OPEN DOOR TO VIOLENCE
BY
AYAH Paul ABINE
Cameroon Radio Television – CRTV – in its programme “Cameroon Calling” of February 23, 2014, interviewed a number of persons about the high-sounding nothing christened “50th Anniversary of Reunification”. Among them was Dr Simon Munzu. Munzu, inter alia, dismissed as unworkable Mola Njoh Litumbe’s contention that there is no legal “reunification” between la Republique du Cameroun and Southern Cameroons; and that there is need for dialogue, leading to the signing of an instrument of joining. The ground of Dr Munzu’s stance is that the United Nations did endorse the plebiscite and that it cannot come back on what it has done. He was categorical that the United Nations will not even entertain the issue.
With much respect, one would opine that Munzu made a political pronouncement akin to a layman’s assertion rather than a statement of law. Even as law is essentially argumentative, it would be unfair not to suppose that Munzu, for incomprehensible reasons, overlooked basic notions of the law. With his leave, we propose to draw the learned man of law’s attention to some basic facts and law.
We all know that relevancy is the cardinal canon in every legal disputation. And so do we talk about the fact in issue; facts relevant to the fact in issue; and facts relevant to facts relevant to the fact in issue. In sum, it is elementary law that relevancy does not stretch with infinite elasticity. Munzu may therefore wish to agree with us that the conduct of the plebiscite has never been an issue relevant to the fact in issue that the joining of la Republique to Cameroun by Southern Cameroun is not evidenced in writing. Panels of eminent scholars have so found over the years, thereby endorsing our stance, among us Mola Njoh Litumbe, that there is no legal instrument (document) showing that the two countries have ever been one. The President of la Republique du Cameroun does not hold to the contrary.
Intellectual honesty demands then that Munzu who holds himself out as being more knowledgeable than all of us, including the members of the various panels, (perhaps more president than the President of la Republique du Cameroun), and who consequently holds a contrary view, should name the relevant document, or even just refer us to it. That, in all honesty, is the legal means of proof or disproof. No-one needs to be a fellow in law to din this into Dr Munzu’s head.
If the learned doctor’s trump card is the worthless document called “Cameroon Federal Constitution”, Munzu knows, or at least is presumed to know, that the said document was enacted by the National Assembly of la Republique du Cameroun in April, 1961 – some six months prior to the purported reunification on October 1, 1961. Neither in the context of time nor space did the National Assembly of la Republique du Cameroun have jurisdiction over Southern Cameroons. It is elementary law that, as long as that foreign instrument, namely, “Cameroon Federal Constitution”, was not ratified by the Southern Cameroons House of Assembly, (and perhaps the House of chiefs), prior to the date of the so-called reunification, the said document does not have any binding effect on Southern Cameroons.
Even if any legal instrument there ever was that evidenced the joining, that did not dispense with the legal duty imposed by Article 102 of the United Nations Charter on the member state that la Republique to Cameroun had been since September 1960 to deposit the instrument with the United Nations as evidence of variation in the international boundaries of that member state as of its date of independence. It may not be insulting to say that there is nothing inscrutable about that contention; at least not for a person of Munzu’s erudition.
Granted by the widest and wildest stretch of imagination that there was joining as per the process laid down by the United Nations, on what ground does Munzu base his categorical assertion that the United Nations can never undo what it has done? Munzu knows, or ought to know, that Kosovo was part of Yugoslavia that was a member state of the United Nations. Similarly were East Timor, Eritrea, and South Sudan yesterday parts of member states of the United Nations. Yet did the same United Nations carve out those new states. If Southern Cameroons is a case sui generis, intellectual honesty here again burdens Munzu with proof of the fact that Southern Cameroons is a special case. Millions of Southern Cameroonians expect Munzu to unburden himself so as to dissipate rightful suspicion. That seems important and imperative because not too many ordinary Southern Cameroonians may understand what appears to be a subtle message from him.
Indeed, Southern Cameroonians of a reasonable station in life do find Munzu’s subtlety bare of ambiguity. They know that for his learning and relations with the United Nations, Munzu is possessed of all the facts. He surely is not wrong in his assertions relative to the conduct of international business by that world body. It is common knowledge that only violence compelled the United Nations to create the new nations out of its member states. Munzu therefore advises that our slogan of “the force of argument…” can never set the United Nations in motion. To explain in superfluity, Munzu is categorical that the only language the United Nations understands is violence. And that, after all, is enshrined in the charter of the world body!
