 2008, http://allafrica.com/stories/200807170436.html

[7] UN Resolution 1608 (XV) of April 21, 1961

[8] On May 30, 1967, Lieutenant Colonel Chukwuemeka Odumegwu Ojukwu declared the South Eastern Region of Nigeria an independent state of Biafra with a capital at Enugu. The ensuing civil war, that lasted until January 15, 1970, caused nearly one million deaths; Hanbury, Prof H G (January 1967). "OE News - News from All Quarters". The Epsomian XCVII (1): 35. Retrieved on 2007-08-26. “Colonel C O Ojukwu, Military Governor of Eastern Region, Nigeria was vigorously commended in The Daily Telegraph; "Biafra: Thirty years on," BBC. 13 January 2000. Thirty years later, Nigeria cannot find peace. Cameroonians must make every effort not to succumb to the same pitfall. [9] Even before the ICJ ruling, the leaders of Nigeria and Cameroon had already committed themselves on September 5, 2002 to abide by a decision of the International Court of Justice (ICJ) on a border dispute between the two countries, and would restore friendly relations.
“CAMEROON-NIGERIA: Obasanjo, Biya to abide by ICJ border decision”, ABIDJAN, 6 September 2002, http://www.irinnews.org/report.aspx?reportid=34174

[10] As the lawyer representing the Nigerian government, lawyer Abel Ezioko, correctly pointed out, “the High Court could not to sit as an appeal tribunal to the ICJ.”This court cannot upturn the judgment of the ICJ,” Nigeria: Cameroonian Deputy Governor Abducted in Bakassi, June 11, 2008, http://allafrica.com/stories/200806110028.html

[11] Ironically, he continued, “He said, "I am not sure that the military made any contribution to the Green Tree Agreement, but I know that the then Chief of Defense Staff, General Martin Luther Agwai, traveled with the former President to New York when the agreement was signed." “Nigeria: War Imminent Over Bakassi - Defense Chief” Leadership (Abuja), 17 July 2008, http://allafrica.com/stories/200807170436.html

[12] This author can assure General Owoye Azazi, that the Nigerian military has been in consultation with regard to the Bakassi maritime boundary delineation since 1970.

[13] See Note 1.

[14] Article 1 of the GTA

[15] Article 4 of the GTA

[16] Article 7 of the GTA

[17] Annex I(3)(c) of the GTA directs Nigeria “ not engage in any activity in the Zone which would complicate or hinder the transfer of authority to Cameroon;”

[18] The presence of the Nigerian Administration on the peninsular did not and could not destroy the Cameroon sovereignty over the Bakassi Peninsular. This fact was clearly recognized and validated by the ICJ.

[19] After examining the legislative history of the provisions of the Vienna Convention on the Law of Treaties, the Court concluded “that the general rule reflected in Articles 16 and 24 of the Vienna Convention, which, the Court observes, may only be applied to declarations accepting the Court's jurisdiction as obligatory by analogy, is that: the deposit of instruments of ratification. acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty; and that the treaty enters into force as regards that State on the day of the deposit. Thus the rules adopted in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Iizdirlir Territory,” ICJ/. Reports 1957, p. 146

[20] Article 1 of the Vienna Convention on the Law of Treaties 1969.

[21] Contrast with [sic] the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur;” Article II, section 2 of the Constitution for the United States of America, http://www.constitution.org/constit_.htm

[22] A party to a treaty “may not invoke the provisions of its internal law as justification for its failure to perform a treaty,” Article 27 and a party to a treaty “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 concerned a rule of its internal law of fundamental importance”46 of Vienna Convention on the Law of Treaties.

[23] Article 94(1) of the UN Charter and Article 59 of the Statute of the ICJ)

[24] Article 94(2) of the UN Charter.

[25] For an analysis in accord, see “BAKASSI: CRITICAL LOOK AT THE GREEN TREE AGREEMENT” by Professor Edwin Egede, PhD, http://works.bepress.com/cgi/viewcontent.cgi?article=1007&context=edwin_egede

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2013 AMERICAN GOVERNMENT SHUT DOWN: SYSTEMIC OR BROKEN MIRROR?

