FW: International Court of Justice (ICJ) and Decolonization of Southern Cameroons: Crystallization of Dispute and Applicable Law (formatted)

International Court of Justice (ICJ) and Decolonization of Southern Cameroons: Crystallization of Dispute and Applicable Law

 Tumasang Martin Esq.

Introduction

While considering the possibility of the Southern Cameroons case being referred to the ICJ by a neighbouring state say Nigeria, it is prudent to consider what the dispute is, when does it crystallize and what the applicable law in the ICJ will be, should such a referral take place.

Crystallization of Dispute

In cases in fora like the ICJ, there is always the issue of whether the court has jurisdiction or not. Notwithstanding this important issue, it is not the end of the story. There is always the secondary issue of whether if the court has jurisdiction, it should exercise that jurisdiction. This issue is usually ignored by non-discerning commentators but it is as important as the issue of jurisdiction itself.

The question that arises is whether in case a neighbouring state such as Nigeria takes our case to the ICJ and proves that it has a locus standi to bring the case and hence the court has jurisdiction on the case, is the court compelled to exercise such as jurisdiction?

My considered opinion is NO. Nigeria can take the case to the ICJ, the ICJ might have jurisdiction but still refuse to exercise that jurisdiction. My readership might at this stage be alarmed by the strange but considered opinion I have reached on this issue. In order to explain my reasoning above, I would respectfully draw your attention to the Northern Cameroons case in the ICJ where the ICJ stated that

"even if the Court, when seized, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction. There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court's judicial integrity." (Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 29.)

The above clearly shows that even if the court has jurisdiction, and even if both parties what the court to decide on the case, the court can still decline to do that. It does not matter if the case came to the ICJ by a "Special Agreement" by both parties or by unilateral application by one party. The limits of what the ICJ can do or not do, and what it should do or not do, is not governed by jurisdiction only but by statute also and the limitations placed on it by statute are not at the disposal of the parties, even by agreement between them, and are mandatory for the parties just as for the Court itself.

In the case of FRONTIER DISPUTE (BURKINA FASO/NIGER) 16 APRIL 2013 (very recent case) at ICJ, the court stated that:

"In contentious cases, the function of the Court, as defined in Article 38, paragraph 1, of the Statute, is to "decide in accordance with international law such disputes as are submitted to it". Consequently, the requests that parties submit to the Court, must not only be linked to a valid basis of jurisdiction, but must also always relate to the function of deciding disputes".

I am fortified in my opinion held above by the cases of Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, pp. 270-271, para. 55; Nuclear Tests (New Zealand v. France, Judgment, I.C.J. Reports 1974, p. 476, para. 58.) in the ICJ where the court stated that:

"The Court, as a court of law, is called upon to resolve existing disputes between States. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function." The court also stated in this case that:

"It is for the Court to determine objectively whether there is a dispute, without being bound in that respect by the assertions of the parties" (ibid., paras. 55 and 58).

The question a discerning mind might ask at this stage is how does the above considered opinion anchor with the Southern Cameroons issue?. To deal with this, let's consider simpliciter that Nigeria takes Southern Cameroons case to the ICJ in fulfillment of one of its obligation in the Abuja Tomlin judgment. The question will be what is the dispute that Nigeria has with La Republique du Cameroun?. Southern Cameroons for sure has a justiciable dispute with La Republique du Cameroun but does Nigeria have such a dispute?. My considered opinion again is NO. If the answer is no, then the ICJ cannot exercise its judicial functions and the case collapses at this point.

If my above considered opinion is correct, how do we cure the problem and crystallize a dispute between say Nigeria and La Republique du Cameroun so that the ICJ can be able to seize on the matter considering the limitation of its role as defined by the applicable statutes?.

In order to resolve the above problem, I hereby ask the readership's indulgence to take an analogy from the Construction industry. In this industry, payment of Contractors and Subcontractors is always a problem with numerous disputes until in the UK, the Housing Act was passed which allows unpaid contractors to refer their cases to adjudication and the adjudicator his obliged to give a determination within 28 days unless extended.

For the adjudicator to have jurisdiction, a despite must have crystallized and concerning payment of money, a dispute only crystallizes if payment has been requested and there is a refusal to pay expressly or by conduct.

Using this analogy on the Southern Cameroons case, a dispute on Southern Cameroons between Nigeria and La Republique du Cameroun will crystallize if Nigeria writes to La Republique du Cameroun and ask it to withdraw to its borders as inherited from colonization, to withdraw its proconsul governors from the territory, and to allow the people of Southern Cameroons to exercise their sovereignty since such sovereignty is not with La Republique du Cameroun as sovereignty was never transferred to it, nor is there a union treaty between the two Cameroons. Nigeria can give La Republique du Cameroun say 21 days to comply, failure which a dispute crystallizes and Nigeria can refer the dispute to the ICJ. Please note that the critical date is the date of reference to determine if a dispute has crystallized between the parties. In hindsight, the writing of such a letter to La Republique du Cameroun should have been included in the Abuja Tomlin Judgment to start the ball rolling.

 Applicable Law

If Nigeria was to succeed and refer the case to the ICJ, the question still remains as to what is the applicable law to apply in the case?. Does the African Union constitute Act in regards to boundaries inherited from colonialism have any moment in front of the ICJ?. Would the Cairo Declaration of 1964 in relation to this same issue be considered by the ICJ as good international law to be followed?. Would the principle of intangibility of colonial borders apply?. Can La Republique du Cameroun add territory that is outside those borders inherited at independence without a union treaty and without satisfying Article 102 of the charter?.

In order to address these questions, it might be germane to look at the recent jurisprudence of the ICJ on these matters and see what inspiration we can draw from them. Before that, it might be good practice to state what the Cairo 1964 declaration said:

The text of resolution AGH/Res. 16 (I) adopted in Cairo in 1964 at the first session of the Conference of African Heads of State and Government, whereby the Conference declared that all member States of the Organization of African Unity "solemnly . . . pledge themselves to respect the borders existing on their achievement of national independence". Subsequently, Article 4 (b) of the Constitutive Act of the African Union laid down the principle of "respect of borders existing on achievement of independence".

Going back to the jurisprudence of the ICJ, the case of Frontier Dispute (Burkina Faso/Republic of Mali), the Chamber of the Court which dealt with the case concluded that it could "not disregard the principle of uti possidetis juris, the application of which gives rise to this respect for intangibility of frontiers" (Frontier Dispute (Burkina Faso/Republic of Mali Judgment, I.C.J. Reports 1986, p. 565, para. 20).

From the above, La Republique du Cameroun is doomed with its borders at the Mungo and after Santa and there is nothing they can do. The principle of intangibility of colonial borders is good international law as applied by the ICJ. Reliance has to be placed on existing titles at the time of independence and interpretation has to even be as interpreted and applied by the colonial powers. I am fortified in this view because of the jurisprudence of the ICJ, where in the case of the Frontier Dispute (Benin/Niger), the Chamber of the Court emphasized that "the uti possidetis juris principle requires not only that reliance be placed on existing legal titles, but also that account be taken of the manner in which those titles were interpreted and applied by the competent public authorities of the colonial Power" (The Frontier Dispute (Benin/Niger) Judgment,I.C.J. Reports 2005, p. 148, para. 140)

Conclusion

In order for a neighbouring state to refer our case to the ICJ, a dispute between it and La Republique du Cameroun must be crystallized and in the ICJ, the principle of intangibility of colonial boundaries will be paramount hence consigning La Republique du Cameroun after the Mungo and after Santa. Force has no part to play, wishes of its people and fifth columnists in Southern Cameroons has no part to play.