Dr Tumasang, Thanks for referring to this Judgment. I also read the arbitration decision concerning the same matter. I wish to refer to the opinion of Judge Oda hereunder and to state that by not challenging the lgal status of La Republique du Cameroun over the Southern Cameroons, not only did us a great disservice but acted in bad faith and in violation of its own High Court order to defend our interest in the Land and Maritime Case, Cameroun Vs Nigeria. This case in perspective was one of the greatest diplomatic and legal strategies to challenge the force occupation of East Timor by Indonesia in order to attain the decision aptaly stated by Judge Oda. To so, Australia dared Indonesia by laying claims to and occupying part of the East Timor Continental Shelf , ofcourse in full agreement of the East Timorese Liberation Front that wwas involved in armed conflict to expel Indonesia from their territory. Australia than through diplomatic channels invited Portugal to file an action against Australian occupation and claim over that part of the territory. The decision that followed clearly defined the status of the Portugal's colonial possession of East Timor in law. reaffirmed her right to self deterimination and as well as confirmed the UN obligations towards the ensuring that those inalienable rights were respected. Indonesia's came out the loser and the occupied territory ofEast Timor the winner. From then Australia moved to the next stage of supporting the struggle of East Timor for freedom and independence. It finally made substantial contributions of its armed forces to the International forces that were deployed to the territory. Had Nigeria challenged the pleadings in the case filed by La Republique as we have argued, the ICJ might have taken the occasion to clearly define our status in international. From a posting by Dr Mbua concerning the procedure and jurisdiction in bringing all actions concerning the execution of the trusteeship agreement, Nigeria as an interested party had locus standi to raise tha matter before the ICJ. Failing to do so makes Nigeria as culpable and even complicit in our occupation and colonial status just La Republique du Cameroun, the principal perpetrator. The lack of locus of Portugal was due to the fact that rather than grant independence to East Timor, it merely packed out and left the territory to be forcefully occupied by Ndonesis. Thanks again for bringing this jurisprudence to our attention. [p. 118 S.O. Oda] 19. Irrespective of the status of East Timor - which is still in abeyance according to the United Nations - and irrespective of the rights of the people of East Timor to self-determination guaranteed by the United Nations Charter, it is clear that Portugal has not been considered - at least since the early l980s - to be a coastal State lying opposite to Australia and that in 1991, when Portugal's Application was filed in the Registry of the Court, it did not have any authority over the region of East Timor, from the coast of which the continental shelf extends south-wards in the Timor Sea.
--- On Sun, 2/3/13, Tumasang Martin <tumasangm@hotmail.com> wrote:
From: Tumasang Martin <tumasangm@hotmail.com>
Subject: RE: WHAT IS THE STATUS OF FORMER TRUST TERRITORIES BEFORE THE ICJ?
To: "ambasbay@googlegroups.com" <ambasbay@googlegroups.com>
Cc: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>, "camnetwork@yahoogroups.com" <camnetwork@yahoogroups.com>
Date: Sunday, February 3, 2013, 6:09 AM
Brother Atemkeng, I know you asked the question to Chief Taku and he will surely reply. Please can I beg your over indulgence to post here an example of East Timor where an occupying power tries to claim locus standi in the ICJ on behalf of the occupied. The arguments show how difficult it might be to state the correct position clearly. In hindsight, the Chief was wise to advise that we leave the issue because it cannot easily be decided one way or another. In order to entertain the Application against Australia with respect to the continental shelf in the "Timor Gap" or, more specifically, the area called the "Zone of Cooperation" which Australia claims in part, the Court needs to be convinced, as a preliminary issue, of the standing of Portugal in this case as being a coastal State with a claim to the continental shelf in the Timor Sea as of 1991, the year of the Application. [p. 118 S.O. Oda] 19. Irrespective of the status of East Timor - which is still in abeyance according to the United Nations - and irrespective of the rights of the people of East Timor to self-determination guaranteed by the United Nations Charter, it is clear that Portugal has not been considered - at least since the early l980s - to be a coastal State lying opposite to Australia and that in 1991, when Portugal's Application was filed in the Registry of the Court, it did not have any authority over the region of East Timor, from the coast of which the continental shelf extends south-wards in the Timor Sea.
20.
It follows that Portugal lacks standing as an Applicant State in this proceeding which relates to the continental shelf extending southward into the Timor Sea from the coast of East Timor in the "Timor Gap". For this reason alone, the Court does not, in my view, have jurisdiction to entertain the Application of Portugal and the Application must be dismissed.
[p. 182 D.O. Weeramantry] While recognizing that Portugal has not in this case sought to base its locus standi on any footing other than that of an administering Power, this anomaly can also be illustrated in another way. In South West Africa, Second Phase (I.C.J. Reports 1966, p. 6), two States which had no direct connection with the territory in question sought to bring before the Court various allegations of contraventions by South Africa of the League of Nations Mandate. There was no direct nexus between these States and South West Africa. Their locus standi was based solely on their membership of the community of nations and their right as such to take legal action in vindication of a public interest.
The present case is one where the Applicant State has a direct nexus with the Territory and has in fact been recognized by both the General Assembly and the Security Council as the administering Power.
This case has similarities with South West Africa in that there is here, as there, a territory not in a position to speak for itself. There is here, as there, a Power which is in occupation by a process other than one that is legally recognized. There is here, as there, another State which is seeking to make representations on the territory's behalf to the Court. There is here, as there, an objection taken to the locus standi of the Applicant.
