Settlement Of Territorial Disputes
Role Of International Court Of Justice In Settlement Of Territorial Disputes
The International Court of Justice (hereinafter ICJ), one of the six principal organs of the United Nations, serves as its main judicial organ. It acts as a world court and has a dual jurisdiction, deciding disputes that are brought to it by states and giving advisory opinions on legal questions at the request of organizations like the UN. The 15 judges of the ICJ are elected by the UN General Assembly and the Security Council for a period of nine years. The election process was designed with the aim of restricting political pressures in the selection of judges. However, one of the criticisms of the Court is that in practice politicization does occur.
Southeast Asia has turned to the ICJ on three occasions. The first case was Cambodia v. Thailand in 1959 and concerned the Preah Vihear Temple. Indonesia and Malaysia turned to the ICJ in 1998, in order to resolve an ongoing dispute over sovereignty over Pulau Ligitan and Pulau Sipadan, two islands in the Celebes Sea. In 2003, Malaysia and Singapore turned to the ICJ in a bid to resolve territorial disputes regarding Pedra Branca, Middle Rocks and South Ledge.
The thrust of this paper is on the principle of uti possidetis, as elucidated by the ICJ in the Burkina Faso case. In that case, the Chamber emphasised in lucid detail the scope of the principle of uti possidetis. It said that one of the aspects of the principle is the pre-eminence accorded to legal title over effective possession as the basis of sovereignty. This principle was also discussed in the Beagle Channel Arbitration case between Argentina and Chile, however the tribunal did not find it persuasive. This principle now has universal application and is recognised by international agreements of a universal character as well. The African states too have adopted this principle. The OAU Assembly of Heads of State and Government adopted the Resolution on the Intangibility of frontiers where the principle of uti possidetis was expressly affirmed. However, the African states reinterpreted this principle, in Africa the principle encompasses the principle of territorial integrity. This is apparent from the wording of Article 3, paragraph 3 of the Charter, the Resolution on the Intangibility of Frontiers and State practice with respect to the secession of Katanga and Biafra.
Frontier Dispute Case
In the Frontier Dispute in the Burkina Faso/Mali case, the subject of the dispute was submitted to the Chamber by a special agreement of 1983 and asked it to delimit the common frontier between Burkina Faso and the Republic of Mali. Burkina Faso's claim is based upon the frontier delimited by French colonial administration and recognition of the principle of uti possidetis. It relies upon colonial maps rather than official legal documents and it considers them to be the true objective texts. It believes Mali's claim of challenging the principle of uti possidetis to be ill-founded as it would subvert the stability of Africa. Mali's claim is that the disputed region formed geographically and historically a part of French Sudan. It asserts that the only valid texts are legal documents and not maps as they are often self-contradictory and conflict with legal documents. Furthermore, it argues that the inhabitants of the area are ethnically Malians.
Since both States had formed part of French West Africa the boundaries had been defined by French law. Thus, both parties acknowledged that the delimitation had to be appraised in accordance with French colonial law. However, the court doubted it's suitability because international law and in the principle of uti possidetis, applied as from the accession of independence and did not have a retroactive effect. Chamber noted that its determination of the land border between the parties would not be opposable to Niger, a neighbouring state whose boundaries might be thought to be affected by the determination, because of article 59, ICJ Statute.
Judge Abi-Saab, ad hoc judge, made a separate observation, he considered that the Chamber had failed to apply in practice what it stated as a general principle. The colonial boundary had been vaguely defined and yet the Chamber had unduly relied on historic material without adequate reference to equitable considerations in drawing the lines. The reason behind this was to satisfy the concept of uti possidetis which, in his view, was not an absolute but a relative principle, to be interpreted in the within the international legal order.