 

On October 1, 2013, a group of ultra conservative Republicans in the US House of Representatives orchestrated and launched the perfect plan to finally destroy the Patient Protection and affordable Health Care Act[1] (ObamaCare). The masterminds behind this plan, despite a series of miscalculations, thought they had finally found the magic bullet to undo President Obama's signature piece of legislation. After all, under Article 1(8-9) of the Constitution of the United States, the House of Representatives hold the keys to the purse. Thus, the architects devised a plan not to temporarily fund the government or raised the debt ceiling unless President Obama agreed to defund or delay implementation of ObamaCare. Of course and not surprisingly, the President called their bluff and declared "".I will not negotiate over Congress' responsibility to pay the bills it has already racked up. I don't know how to be more clear about this: no one gets to threaten the full faith and credit of the United States of America just to extract ideological concessions."[2] Majority leader in the Senate, Democrat Harry Reid, called the demand to defund ObamaCare a nonstarter "that would never happen". Even some Republicans duped the demand "a fraud". Unfortunately, on October 1, 2013, the government was shut down.[3] We all know it took sixteen (16) days for the Senate initiated law to bring this self- inflicted wound to an end.[4]

The Standard & Poor has estimated that the shutdown has cost the US economy $24 billion and "The bottom line is the government shutdown has hurt the US economy".[5] This cost estimate is simplistic and incomplete. How does anyone put a price tag on the anxiety and mental anguish that this ill-conceived, structurally faulty and deliberately manufactured crisis has caused not only the American populace, but people all over the world. The American Dollard is the world standard currency. As such, international commerce all over the world is conducted in US Dollars. Consider a contract between the Chinese and Brazilian governments, the performance of which is based on American Dollars because of the universal acceptance of the the full faith and credit of the United States of America. Even the appearance, however remote, that the Dollar will lose its stability will negatively affect the transaction.

One of the most invaluable characteristic of the American system of governance is its stability in politics, ideology and policy making. Accordingly, the unnecessary and naïve shut down of the government and experimentation with the debt ceiling hurts both the American people and US world standing.[6] One must wonder if the architects of this fiasco thought beyond their locale politics. Next time, they better because these antics are not good for America and by extension the world. The point is that there will be unintended consequences beyond American borders as a result of this reckless conduct. The absurdity of it all is that the so called fiscal responsibility advocates are at the root of this fiscal and political irresponsibility.

Logically, the first question people are asking is if we will be going through this again in three months? However, before we can answer this question, we must first answer the question, how did we get to this low point in the first place? Until we can effectively answer the later question, these manufactured crises would persist. Why would any American, let alone a law maker flirt with shutting down the government or full faith and credit of the United States? Yes, no one wanted to shut down the government, we are told, but the action says otherwise and this is unfortunate.

Some have argued that the problem is systemic. We summit that the answer straddles more than the Constitutional structure of the Congress. Although Congress is a decentralized institution, this is by design because of its deliberative role in a deliberative government. Thus, its strength becomes a flaw and inhibits consensus when politicians opt to advance their relationship with interest groups and local over national interests. Yet, this structure has served the American people for over three hundred (300) years and has become the beacon of inspiration and stability to the rest of the world. Therefore, there   must be another explanation for the dysfunction that has engulfed the House of Representatives since 2009.

To answer the question how we got to this point, we must go back to November 6, 2008.[7] During the 2008 Presidential campaign, we noted that the Republicans came out of their National Convention on September 4, 2008, with two divergent and incompatible messages. The dichotomy in their ideology was indicative of an identity crisis likely to torpedo their message.  Regrettably, this split in ideology has been exacerbated in the Republican House of Representatives since the 2010 midterm elections.

Then on November 6, 2008, the unthinkable happened. The extreme right became witnesses to a sudden and transformational change which took the world by storm and for which nothing could have prepared them. Obama, a black man, was elected President of the most powerful nation on earth. As the majority of America rejoiced and celebrated with the rest of the world that historic event, to this minority group this outcome was devastation. Their world, as they have known it, has been turned upside down and their belief system was being tested to its limit. Hence, the pledge to make President Obama fail, make him a "one term President" and "take back our country". In short oppose any and everything this President does irrespective of consequences and collateral damages.

As the President and the willing members of Congress crafted policies that single handedly lifted America from the brink of total economic collapse into relative prosperity and world peace, this group spared no effort to undermine those policies. To further compound the problem, President Obama was reelected for a second term on November 6, 2012. The realization that they have to deal with the President for four (4) more years and beyond was further evidence that the obstructionist and contrarian positions, of the vociferous attitude of the new members of the extreme wing of the Republican House of Representatives, had failed. As a result, unjustified fear turned into anger and the anger into hate. The ultra conservatives began to view any policy initiative by the President through a broken mirror. No wonder, those views are driven by the politics fear and hate. Imagine if most of these efforts had been geared towards cooperation in solving America's economic and social issues. Instead, the politics of fear and hate have created a rift between conservative America and the ultra-right and the rift has widened even amongst Republicans. As a result, the government shut down crisis of October 1, 2013 is emblematic of this rift.