A vital difference is that here, unlike there, the Applicant State has a direct nexus with the Territory and enjoys direct recognition by the United Nations of its particular status vis-à-vis the Territory. The position of the Applicant State is thus stronger in the present case than the position of the States whose locus standi was accepted by half the judges of the Court in the South West Africa Judgment (ibid.), and, indeed, by the majority of the judges in the earlier phase of that case (South West Africa, Preliminary Objections, Judgement, I.C.J. Reports 1962, p. 319).
[pp. 255-256 D.O. Skubiszewski] 101. In this case there is a conflict of legal interests between Portugal and Australia. Several times during the proceedings Australia admitted that Portugal was one of the States concerned. That admission was made in order to contrast it with the capacity to appear before the Court in this case, which Australia denied. However, to havejus standi before the Court it is enough to show direct concern in the outcome of the case. Portugal has amply shown that it has a claim for the protection of its powers which serve the interests of the people of East Timor.
102. It was said by a Co-Agent and counsel of Australia that "to have standing, Portugal must point to rights which it possesses" (CR 95/8, p. 80, Mr. Burmester). Portugal has standing because, in spite of all the factual changes in the area, it still remains the State which has responsibility for East Timor. This standing follows from the competence Portugal has in its capacity as administering Power. One of the basic elements of that competence is the maintenance and defence of the status of East Timor as a non-self-governing territory; this is the administering Power's duty. Portugal has the capacity to sue in defence of the right of the East Timorese people to self-determination. Portugal could also rely generally on the remaining attributes of its sovereignty over East Timor, such attributes being conducive to the fulfilment of the task under Chapter XI of the Charter. On the one hand, Portugal says that it does not raise any claim based on its own sovereign rights; in some contexts it even denies their existence (Memorial, paras. 3.08 and 5.41, and Reply, para. 4.57). On the other hand, Portugal invokes its "prerogatives in regard to sovereignty" (Reply, para. 4.54). At any rate, it is erroneous to argue that the departure from East Timor in 1975 of the Portuguese authorities resulted in bringing "to an end any capacity [Portugal] had to act as a coastal State in relation to the territory" (Counter-Memorial, para. 237). Such an opinion is contrary to both the law of belligerent or military occupation and the United Nations law on the position of the administering Power.
103. Portugal may be said not to have any interest of its own in the narrow sense of the term, i.e., a national interest, one of a myriad of interests which States have as individual members of the international community. However, Portugal received a "sacred trust" under Chapter XI of the Charter. It is taking care of interests which, it is true, are also its own, but primarily they are shared by all United Nations Members: the Members wish the tasks set down in Chapter XI to be accomplished. Australia also adopts the stance of favouring the implementation of Chapter XI. Yet there is a sharp difference between the two States on how to proceed in the complex question of East Timor and what is lawful in the circumstances. That is a matter which should have been decided by the Court. However, through its decision on jurisdiction, this distinguished Court barred itself from that possibility. Had this not been the case, the Judgment would have eliminated a number of uncertainties from the legal relations between the Parties and, more generally, some uncertainties regarding a non-self-governing territory which has been incorporated into a State without the consent of the United Nations. At any rate, it is clear that an actual controversy exists. What doubt could there be regarding the locus standi?
(NB: Above article not written by Dr Tumasang)
Date: Sun, 3 Feb 2013 02:20:44 -0800 From: denatem@yahoo.com Subject: WHAT IS THE STATUS OF FORMER TRUST TERRITORIES BEFORE THE ICJ? To: ambasbay@googlegroups.com CC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.com Dear Chief A. Taku,
Leaving all of these issues about Bakassi aside, something of interest keeps coming to my mind. It is this question: what is the status of former trust territories before the ICJ? Is there any way a former trust territory can acquire a locus before the ICJ? I have done no research on this issue and do not know whether the international community was so self-conscious of its evil schemes that it simply decided to prevent former trust territories from having any locus before the ICJ. One would think that common sense would have dictated that these territories be given a status before the ICJ to raise issues concerning how the trust territories were managed by their various Administering Authorities and other false claims, like that of Republique du Cameroun. Please I would like anyone who has done any research on this matter to enlighten us, and me in particular.
Atemnkeng.