Uti Possidetis , Self-Determination & Effectivites
The essence of the principle of uti possidetis lies in its chief aim of securing respect for the territorial boundaries at the moment when independence is achieved. These territorial boundaries might be mere delimitations amongst various administrative divisions or colonies all subject to the same sovereign. The application of the principle of uti possidetis, in this case, resulted in administrative boundaries being transformed into international frontiers. This is applicable for South American states under the Spanish Crown and the States Parties to the present case, which formed in French West Africa. Therefore, we understand that this is a principle of a general kind which is logically connected with this form of decolonization wherever it occurs. The territorial boundaries which have to be respected may also be obtain from international frontiers which formerly separated a colony of one State from a colony of another, or a colonial territory from the territory of an independent State, or one which was under protectorate, but had retained its international personality. Thus, it is clear that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law whether or not the rule is expressed in uti possidetis.
The point is how this age old principle is still followed in Africa where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. On the surface, it may appear that this principle conflicts utterly with the right of peoples to self-determination. In Africa, the wisest thing is to maintain the territorial status quo so as to preserve what has been achieved by the struggle for independence by the peoples and to avoid a disruption which would divest the continent of the gains achieved by such sacrifice. The essential requirement here is stability which is required in order to survive for these people and to develop and strengthen their independence in all fields, this has included African States to prudently consent to the respecting of colonial frontiers, and to take it into consideration in the interpretation of the principle of self-determination of peoples. Thus, the principle of uti possidetis has retained its stand among the most important legal principles, despite the apparent contradictions which explained its coexistence in conjunction with the new norms.
The parties have invoked the principle of “colonial effectivites”, in other words, the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period. The task in this case of the effectivites is complex. Where the act corresponds exactly to law, where effective administration is additional to the uti possidetis juris, the only role of effectivite is to corroborate the exercise of the right derived from a legal title. Where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preferences should be given to the holder of the title. In the event that the effectivite does not coexist with any legal title, it must invariably be taken into consideration. Also, there are cases where the legal title is not capable of showing exactly the territorial expanse to which it relates. In such a situation, the effectivites can play an essential role in showing how the title is interpreted in practice. The principle of uti possidetis has not been applied as state practice in post-colonial Africa in every case, this was pointed out by Judge Luchaire. He mentioned, inter alia, that British Togoland, a trust territory, was merged with the Gold Coast, a British colony, to become the new state of Ghana. The approach in the Frontier Dispute case to the uti possidetis was followed by another ICJ chamber in the Land Island and Maritime Frontier Dispute case.
In the Land and Maritime Boundary between Cameroon and Nigeria case, the plenary court followed its approach in the Frontier Dispute case and the Land, Island and Maritime Frontier Dispute Chamber cases on the significance of effectivites that are inconsistent with the legal title, contra legem, in the determination of title generally.
Cameroon V. Nigeria
In order to assess Nigeria's claim based on the theory of historical consolidation of title and on the acquiescence of Cameroon one must refer to the initial determination of the Court. During the oral pleadings Cameroon's assertion that Nigerian effectivités were contra legem were dismissed by Nigeria. But the Court said that now that it has made its findings that the frontier in Lake Chad was delimited long before the work of the LCBC began, it necessarily follows that any Nigerian effectivités are indeed to be evaluated for their legal consequences as acts contra legem.
The Court has already ruled on a number of occasions on the legal relationship between “effectivités” and titles. In the Frontier Dispute (Burkina Faso/Republic of Mali), it pointed out that in this regard “a distinction must be drawn among several eventualities”, stating inter alia that “where the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title. In the event that the effectivité does not co-exist with any legal title, it must invariably be taken into consideration.”
