Re: WHAT IS THE STATUS OF FORMER TRUST TERRITORIES BEFORE THE ICJ?

Gerald, I agree with you as well as to our only Professor Carlson
Anyangwe. The time for talking is over because time waits for no one

Aaron

On 2/4/13, Gerard Best <gebesst@yahoo.com> wrote:
> I do not think that this case, with any kind of favorable ruling cannot
> liberate the Southern Cameroons. The key to the liberation of the Southern
> Cameroons
> is the Southern Cameroonians themselves. If we do not act, do not expect any
> other country in the world to act for us and liberate the Southern
> Cameroons
> for us. Read the history of most countries in the world. The people took it
> upon themselves send away the colonizer. If we are not ready to liberate
> ourselves,
> then we should stop writing all this on the Internet. We are better than
> this. Outside help is needed from friendly countries but not before we get
> started.
> As Prof. just said, we should stop "bemoaning Nigeria's inaction," after
> all, Nigeria was not responsible for our problems. As said, our situation
> must be in
> our own control, and everybody must be on board. That is what is needed from
> all Southern Cameroonians. We have to go forward.
>
> GB
> International Affairs Expert
>
>
>
> ________________________________
> From: "carlany2001@yahoo.com" <carlany2001@yahoo.com>
> To: ambasbay@googlegroups.com
> Cc: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>;
> "camnetwork@yahoogroups.com" <camnetwork@yahoogroups.com>
> Sent: Monday, February 4, 2013 12:14 PM
> Subject: Re: WHAT IS THE STATUS OF FORMER TRUST TERRITORIES BEFORE THE ICJ?
>
>
> We keep on bemoaning Nigeria's inaction. We can keep on moaning till the
> cows come home. That will avail us nothing. We must bear our own cross and
> take necessary measures to secure our liberation from colonial captivity.
> Prof
> Sent via my BlackBerry from Vodacom - let your email find you!
> ________________________________
>
> From: "Chief Charles A.Taku" <charto_us@yahoo.com>
> Sender: ambasbay@googlegroups.com
> Date: Mon, 4 Feb 2013 01:29:48 -0800 (PST)
> To: <ambasbay@googlegroups.com>
> ReplyTo: ambasbay@googlegroups.com
> Cc: cameroon_politics@yahoogroups.com<cameroon_politics@yahoogroups.com>;
> camnetwork@yahoogroups.com<camnetwork@yahoogroups.com>
> Subject: RE: WHAT IS THE STATUS OF FORMER TRUST TERRITORIES BEFORE THE ICJ?
>
> 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 standingas an Applicant State inthis
>> 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 ofits 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 ofits 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 ofthe 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 ofChapter
>> 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 ofthe 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.
>>>
>>>
>>>On Sat, Feb 2, 2013 at 1:20 AM, Tumasang Martin <tumasangm@hotmail.com>
>>> wrote:
>>>
>>>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.com
>>>>To: cameroon_politics@yahoogroups.com; ambasbay@googlegroups.com
>>>>CC: camnetwork@yahoogroups.com
>>>>Subject: 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.com
>>>>CC: cameroon_politics@yahoogroups.com; camnetwork@yahoogroups.com
>>>>From: Charto_us@yahoo.com
>>>>Date: 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:
>>>>> 1. The former government has been rendered incapable of publicly
>>>>> exercising its authority in that area;
>>>>> 2. 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 thatthe occupying power had no sovereign titleover the
>>>>> occupied territory, it follows from this jurisprudence that the
>>>>> occupying power cannot enter into treaty relationships on behalf of
>>>>> theoccupied 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
>>>>> loisou 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 necessaryfor 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.com
>>>>>To: ambasbay@googlegroups.com
>>>>>CC: 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.
>>>>>>
>>>>>>InOmotayo 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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>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
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Aaron Agien Nyangkwe
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Douala-Cameroon
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