From: Chief Charles A.Taku <charto_us@yahoo.com>
To: ambasbay@googlegroups.com
Cc: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>; "camnetwork@yahoogroups.com" <camnetwork@yahoogroups.com>
Sent: Sunday, February 3, 2013 1:57 AM
Subject: RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria (addition)
| Dr, Permit me to respectfully suggest that we suspend any further argument on this matter. I have reviewed past and pending ICJ cases and have not found one that fits squarely the legal arguments you are forcefully making. Lest you forget, with regard to the Bakassi occupation which the arguments relate Nigeria was also an occupying power like La Republique du Cameroun with the same legal obligations towards the population of the Southern Cameroons. Even with the judgment of the ICJ as it stands, La Republique du Cameroon still negotiated and signed the Greentree Agreement. It has gone further to sign another agreement, on the sharing of the resources of Bakassi with Nigeria. That is the reality on the ground. Government Achu rightly pointed out that the so-called land deal with Harackles or so it is called is not a treaty in international law. By selling of the land, La Republique is not protecting the interests of Southern Cameroonians. It is violating; just as signing off the oil reserves of Bakassi with Nigeria a co-occupation power. You have raised a number of arguments which may apply in international human rights law where even without a showing of interest a third state under certain circumstances may bring action against another for gross human rights violations on its territory. Lest we forget, action at the ICJ and most other International courts is predicated on consent and in some cases on the doctrine of forum prorogatum. A reading of the Statute of the ICJ and its Rules of Procedure and Evidence make strict provision on the standards of pleadings accepted to the Court. Interest is no doubt one of the factors that may confer jurisdiction but where there is an expressed provision of the UN Chartered baring jurisdiction on a particular cause of action, there is no way the ICJ can entertain the action. In both La Republique and Nigeria during the dictatorships of Babangida and Abacha they had what they called ouster clauses. No court in La Republique and Nigeria then will entertain action on a matter where jurisdiction is expressly ousted by an ouster decree. No court in La Republique will grant access or confer jurisdiction on any matter no matter the sufficiency of interest where an express provision of the Law has ousted Jurisdiction. With every one holding to their position on this matter, let us leave it where we are. Before I sign off, let me state that the gravamen here is about suing to protect the interest of Southern Cameroons. That is to say, the Hague Regulations and the 4th Geneva Conventions on which you based your argument do not extend to the new factors you have cited to establish a purported proof of sufficient interest for a grant of access. These factors concern territorial claim and no longer the protection of the rights of Southern Cameroons as an occupied territory. . In other words, you may be construed to mean that La Republique may go round the express provsions of the UN Charter to lay territorial claims to the territory of SouthernCameroons as an occaption power. Chief C.Taku
From: Tumasang Martin <tumasangm@hotmail.com>
Subject: RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria (addition)
To: "ambasbay@googlegroups.com" <ambasbay@googlegroups.com>
Cc: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>, "camnetwork@yahoogroups.com" <camnetwork@yahoogroups.com>
Date: Saturday, February 2, 2013, 1:52 PM
Dear Mola, the issues involved although legal in nature are not recondite and fairly simple. To have a locus standi to sue Nigeria, La republique du Cameroun has to show a nexus, connection, interest in Bakassi that gives it the locus standi. "Joining" with a union treaty and satisfaction of UN Articles 101, 102, 103 is one in many ways that it can show its interest in Bakassi and get a locus standi to sue. Failure of the above, it can show its interest for example as an occupying power satisfying its obligations in international occupation law to govern and protect the property of the occupied territory hence it would have a locus standi to sue on behalf of the occupied people of Southern Cameroons. It does not matter if the occupation is legal or not. It is a de facto situation of whether its troops are in the territory and if it has control of the territory. International occupation law can give it the locus standi to enter international agreements on behalf of Southern Cameroons, sign treaties in some limited situations on behalf of Southern Cameroons, and sue a third party trespasser on behalf of Southern Cameroons. It can have a locus standi using all the other methods I listed in my other mail. It is like Obama. To be President, he needs 270 delegates. He might get them by winning Ohio. If he fails to win Ohio, he might get them by winning Florida or other combinations. Any combination that takes him to 270 is enough. No need concentrating on the winning of Ohio (i.e. joining as per UN resolutions and union treaty). Other avenues can lead him to same results. Locus standi can be gotten using different means even without union treaty and without satisfying UN Resolutions 101, 102, and 103. Regards Tumasang
Date: Sat, 2 Feb 2013 19:15:05 +0100 Subject: Re: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria (addition) From: njohl42@gmail.com To: ambasbay@googlegroups.com CC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.com Dear Dr Tumasang I fear that I am not the wiser in these legal exchanges. The UN Charter which has established the ICJ bars any consideration by the ICJ concerning territory which any member state of the UN claims it has subsequently acquired without complying with the statutory modalities for joining. The reason for this is simply that any sovereign state is admitted a member of the UN with its territorial boundaries clearly defined at its independence, and any alteration of those boundaries is a matter for the UN to know and protect in case of dispute. Of course, any member state of the UN has locus to cite any other member state at the ICJ which is specially created to settle inter-state disputes. During the hearing, Nigeria which was in occupation in Bakassi was asked by the Court if Bakassi was part of the entity called Nigeria when Britain granted it independence on 1 Oct 1960. Nigeria replied in the Negative. Had the Court exercised the same degree of due deligence, and posed the same question to plaintiff Cameroun, it would have received the same reply, for Bakassi was not part of the Cameroun that was before the Court, when that country attained independence on 1 Jan 1960, even before Nigeria did. It would then have become obvious that Bakassi did not belong either to Nigeria or to the Cameroun that had sued, and the Court would have refused to entertain the matter because in the absence of a Union Treaty with Southern Cameroons where Bakassi is located, hearing the matter was in violation of the UN