As nation guided by the rule of law, it is axiomatic that the Supreme Court has the "final word" in the application of the laws of the land and, as such, all citizens, including the executive and legislative branches of government too must act within the constitutional boundaries. On June 29, 2012, the Supreme Court upheld the constitutionality of ObamaCare[8] thereby making it the law of the land. In fact, on June 12, 2008, the Supreme Court had reaffirmed and validated the rule of law as the cornerstone of the American democratic system of governance.[9] The LAKHDAR BOUMEDIENE case cited above teaches that in a democracy if the Congress does not like a ruling of the Supreme Court, they can change, modify or do nothing. Since ObamaCare was enacted into law by Congress, the extreme right has mounted at least 44 attempts and a multitude of legal challenges to the law and all of these attacks have failed. Indeed, it is questionable whether Congress can constitutionally vote to defund a law of the land where the political and legal processes have ran its course. Such a practice would engender a dangerous and slippery slope to anarchy. Above all, what message are these lawmakers sending to our kids and enemies alike and what does that say about their character to law abiding citizens?

There are merits to some of the Republicans' positions. Unfortunately, the madness is in their methods. In a democratic and free society, equal rights inextricably include the creation of the environment that delivers greater ascendant to economic equality. To advocate the extension of subsidies and tax breaks to businesses is good policy, but to concurrently refuse to raise even the minimum wages for those at the bottom of the economic ladder, who provide the labor utilized by the same businesses, is to undermine a fundamental end of society. To argue that the law of the land should apply with equal force to all citizens, is good policy; but to simultaneously seek to undermine the same law because it offers citizens access to affordable healthcare does not foster the human attributes that produce good citizenship and promote a better quality of life.

As these two examples illustrate, an inherent conflict permeates the Republican message and method. A principled stance is laudable as long as it is credible and grounded on intellectual integrity. Maybe the law will turn out to be as bad and expensive as portrayed; but to declare it a failure before its implementation and analysis of evaluation data,  is a view through a broken mirror. Extensive policy analysis was conducted prior to the enactment of ObamaCare and there is no contrary and conclusive evaluation evidence to pass any sound judgment. Even if the law is everything claimed, where is the alternative solution and where are the efforts to make improvements and make it better? Imagine, that all the energy and resources spent in the last three years on a lost cause had been directed towards improving and making better ObamaCare. [10]  In the end, unless the Republicans can eliminate the dichotomy in their ideology, their attempts to capture national office would remain an exercise in futility.


[1] 2010. Mar 23, The Patient Protection and Affordable Care Act (PPACA), Pub. L. No. 111-148, 124 Stat. 119.

[2] http://thehill.com/blogs/blog-briefing-room/news/325283-obama-to-republicans-i-will-not-negotiate#ixzz2i61TIfXh

[3] Since the modern congressional budgeting process took effect in 1976, there have been a total of seventeen separate government shutdowns, http://firstread.nbcnews.com/_news/2011/04/08/6432513-this-would-be-18th-government-shutdown-in-us-history.

[4] http://www.washingtonpost.com/blogs/wonkblog/wp/2013/10/16/read-heres-the-bill-that-will-end-the-government-shutdown/

[5] http://rt.com/business/us-government-shutdown-losses-256/

[6] It should not surprise any international observer that the China has already called for the creation of a new reserve currency to replace the Dollar. http://www.latimes.com/business/la-fi-shutdown-china-20131015,0,260996.story

[7] "Obama Grabs News Headlines Around The World - November 6, 2008", https://www.google.com/search?sourceid=navclient&ie=UTF-8&rlz=1T4GGNI_enUS541US541&q=November+6%2C+2008

[8] http://www.forbes.com/sites/brighammccown/2012/06/29/supreme-court-upholds-ObamaCare-who-really-won/

[9] LAKHDAR BOUMEDIENE, ET AL., v. GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL. KHALED A. F. AL ODAH, NEXT FRIEND OF FAWZI KHALID ABDULLAH FAHAD AL ODAH, ET AL., v. UNITED STATES ET AL., 553 U. S. 41 (2008)

[10] Without defending the technocrats, a computer program failure does not equate to a failure of ObamaCare.