It is this first eventuality here envisaged by the Court, and not the second, which corresponds to the situation obtaining in the present case. Thus Cameroon held the legal title to territory lying to the east of the boundary as fixed by the applicable instruments. Hence the conduct of Cameroon in that territory has pertinence only for the question of whether it acquiesced in the establishment of a change in treaty title, which cannot be wholly precluded as a possibility in law. The evidence presented to the Court suggests that before 1987 there was some administrative activity by Cameroon in the island and lake-bed villages that were beginning to be established. There were yearly administrative visits from 1982 to 1985; the villages of Chika'a, Naga'a, Katti Kime and Darak participated in elections for the presidency of the Republic of Cameroon; administrative action was undertaken for the maintenance of law and order in Naga'a, Gorea Changi and Katti Kime. The 1984 census included 18 villages, among them Darak. Appointments of village chiefs were referred for approval to the Cameroon prefect. As for the collection of taxes by Cameroon, there is modest evidence relating to Katti Kime, Naga'a and Chika'a for the years 1983 to 1985.
It appears that the control of certain local Cameroonian officials over the area was limited. As Nigerian settlements, and the organization within them of village life, became supplemented from 1987 onwards by Nigerian administration and the presence of Nigerian troops, Cameroon restricted its protests to a few incidents, rather than to the evolving situation as such. However, Cameroon continued sporadically to seek to exercise some administrative control in these areas, albeit with little success in this later period.
Cameroon argued that it did not regard the activities of Nigeria in Lake Chad in the years 1984 to 1994 as à titre de souverain, because Nigeria was in those years fully participating in the work entrusted to the LCBC and its contractors, and agreed that they should work on the basis of the various treaty instruments which governed title. The Court did not accept Nigeria's argument that the explanation given by Cameroon depends upon the supposition that the Report of Experts was binding upon Nigeria automatically. It depends rather upon the agreed basis upon which the demarcation work was to be carried out.
On 14 April 1994, Nigeria in a diplomatic Note, for the first time claimed sovereignty over Darak. Cameroon firmly protested in a Note Verbale of 21 April 1994, expressing “its profound shock at the presumption that Darak is part of Nigerian territory”, and reiterating its own sovereignty. Shortly after, it also enlarged the scope of its Application to the Court.
The Court finds that there was no acquiescence by Cameroon in the abandonment of its title in the area in favour of Nigeria. Accordingly, the Court concluded that the situation was essentially one where the effectivités adduced by Nigeria did not correspond to the law, and that accordingly “preference should be given to the holder of the title.”
It was found that the small population of Bakassi already present in the early 1960s grew with the influx from Nigeria in 1968 as a result of the civil war in that country. Gradually sizeable centres of population were established. Nor is there any reason to doubt the Efik and Effiat toponomy of the settlements, or their relationships with Nigeria. But these facts of themselves do not establish Nigerian title over Bakassi territory; nor can they serve as an element in a claim for historical consolidation of title. Nigeria has relied on many activities in Bakassi that it regards as proof both of settled Nigerian administration and of acts in exercise of sovereign authority. Among these acts are the establishment of schools, the provision of health facilities for many of the settlements and some tax collection.
The provision of education in the Bakassi settlements appears to be largely Nigerian. They were not supported by public funds, but were under the authority of the Nigerian examination and education authorities. Community schools, health centres and religious institutions were established by the Nigerian Government. There was also some collection of tax, certainly from Akwa, Archibong, Moen Mong, Naranyo, Atabong and Abana.
Nigeria notes that Cameroon failed actively to protest these administrative activities of Nigeria before 1994. It also contends that the case law of this Court, and of certain arbitral awards, makes clear that such acts are indeed acts à titre de souverain, and as such relevant to the question of territorial title. But it was held that in none of these cases were the acts referred to acts contra legem; those precedents are therefore not relevant. The legal question of whether effectivités suggest that title lies with one country rather than another is not the same legal question as whether such effectivités can serve to displace an established treaty title. As the Chamber of the Court made clear in the Frontier Dispute case, where there is a conflict between title and effectivités, preference will be given to the former.
The relevant legal question in this case is whether the conduct of Cameroon, as the title holder, can be viewed as an acquiescence in the loss of the treaty title that it inherited upon independence. There is some evidence that Cameroon attempted, inter alia, to collect tax from Nigerian residents, in the year 1981-1982 in soem areas. But it engaged in only occasional direct acts of administration in Bakassi, having limited material resources to devote to this distant area.