Charter Art. 102. The Judgment was that Bakassi is "Cameroonian," when in fact the Cameroun that sued Nigeria had never had Bakassi as part of its territory at independence and there has been no subsequent Treaty of Union between Republic of Cameroun with Southern Cameroons. Happily for Southern Cameroonians, Dr Kevin Ngwang Gumne and eleven other gallant Southern Cameroonians, for themselves and for the People of Southern Cameroons, sued Nigeria at its Federal High Court in Abuja, seeking a Court Order compelling Nigeria, by virtue of obligations assumed under the African Charter Art 20(3), to lend support to the People of Southern Cameroons who had not yet attained independence, and to take the question of their (SC) independence before the ICJ and or the UN, and indeed to any other international body, and to ensure deligent prosecution to finality. The end result of the litigation was that the learned Chief Judge of the Federal High Court in Abuja issued Orders that: "1. The Federal Republic of Nigeria shall institute a case before the International Court of Justice concerning the following, etc. etc. .... "2. The Federal Republic of Nigeria shall take any other measures as may be necessary to place the case of the Peoples of the geographical territory known as at 1st October 1960 as Southern Cameroons for self-determination, before the United Nations General Assembly and any other relevant International organizations." We are currently in the process of instructing eminent lawyers to enforce the judgment that was clearly in our favour, but we are handicapped by lack of resources to meet their professional fees and disbursements, currently estimated at circa 100 million f/cfa - a small prize to pay for independence. There must be at least 100 Southern Cameroonians both within and without the territory who could donate 1 million frs each to save our fatherland. There may be other options, but the above seems to be practical and doable in 2013. Best regards Mola. Chief, I have had the opportunity to read your contribution twice and though most of what you say is correct, it goes too much on the merits of the case. We are merely talking here about the right to sue under one pretext or another. For example, you said the legality of the occupation will be called in question. In international occupation law, the definition of occupation and the rights and obligation that come with it is not anchored on legality. An army forcefully taking control of a foreign territory cannot be claiming legality in most cases except perhaps in the few cases where there is a UN Resolution to invade. Occupation is an issue of de facto situation on the ground and not peripheral niceties of legality. If a neighbouring country decides to forcefully take over parts of West Bank or Gaza and Israel as the occupying power decided to bring a case in the ICJ on behalf of the Palestinian people, I would be surprised if the case is simply thrown out for lack of locus standi particularly considering Israel's historical connections or nexus and interest in the occupied territories, and also if it claims it is suing on behalf of the Palestinians who are not members of the UN at the moment. I sincerely think the issue of La Republique du Cameroun lacking locus standi to sue Nigeria in Bakassi is wishful thinking and we should forget about it. So many facts point to the existence of such locus standi. This should not be CONFUSED WITH THE MERIT OF THEIR CASE FOR OCCUPYING SOUTHERN CAMEROONS. Regards Tumasang
From: tumasangm@hotmail.comTo: cameroon_politics@yahoogroups.com; ambasbay@googlegroups.comCC: camnetwork@yahoogroups.comSubject: RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria Date: Fri, 1 Feb 2013 23:55:34 +0000 Dear Chief, greetings of the season. You are correct that the pleadings must state the basis on which the occupying power is suing. We were not talking of what La Republique did but what is theoretically possible. Despite fitting the description of an occupying power, La Republique du Cameroun will not like to plead in that manner hence will look for alternative approach but because the former is impossible, but because it is ambarassing to admit. It is an obligation of an occupying power to protect the property of the occupied territory. I think it would be ironical if one has the obligation to protect property then at the same time cannot sue a third party trespasser on the same property. What kind of protection would that be. Does it mean this particular obligation in International Occupation Law sanctions the use of force only as a means of protection without giving the occupying power the right to sue a third party trespasser on behalf of the occupied territory?. Chief, I think that if an occupying power sues on behalf of the occupied in the ICJ it would be accepted. In fact Southern Cameroon has been looking for a member state to take its case to the ICJ. If a member state without any serious nexus can take such a case, how more of an occupying power that is in possession and control? Chief, anyhow you look at it, La Republique can still find ways to have a locus standi to sue Nigeria on Bakassi. The case that it has no locus standi has never been convincingly made. It has obligations under international occupation law to fulfil, it has historical nexus and interest, it has UN resolutions talking about joining, it has a de facto joining on the ground, it has Southern Cameroonians in its parliament etc etc. Anyway I look at it, La Republique du Cameroun has a locus standi to sue Nigeria in Bakassi. Regards Tumasang The main point I wanted to make was that as occupying power or as trespasser, you have certain obligations and rights that the law recognises.
To: ambasbay@googlegroups.comCC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.comFrom: Charto_us@yahoo.comDate: Fri, 1 Feb 2013 15:28:03 -0800 Subject: [cameroon_politics] RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria | The pleadings must disclose that the action is brought to protect the interest of the occupied territory and not to foster the objectives of the occupation. Furthermore, the occupation status of the occupation power must be pleaded. In order words it must plead that the matter was brought under the provisions of the Hague Regulations and the Fourth Geneva Convention. And that is where the real battle begins. The rationale for the occupation becomes an issue in the case. If the case is intended to foster a manifestly illegal objective like perpetuate the occupation, it will simply not stand. In the case at bar the colonial power violated the UN Charter , preremptory norms of general international law and other rules of jus cogens and has since maintained and sustained its colonial rule by the use of force,and plundering the resources of the colonial territory. A case like this will not succeed. Crawford, Creation of States in International Law Second Edition P134. The argument of La Republique du Cameroun having the locus standi as an occupying power to sue exists purely for the limited purpose of determining jurisdiction and not neccessarily for determining state responsibility See article 2 of the UN charter, Can it in such