INTERNATIONAL DECISIONS EDITEDBY DAVID D. CARON Territorialand maritimeboundary delimitation-colonial arrangementestablishing conventional title- conventional title prevailing over effectivit(s absent acquiescence of title holder-single maritime boundary-equitable principles/relevant circumstancesrule-equidistant line representingan equitable result for delimitation absent relevant circumstances-interests of nonparty intervenor LANDAND MARITIMEBOUNDARY BETWEEN CAMEROON AND NIGERIA(CAMEROON V. NIGERIA; EQUATORIALGUINEA INTERVENING). At <http://www.icj-cij.org>. International Court ofJustice, October 10, 2002. On March 29, 1994, Cameroon filed an application' with the International Court ofJus- tice (ICJ) requesting that it determine the question of sovereignty over the oil-rich Bakassi Peninsula and a parcel of land in the area of Lake Chad (principally Darak and its region), both of which were in dispute between Cameroon and Nigeria. Cameroon also asked the Court to specify the land and maritime boundary between the two states, and to order an immediate and unconditional withdrawal of Nigerian troops from alleged Cameroonian ter- ritory in the disputed areas.2 As the basis of the Court'sjurisdiction, Cameroon relied on the declarations made by the parties under Article 36(2) of the ICJ Statute. In itsjudgment ofJune 11, 1998, the Court rejected Nigeria's seven preliminary objections alleging that the Court lackedjurisdiction and that Cameroon's application was inadmissible, but it reserved the remaining, eighth objection-relating to the parties' maritime boundary- for consideration at the merits stage.3 The Court's order ofJune 30, 1999, allowed Nigeria to introduce certain counterclaims, and its subsequent order of October 21,1999, unanimously authorized Equatorial Guinea to intervene in the case as a nonparty.4 On October 10, 2002, the Court ruled, by 13 votes to 3 (Judges Koroma and Rezek and Judge ad hocAjibola, chosen by Nigeria, dissenting), that sovereignty over the Bakassi Pen- insula and the Lake Chad area lay with Cameroon. Upholding the validity of certain colonial arrangements invoked by Cameroon, the Court fixed, by clear majorities, the land boundary from Lake Chad in the north to the Bakassi Peninsula in the south. In fixing the portion of the maritime boundary between the two states over which it hadjurisdiction, the Court agreed with Nigeria that the equidistant line between them produced an equitable result. It did not, however, specify the location of the point off the coast of Equatorial Guinea at which the mari- time boundary between Cameroon and Nigeria terminates (the "tripoint"). The Court ordered Amended without objection onJune 6,1994, as noted in the Court's order, 1994 ICJREP. 105, ofJune 16. The basic documents, decisions, pleadings, hearing transcripts, press releases, and other materials of the Court are available online at <http://www.icj-cij.org>. 2 See also the Court's order, 1996 ICJ REP. 13, of March 15, 1996, by which it indicated certain provisional measures. 3 See Land and MaritimeBoundary Between Cameroon and Nigeria (Cameroon v. Nig.), Preliminary Objections, 1998 ICJ REP.275 (June 11) [hereinafter Preliminary objectionsjudgment], and my case report at 92 AJIL 751 (1998). The Court subsequently rejected, 1999 ICJREP. 31 (Mar. 25), Nigeria's request for interpretation of this judgment. 4 See the Court's orders at 1999 ICJ REP.983 (June 30) & 1029 (Oct. 21). 387 This content downloaded from 128.122.190.12 on Mon, 15 Sep 2014 16:28:24 PM All use subject to JSTOR Terms and Conditions 388 THE AMERICANJOURNALOF INTERNATIONALLAW [Vol. 97 each party to withdraw all administration and military or police forces present on territories falling under the sovereignty of the other party. Finally, it unanimously rejected for lack of proof both Cameroon's claims concerning Nigeria's state responsibility and Nigeria's coun- terclaims concerning Cameroon's responsibility.5 The Land Boundaryin theArea of Lake Chad The Court first dealt with the question of the delimitation of the parties' land boundary in the Lake Chad area. Pointing to the various bilateral agreements providing for colonial boundaries entered into by France, Germany, and Great Britain in the late nineteenth and early twentieth centuries, the Court confirmed that the goal of reestablishing the boundary between the newly created British and French mandates following World War I was achieved through a 1919 Franco-British declaration (Milner-Simon Declaration), which was invoked by Cameroon. This declaration, subsequently clarified by another declaration (Thomson- Marchand Declaration) signed by the colonial powers in December 1929/January 1930, was approved and incorporated in an exchange of notes between France and Britain inJanuary 1931, and has the status of an international agreement. It determined the frontier separating the British and French Cameroons, and specified the tripoint in Lake Chad, as confirmed by the Council of the League of Nations.6 The Court found that the 1919 declaration, despite having some technical imperfections, provided for a