However, its title was already established. And as has been shown above, in 1961-1962 Nigeria clearly and publicly recognized Cameroon title to Bakassi, this position remained till 1975, when Nigeria signed the Maroua Declaration. No Nigerian effectivités in Bakassi before that time can be said to have legal significance for demonstrating a Nigerian title; this may in part explain the absence of Cameroon protests regarding health, education and tax activity in Nigeria. The Court noted that Cameroon had since its independence engaged in activities which made clear that it in no way was abandoning its title to Bakassi. Cameroon and Nigeria participated from 1971 to 1975 in the negotiations leading to the Yaoundé, Kano and Maroua Declarations, with the maritime line clearly being predicated upon Cameroon's title to Bakassi. Cameroon also granted hydrocarbon licences over the peninsula and its waters, again evidencing that it had not abandoned title in the face of the significant Nigerian presence in Bakassi or any Nigerian effectivités contra legem. And protest was immediately made regarding Nigerian military action in 1994.
The Court decided that the Nigeria could not have been acting à titre de souverain before the late 1970s, as it did not consider itself to have title over Bakassi; and in the ensuing period the evidence does not indicate an acquiescence by Cameroon in the abandonment of its title in favour of Nigeria.
It declared that the role of effectivité which deals majorly with the conduct and practice of the parties and has its legal basis founded on some of the provisions of the Vienna Convention on the Law of Treaties of 1969, particularly its paragraph 31, has as its advantage, the need to ensure stability along the boundaries of two States. Short of invalidating a legal title that bears no relation to the situation on the ground, effectivité comes in to play the role of sustaining complementarily the boundary based on the practice and conduct of the parties over the years which, in effect, is similar to the principle of uti possidetis juris (de facto). Consequently, effectivité comes in to adjust, vary or amend such boundary as may be structurally established by the legal title.
In its Judgment, particularly in paragraph 325 III (A), (B) and (C), the Court failed to take into consideration the situation on the ground in the Bakassi Peninsula, despite the fact that no one is left in doubt that at the moment this territory, and indeed since independence, is occupied and firmly in possession of Nigeria and inhabited by Nigerian people; hence my reason for voting against the decision of the Court. This is an artificial decision that fails blatantly to take into consideration, contrary to all the accepted principles of international law and practice, that effectivités must invariably be given consideration in a matter of this nature. Furthermore, the Court fails to take into account the submission of Nigeria based on historical consolidation, which the Court now refers to as mere theory. The decision of the Court, in my view, is rather a political decision than a legal one.
In conclusion, despite the long-standing history of the rules concerning States' territorial sovereignty and their enduring importance, and despite the level of sophistication of the norms and principles regulating territorial disputes, it is undeniably astounding to find that such little attention has been paid to the question of the violation of those norms and the consequences in terms of State responsibility. There are virtually no judicial precedents dealing with claims of State responsibility in territorial disputes. The opportunity to deal with this issue was offered to the ICJ in Cameroon/Nigeria, but the Court unanimously decided, with the only exception being Cameroon's Judge ad hoc Mbaye, to limit itself to deliver a standard declaratory judgment and put aside the question of State responsibility. The Court did not foresee a subsequent phase related to the estimation of reparation in the context of an already very lengthy and complex litigation, but, rather, elaborated a decision with a view to creating a less confrontational environment between the two countries on such a sensitive issue as States' territorial sovereignty, and to addressing the interests of the local populations affected by the dispute. It was taking into account its broader role within the UN system of body also responsible for promoting an overall settlement of disputes.
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Ian Brownlie, International Law (7th edition, 2008).
Rosalyn Higgins, Themes & Theories, Volume 1, 2009.
Philip C. Jessup, The Palmas Island Arbitration, The American Journal of International Law, 1928.
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