circumstances purport to sue to protect the interest of the colonial, call it occupied territory? The answer, I suggest, is in the negative The matter in issue is predicated on what in international law is called state responsibility. State responsibility first and foremost imposes certain obligations on the occupying power to comply with certain international norms,and this includes its UN charter obligations. In other words, if the occupying power claims that the occupied territory has become part of its territory as a result of a treaty, it must in filing its action plead and prove that treaty. It is conceded that " the jurisdiction of a state may extend beyond its national territory, like the case at bar. It may not matter if the occupation is legal in international law or illegal. The European Court on Human Rights citing the ICJ has recognized that international law recognizes certain legal arrangements in such situations, the effects which can only be detrimental to the inhabitants of the territory . See Loizidou Vs Turkey, See also Advisory Opinion on the legal consequences for states of the continued presence of South West Africa in Namibia ( S.W Africa) notwithstanding security council resolution 276 (1970) ICJ Reports 1970 16 at 56 para.125. For similar reasons, the human rights obligations of the state illegally occupying foreign territories should extend to such territories under occupation; Any other solution would deprive the population under occupation from the protection of human rights instruments,for the sole reason of that being that the occupation is illegal under international law,which would be highly paradoxical. See International Human Rights Law Clivier De Schutter Cambridge 2010. What would be determinative for the existence of jurisdiction is effective control rather than formal existence of soveriegnty. See ICJ, Legal consequences of the construction of wall in the ocupied Palestine Territory, Advisory Opinion ( 9 July 2004 ICJ Reports 2004,136 Paras. 107-13. This position at law clearly is to protect the rights of the people of the occupied teritory under occupation from the occupying occupying power and other forces within the occupied territory. . Whether they afford a right to the occupying territory to perpetuate the occupation through legal action at the ICJ against third party occupying states or seeking to occupy is seriously in doubt. Indeed, it has first to put the legality of its occupation in issue. The cases of the former Yugoslavia at ICTY and at the ICJ have proved the difficulty in occupying territories using the mechanism of international courts to perpetuate their illegal occupation on the occupied territory. I think that in the conduct of the case Nigeria can validly plead and challenge the terms of the occupation. In this regard, Nigeria may plead and prove that rather than being an occupation power simpliciter, La Republique du Cameroun is laying claims to the territory arguing that Southern Cameroons became part of her territory because of a purported union which she can not prove to exist. For this reason, the two positions are not neccesarily inconsistent to the extent that an action no matter how framed will bring both arguments to the table. In each case, La Republique will have a significant legal hurdle o surmount. --- On Fri, 2/1/13, Tumasang Martin <tumasangm@hotmail.com> wrote:
From: Tumasang Martin <tumasangm@hotmail.com>
Subject: RE: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria
To: "ambasbay@googlegroups.com" <ambasbay@googlegroups.com>
Cc: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>, "camnetwork@yahoogroups.com" <camnetwork@yahoogroups.com>
Date: Friday, February 1, 2013, 4:06 PM
Hi Mola, greetings of the season. You have been missing in action for sometime. In the conclusion of my write with above heading, I said "theoretically", La Republique can sue. On the Bakassi issue, it would not be mere common law that operates but international law and various other considerations come in place. I refer you to the below article I wrote sometime ago. It is a bit long but it gives you La Republique du Cameroun's status in Southern Cameroons i.e. an occupying power and the obligations of an occupying power to enter international agreements or sign treaties on behalf of the occupied. Of note is that Article 64 of the Fourth Geneva Convention (GCIV) gave the occupying power a very broad grant of authority over an occupied territory. An interventionist approach to the affairs of the occupied territory is now generally considered. Article 43 of The Hague Regulations (THR) is now generally interpreted broadly to allow the occupying power to fulfil its duties under occupation law, such as the administration of the occupied territory for the benefit of the local population, security etc. It is my opinion that following International Occupation law, and mindful of the obligations placed on the occupying power by Article 64 of the fourth Geneva Convention and Article 43 of the Hague Regulation, to administer an occupied territory, the occupying power has the locus standing to sue on behalf of the occupied a trespasser on the territory it is administering. La Republique du Cameroun as a member of the United Nation and as occupying power in Southern Cameroon, can sue Nigeria in the ICJ notwithstanding the lack of a union treaty. Locus standi is a matter of interest and not a matter of the merits of one's case. La Republique du Cameroun has enough interest in Bakassi either as a purported part of its territory (weak case without union treaty deposited in the UN) or as an occupying power in possession in Southern Cameroons. The weakness of its case not withstanding, the interest is enough to allow it to sue at the ICJ. Regards Tumasang. (Below is the article referred to) INTRODUCTION Southern Cameroons is a former UN trust territory that was supposed to be independent but today there is no modicum of self-government in the territory. The contiguous state of La Republique to Cameroon is in absolute control of the territory and entering into international agreements with third parties such as Herakle Farms and the Roundtree Agreement with Nigeria.
It is germane to look at the status of Southern Cameroons in International Law and the legality of various actions of La Republique du Cameroun in the territory. This has been addressed by formulating various issues and trying to find an answer to them. 1) CAN LA REPUBLIQUE DU CAMEROUN CLAIM TITLE TO ANY LAND IN SOUTHERN CAMEROONS WITHOUT THE ISSUE OF SOVEREIGNTY OVER SOUTHERN CAMEROON BEING RESOLVED? The land law operating in Southern Cameroons and Nigeria is generally derived from Common law, Statute and customary law. As per the Municipal law, there are generally five ways in which ownership/title to land may be proved. They are: 1. Proof of traditional evidence; 2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilizing the land beneficially, such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner; 3. Proof by production of document of title which must be authenticated; 4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done; 5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute.