delimitation that was generally sufficient for demarcation (that is, marking out the course of the boundary on the ground). The demarcation work carried out by the Lake Chad BoundaryCommission (LCBC)after Cameroon (a French colony) and Nigeria (a British colony) gained independence presupposed that a frontier line already was regarded as essen- tially delimited. Nigeria at no time had suggested that the frontiers in the Lake Chad area remained to be delimited-which was confirmed by the work of the LCBCfrom 1983 to 1991 and by its emphasis on the technical exercise of demarcation based on legal instrumentsagreed upon by Cameroon and Nigeria as delimiting the frontier in Lake Chad.7Consequently, the Court concluded, by 14 votes to 2, that the Lake Chad border area was delimited by the inter- national legal instruments invoked by Cameroon.8 Addressing Nigeria's claim to title to the disputed Lake Chad area based on historical consolidation of title (presence) and Cameroon's acquiescence or tacit consent,9 the Court observed that the notion of historical consolidation has been used as a basis of title in terri- torial disputes only in the Anglo-NorwegianFisheries case-and only in connection with certain 5 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.; Eq. Guinea intervening), Judgment, para. 325 (Int'l Ct.Justice Oct. 10, 2002) [hereinafterJudgment]. 6 Id., paras. 48-49. 7 Id., paras. 50-55. 8 Id., paras. 55, 325(I) (A) (dissenting on this point:Judge Koroma andJudge ad hocAjibola). Based on its exam- ination of the governing instruments, the Court reached the same conclusions as the Lake Chad Basin Commis- sion (LCBC) regarding the precise location of the longitudinal coordinate of the Cameroon-Nigeria-Chad tripoint in Lake Chad, from where the boundary starts, although the Court also found that the LCBC had no authority to engage in interpretation on its own. Regarding the question of the mouth of the Ebeji River-to which the boundary followed a straight line-the Court explained that its task in the present case was to ascertain the parties' 1931 intention as to the meaning of the expression "mouth," and not to determine the river's "main channel" as in the Kasikili/SeduduIslandcasebetween Botswanaand Namibia. SeeKasikili/Sedudu Island (Bots./Namib.), 1999 ICJREP. 1045, paras. 30-40 (Dec. 13). The Ebeji no longer has a single mouth, however, through which it discharges its waters into Lake Chad. Instead, it divides into two channels as it approaches the lake. Faced with this problem, the Court fixed the geographical coordinates for the mouth of the Ebeji as itwas in 1931, based on the coordinates thatwere identified both in the governing maps and by the LCBC. The Court found that the 1931 mouth was, with respect to those coordinates, north of the "mouth" suggested by Cameroon and Nigeria (based, respectively, on the river's current western and eastern channels). SeeJudgment, supra note 5, paras. 56-61. 9 In support of its claim, Nigeria pointed to the Nigerian nationality of the inhabitants of the disputed villages, the exercise of authority by the traditional chiefs, the long settlement of Nigerian nationals in the area, and Nigeria's peaceful administration of the villages, in which Cameroon was said to have acquiesced.Judgment, supra note 5, para. 62. This content downloaded from 128.122.190.12 on Mon, 15 Sep 2014 16:28:24 PM All use subject to JSTOR Terms and Conditions 2003] INTERNATIONALDECISIONS 389 maritime delimitation decrees promulgated by Norwayand applied in practice without oppo- sition.?1The Court characterized the theory of historical consolidation as "highly contro- versial"and as incapable of replacing the established modes of acquisition of title to territory under international law.ll Nothing in the Court's case law suggests that historical consolida- tion allows land occupation to set aside an established conventional territorialtite. Regarding the legal relationship between effectivitesand titles, the Court recalled its earlier findings that preference should be given to the holder of the title over another state admin- istering a disputed territory.12Although policing, the administration ofjustice, and the orga- nization of health and education facilities could typically be considered as actesa titrede sou- verain,or manifestations of sovereignty, the pertinent legal test was whether Cameroon had acquiesced in the passing of its preexisting title from itself to Nigeria. In the Court's view, the evidence showed that Cameroon had not so acquiesced: in addition to its modest adminis- trative activity (including tax collection) and exercise of control, Cameroon had firmly pro- tested Nigeria's diplomatic note of April 14, 1994, in which Nigeria first claimed sovereignty over Darak.13 TheLand Boundaryfrom Lake Chad to the Sea (theBakassi Peninsula) The Court next considered the course of the parties' land boundary from Lake Chad to the sea, which Cameroon had asked the Court "to specify definitively" by confirming that certain colonial agreements defining the boundary were binding on the parties and were applicable.