(i) Amajideogu v. Ononaku (1988) 2 NWLR (Pt.78) p.616; (ii) Piazo v. Tenalo (1976) 12 SC p. 31; (iii) Idundun v. Okumagba (1976) 9 - 10 SC p.224; (iv) Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt.5) p.41. Summary It therefore follows that La Republique du Cameroun as a legal entity, whether a foreign or domestic entity, whether in armed occupation or not of Southern Cameroon, if they can use one of the above methods to proof title to any land in Southern Cameroon such as the Herakle Farm lands, then their title is valid and hence La Republique du Cameroun can assign, convey or deal with the titled land as they deem fit. If La Republique du Cameroun can show that they have acquired title to the Herakle farm lands under municipal laws, they can validly give a lease to Herakle farms for 60 years or other term of years even if the sovereignty issue of Southern Cameroons has not been settled. In terms of Municipal law, the question should not be whether La Republique du Cameroun can validly acquire the Herakle farm land which empowers them to assign it to Herakle farms. The question should be whether La Republique du Cameroun has acquired the title to the lands before giving a lease of 60 years to Herakle farms. This question is a factual issue and only the facts on the ground can tell the actual story. CAN HERAKLE FARMS TAKE ACTION ON THE HERAKLE FARM LANDS WITHOUT CONSIDERING THE INTEREST OF NDIAN PEOPLE?. Even if La Republique du Cameroun has acquired tile on the Herakle farm lands, it does not mean that this title is "absolute" or totally unfettered. The indigenous people might still have various interests and rights on the land that has to be protected. In International law as concerns indigenous peoples, their rights are protected in the "United Nations Declaration on the Rights of Indigenous Peoples. I draw attention to the following Articles of the above Declaration that deal with Indigenous Peoples such as the Ndian people and their rights:
Article 8 (1): Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
Article 10: Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous people concerned and after agreement on just and fair compensation and, where possible, with the option to return.
Article 17 (1): Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour laws.
Article 17 (2): States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education.........
Article 26(1): Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Article 26 (2): Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
Article 26 (3): States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 29 (1): Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programs for indigenous peoples for such conservation and protection, without discrimination.
Article 32: Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. Summary It therefore follows that Herakle farms cannot take any actions on the lands without consulting or taking the interest of the indigenous people of Ndian into consideration. Any such action might be a breach of International law. AS PER INTERNATIONAL LAW IS SOUTHERN CAMEROON OCCUPIED BY LA REPUBLIQUE DU CAMEROUN? It is germane to first consider if Southern Cameroon is occupied by the Contiguous state of La Republique du Cameroun. Is it concubinage or occupation?. Can concubinage be occupation at the same time?. How does International Law define Occupation and does it apply in the case of Southern Cameroon?. Is it correct to label La Republique du Cameroun as an "occupier of Southern Cameroon" or is it a matter of just tarnishing its image?. The only treaty definition of occupation is that of Articles 42 and 43 of the Hague Regulations. The Fourth Geneva Convention does not contain a definition of its own. In accordance with Article 42 of the Hague Convention, a territory is considered occupied when it is actually placed under the authority of the hostile army. The BIRs and Gendarmes in Southern Cameroons who are mainly made up of citizens of La Republique du Cameroun appears to perfectly fit the description of a "hostile army" despite the fact that one or two Southern Cameroonians are dotted sparsely within its ranks. The French version of Articles 42 and 43 clearly captures the essence of occupation. Article 42. Un territoire est considéré comme occupé lorsqu'il se trouve placé de fait sous l'autorité de l'armée ennemie. (…) Article 43. L'autorité de pouvoir légal ayant passé de fait entre les mains de l'occupant … The above clearly shows that occupation is not about legal niceties of "joining or non joining" as per UN Resolution 1601. The power of the occupying power or state is a matter of de facto capability, not a legal authority. The reality on the ground is more important and the legal paperwork to decide if a state is under occupation or not. For there to be occupation, two criteria must be satisfied: - The former government has been rendered incapable of publicly exercising its authority in that area;
- The occupying power is in a position to substitute its own authority for that of the former government."[1]
In terms of Southern Cameroons, the former government was dissolved by Ahidjo hence rendering it incapable of publicly exercising its authority in the territory by virtue of dissolution. Secondly, La Republique du Cameroun has substituted its own authority for that of the former government of Southern Cameroons by appointing, Governors, District Officers, Government Delegates etc. who are mostly citizens of La Republic du Cameroon to exercise authority over the territory of Southern Cameroons.
Does lack of force stop classification as occupied territory? There have been many occupations in history. Some by force and others peacefully either due to consent or due to fear of overwhelming force. Czechoslovakia was invaded and occupied without military resistance and before the outbreak of war, not as a consequence of war. On the other hand, Denmark, was invaded and occupied in a war period but did put up only de minimis military resistance to the invasion. The above shows that Southern Cameroons can still be classified as an occupied territory even if there was no military resistance at the onset of occupation by La Republique du Cameroon. Summary Based on the above, the legal position is that Southern Cameroon is under occupation by La Republique du Cameroon despite the fact that there was no military resistance at the onset of the occupation. IF LA REPUBLIQUE DU CAMEROUN IS THE OCCUPYING POWER IN SOUTHERN CAMEROON, DOES IT HAVE THE LEGAL RIGHT TO ENTER INTERNATIONAL TREATIES OR INTERNATIONAL AGREEMENTS SUCH AS THE HERAKLE FARM AGREEMENT OR THE GREENTREE AGREEMENT? Article 64 of the Fourth Geneva Convention (GCIV) gave the occupying power a very broad grant of authority over an occupied territory. An interventionist approach to the affairs of the occupied territory is now generally considered. Article 43 of The Hague Regulations (THR) is now generally interpreted broadly to allow the occupying power to fulfill its duties under occupation law, such as the administration of the occupied territory for the benefit of the local population, security etc. Also, an interventionist approach might be allowed in international law due to the doctrine of necessity, including military, legal and material necessity. Despite the interventionist approach being allowed, the occupying power has limited ability to enter in treaties on behalf of the occupied territory. In theWimbledon case[2]at the Permanent Court of International Justice, it was held that "the conclusion of treaties was precisely one of the attributes of sovereignty". By virtue of the fact that the occupying power had no sovereign title over the occupied territory, it follows from this jurisprudence that the occupying power cannot enter into treaty relationships on behalf of the occupied territory. As per international law, whilst sovereign States can conclude treaties, the occupying power would need a norme habilitatrice (enabling rule) to do so on behalf of the Occupied State but international occupation law does not provide for such an enabling rule. Situations where an occupying power entered into a treaty on behalf of the occupied territory is far and few between but the situation of Switzerland appears to be a case in point. A document from its Foreign Affairs states: "L'Accord entre la Suisse et l'Irak sur la garantie des risques a l'exportation a été approuvé par le Conseil fédéral. Dans ce contexte, la question se pose de savoir si l'Autorité provisoire de la coalition est bien compétente pour conclure, au nom de l'Irak, des accords internationaux. En droit international, le principe est qu'un État occupantdispose du pouvoir légal dans le pays qu'il occupe (article 43 de la Convention de La Haye de 1907). Cela signifie en particulier que la puissance occupante peut promulguer des lois ou conclure des accords internationaux au nom de l'État occupé". It is submitted that this cannot be used as a justification for the occupier entering into treaties on behalf of the occupied. However, if the treaty is necessary for the administration of the occupied territory, the occupier might be justified in signing the treaty. The occupied territory could not be administered in a vacuum and without any international connections and in cases of long occupation, the need for the occupier to sign treaties might be justified in International Occupation Law. In the case of Southern Cameroons, taking cognizance of the Roundtree agreement, mindful of the border demarcation between Southern Cameroons and Nigeria, at the end of it, would it be legal for La Republique to enter into a treaty with Nigeria in relation to the Southern Cameroons border?. My opinion is that considering the prolonged nature of the occupation so far and the need to administer Bakassi and other coastal area with a knowledge of the extend of the territorial and land boundaries involved, La Republique du Cameroun might be justified in International law in entering into a treaty with Nigeria on behalf of Southern Cameroons. The reason for entering the treaty is very important in order to determine its legality. International Agreements such as that with Herakle Farms for a 60 years lease of 70,000 hectares of highly sensitive land. Article 43 of the Hague regulations puts an obligation on the occupying power to maintain order and civil life. The key issue is meeting the obligations and not the procedure to meet them. In order to maintain civil life in an area, the occupying power might be obliged to enter into international agreements with third parties such as Herakle farms. The International Covenant on Economic, Social and Cultural Rights (ICESCR) during occupation recognizes the right to work, for instance, and this might require the occupying power to draw up and implement development strategies that would bind the occupied territory's economy for a long time although prima facie this might appear to be contrary to International Occupation Law which is inherently conservative and short term focused.
According to the terms of the ICESCR, this essential minimum standard must include, in particular, adequate food, clothing and housing, as well as the continuous improvement of living conditions in the occupied territories. The ICESCR also recognized "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". These obligations on the occupying power might force an occupier like La Republique du Cameroun to enter into international agreements with a third party such as Herakle farms.
Transformative occupation is an operation whose main objective is to overhaul the institutional and political structures of the occupied territory. There is no basis in International Occupation law for such occupation since the occupier has not acquired any sovereign rights over the occupied territory, hence it would not be entitled to bring about changes in the occupied territory or to undertake reforms that could not be reversed by the legitimate government once the occupation was over.
If Herakle Farms are allowed to go ahead, and in the event that the occupation of Southern Cameroons ends, it would be impossible to replace the 70,000 hectares of cleared forest hence the transaction is part of Transformational Occupation which has no justification and illegal under International Occupation Law. Conclusion Even without the sovereignty issue of Southern Cameroon resolved, La Republique du Cameroon as any other legal entity that can sue and be sued can claim title to various lands in Sothern Cameroons provided they can use one of the five acceptable ways of proving title. If they prove title to any land such as the Herakle Farm land, they can assign, convey or dispose of it to whoever as they deem fit. As per International Occupation Law, Southern Cameroons qualifies to be classed as an "Occupied Territory". If Herakle Farms takes actions on Ndian lands without considering the interest of the indigenous people, then they are breaking international law as it concerns indigenous people. Even as an occupying power in Southern Cameroons, in fulfillment of their obligations under Article 43 of the Hague Regulations as occupying power, La Republique can sign International Agreements on behalf of Southern Cameroons with Herakle Farms and if necessary for the proper administration of Southern Cameroons and considering the long nature of the occupation, can in some rare situations sign International Treaties on behalf of Southern Cameroons. Considering the scale of the Herakle Farms project, and considering the irreversibility of the clearing of the forest, the transaction can be considered as part of "Transformative Occupation" which is not justified and illegal in International Occupation Law. Based on this consideration, the whole Herakle Farm project might be illegal in International Occupation law.
Date: Fri, 1 Feb 2013 20:41:51 +0100 Subject: Re: La Republique du Cameroun as trespasser in possession of Southern Cameroon's right to sue Nigeria From: njohl42@gmail.comTo: ambasbay@googlegroups.comCC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.com Dear Dr Tumasang I have read with great interest your opinion that La Republique du Cameroun, even as trespasser over Southern Cameroons territory, could validly sue Nigeria in court for intrusion into Bakassi which is located in Southern Cameroons which is currently under illegal occupation by La Republique du Cameroun. That may well be so if the two trespassers are located within the same jurisdiction, whereupon the Court will then have to determine which of the two trespassers has prior occupational rights. In the instant case however, the ICJ is a special international Court established under the UN Charter, specifically to try disputes between any two member states of the UN. The Charter provides in Art. 102 the joining procedure to be followed if any member state of the UN (as La Republique du Cameroun was when it commenced litigation against Nigeria), wishes to join another territory. The Article provides that the two parties contemplating a Union should execute a written and signed Agreement embodying the terms of the contemplated union, and file a copy of the Agreement at the UN Secretariat for publication concerning the new boundaries of the new state. Sub-section 2 of the same Article states that failure to comply with the statutory requirements of sub-section (1), renders the Agreement invalid, and such an Agreement cannot be cited before any of the six organs of the United Nations, one of such organs being the International Court of Justice. I am inclined to the view that as LRC which graduated to independence on 1 Jan 1960 with clearly defined international boundaries, applied and was admitted a member of the UN on 20 September 1960, it became bound by the provisions of the Charter, particularly Art. 102. The exercise of sovereign authority over the territory of Southern Cameroons is a blatant act of imperial annexation of Southern Cameroons by LRC. The so-called "union" between LRC and Southern Cameroons, without a signed Treaty of Union, duly filed at the Secretariat of the UN so that it could be publicly verifiable, violates the UN Charter and is an unconstitutional act and so cannot be cited before the ICJ which is one of the six UN organs. My view therefore is that LRC lacked the capacity to take the Bakassi dispute to the ICJ by not disclosing the notorious fact that subsequent to its independence on 1 Jan 1960 when its territorial boundaries became immutable, and it was admitted a member of the UN on 20 Sept 1960, there has been no Treaty of Union with Southern Cameroons to enable LRC to speak before the ICJ as if Southern Cameroons was an integral part of its territory. LRC therefore secured judgment under fraudulent misrepresentation by hiding from the Court the notorious truth that it came before the ICJ as the country which had attained independence on 1 Jan 1960 as La Republique du Cameroun which did not include Southern Cameroons as part of the state which was subsequnetly admitted into the UN on 20 Sept 1960. I would welcome your learned observation as to whether LRC was competent to sue Nigeria concerning the territory of Bakassi which is indisputably located in Southern Cameroons, in the absence of a signed Treaty of Union with Southern Cameroons, duly filed at the UN Secretariat. So to do would be using a subsidiary organ of the UN (i.e. the ICJ) to violate a provision of the governing UN Charter. Accept my most humble regards Mola
On Thu, Jan 31, 2013 at 10:03 AM, Tumasang Martin <tumasangm@hotmail.com> wrote: Sometime ago, I tried to convince my brother Louis that theoretically, La Republique du Cameroun even as a Trespasser in Southern Cameroons, since they are in possession and full control of the territory, as trespasser in possession, they have the legal right to sue a third party like Nigeria against trespass on the land unless Nigeria can show they have better rights than La Republique du Cameroon or they can show evidence that they are a trespasser in possession and not La Republique du Cameroon.
Both parties cannot sue Southern Cameroons for trespass since we are the bonafide title owners of the land. I could not convince Louis and said we should agree to disagree until when I can get a case that clearly states the issue. I tried to avoid British or American cases and looked for local Cameroonian or Nigeria cases since the local/customary/municipal laws are similar. I hope the below case/cases will put the outstanding issue between me and him to rest. i.e. that a trespasser to land who is in possession can sue another trespasser who comes to disturb his possession and enjoyment of the trespassed land. It is like a squatter or trespasser suing someone (subsequent potential squatter or trespasser not the owner) who comes to disturb him. As reprehensible as this might sound, it is the law. In Omotayo v. Co-operative Supply Association (2011) Vol. 202 LRCN , the judge said "Where a plaintiff has failed to prove title to land, it may be necessary to consider evidence of possession in order to ascertain whether he is in any event entitled to damages and injunction claimed for trespass, if it is shown that he was in possession which was disturbed. This is on the basis that trespass is essentially an issue of who is in possession. A person who is in possession of land even as a trespasser can sue another who thereafter comes upon the land unless that other is the owner or shows some title which gives him a better right to be on the land. There is cogent evidence that the respondent was in possession of the land in dispute and therefore can sue without asking for declaration".
Other cases that support the above point are as follows:
(i) Oluwi v. Eniola (1967) NMLR 339;
(ii) Kareem v. Ogunde (1972) 1 ALL NLR (Pt.1) 73; (iii) Amakor v. Obiefuna (1974) 1 ALL NLR 119; (iv) Oduola v. Nabhan (1981) 5 SC 197; (v) Aromire v. Awoyemi (1972) 2 SC 57; (1972) 1 All NLR (Pt.1) 101. (vi) Adesanya v. Otueh (1993) 1 SCNLR pg. 77; (vii) Jodi v. Salami (2009) ALL FWLR (Pt 458) 385; (viii) Ekpo v. Uyo (1986) 3 NWLR (Pt.26) pg.63. Conclusion Theoretically, La Republique du Cameroun as trespasser in possession in Southern Cameroons can sue a third party trespasser like Nigeria who comes later and tries to disturb his quiet enjoyment of the trespassed land such as exploitation of its mineral and oil and gas resources. Its hands are tied only in relation to Southern Cameroons people and/or government.
Regards Tumasang
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