URGENT: THE ARGUMENT OF FORCE: UNDERSTANDING MUNZU'S MIND
Martin Tumasang
Barrister at law, Advocate/Notary Public/Solicitor, International Arbitrator, Chartered Valuation Surveyor, Principal Quantity Surveyor, Claims Quantum Consultant.Barrister [Supreme Court of England and Wales, Inner Temple London], Solicitor/Advocate/Notary Public [Supreme Court Cameroon(La Republique du Cameroun/Southern Cameroons)], MRICS [Chartered Surveyor, Member of the Royal Institute of Chartered Surveyors, London], MCIArb [Member of the Chartered Institute of Arbitrators, London], RRVal (Registered Valuer, Royal Institute of Chartered Surveyors, London], ABIFM [Associate of the British Institution of Facilities Management, UK], [Registered Arbitrator of the Dubai International Arbitration Centre, DIAC, Dubai], Doctor of Philosophy [PhD Sheffield Hallam University, Sheffield], Master of Laws [LLM Professional Legal Pactice (completed course and awaiting award)], Master of Laws [LLM with merit Oil and Gas Law, Robert Gordon University, Aberdeen], Master of Science [MSc Construction Law and Dispute Resolution, Leeds Metropolitan University, Leeds], Master of Science [MSc Property Valuation & Management, Sheffield Hallam University, Sheffield], Bar Professional Training Course (BPTC) [BPP University College London], Post Graduate Diploma [PGDip Property Valuation & Management, Sheffield Hallam University, Sheffield], Graduate Diploma Legal Studies (GDL/CPE) [University of Hertfordshire, London], Bachelor of Science [BSc (Hons), 2nd Upper, Quantity Surveying, OAU (University of Ife), Osun State].
Dear All,
while I might not agree with Munzu, my learned colleague and fellow member of the Inns of Court in London, that the purported joining of the two Cameroons cannot be revisited by the UN, I think we are again going back to the same old arguments where experience in domestic law is being extrapolated into international law. It seems we are so comfortable with our old and hackneyed contentions and we keep repeating them even if international law suggests otherwise. I have severally tried to educate the people on these issues. I have stated various winnable cases against La Republique du Cameroun on this joining issue but we continue to propagate the old model which cannot stand international scrutiny.
Panels of eminent scholars have so found over the years, thereby endorsing our stance, among us Mola Njoh Litumbe, that there is no legal instrument (document) showing that the two countries have ever been one. The President of la Republique du Cameroun does not hold to the contrary. Intellectual honesty demands then that Munzu who holds himself out as being more knowledgeable than all of us, including the members of the various panels, (perhaps more president than the President of la Republique du Cameroun), and who consequently holds a contrary view, should name the relevant document, or even just refer us to it. That, in all honesty, is the legal means of proof or disproof. No-one needs to be a fellow in law to din this into Dr Munzu's head.
[Paul Ayah]
One is always tempted to accept what is said by eminent scholars in panels but there are three questions. 1)Do we need a whole panel to say something to be true 2) Is what is said by such a panel true 3) If what is said true is it relevant?
On (1), when Albert Einstein promulgated his General Theory of Relativity, there was much opposition. A Panel of Experts produced a document and signed called "100 Experts Against Einstein". When he heard of the document, he said "Why 100. If I was wrong, one is enough. Security in numbers might help but not in all cases. I will discount the point that a Panel of Experts said something contrary to what my learned colleague Munzu said and look at the issues on their merit.
On (2) above, the panel might be correct that there is no such legal instrument (document) as evidence of the joining of the 2 Cameroons. One has ever seen such a document and La Republique du Cameroon has never pleaded such a document. The Panel is correct on this score.
On (3) above, if what the panel said is true as I have acknowledged or otherwise, so what?. Is it relevant?. I submit that people are confusing domestic law where Southern Cameroons has much expertise with international law where we are patently lacking in knowledge and erudition. The lack of such a document is not definitive in international law.
I am fortified by decisions in various cases including but not limited to the important below case dealing with sovereignty issues. In the CASE CONCERNING SOVEREIGNTY OVER PEDRA BRANCA/PULAU BATU PUTEH, MIDDLE ROCKS AND SOUTH LEDGE (MALAYSIA/SINGAPORE) JUDGMENT OF 23 MAY 2008, it was held by the International Court of Justice (ICJ) that
"Any passing of sovereignty might be by way of agreement between the two States in question. Such an agreement might take the form of a treaty, as with the 1824 Crawfurd Treaty and the 1927 Agreement referred to earlier (paragraphs 22, 28 and 102). This is the Union Treaty perhaps signed by the Queen of England (the one in charge of foreign affairs in Southern cameroons then) and not Foncha, and ratified by Southern Cameroons Assembly and deposited at the UN in accordance with UN Article 102 that most Southern Cameroonians are looking for. Such a Union treaty does not exist. The critical question is whether such a Union Treaty is needed at all or all these years of focus on the absence of such a treaty or document has been a waste of time on the wrong focus?.
The ICJ went further to say
"The agreement might instead be tacit and arise from the conduct of the Parties. International law does not, in this matter, impose any particular form. Rather it places its emphasis on the parties' intentions (cf. e.g. Temple of Preah Vihear (Cambodia v.Thailand), Preliminary Objections, I.C.J. Reports 1961, pp. 17, 31)".
It is very interesting that the ICJ in the Malaysia/Singapore case is quoting the same Temple of Preach Vihear case I had quoted before to explain the joining issue.
The issue CANNOT be clearer. The agreement for any passing of sovereignty might instead be tacit and arise from the conduct of the Parties. International law DOES NOT impose any form of agreement for passing of sovereignty. A binding joining could be tacit and could arise from the conduct of Southern Cameroons and La Republique du Cameroun around 1961 and since after. Those looking for a UK Queen signed Union Treaty, ratified by Southern Cameroons Parliament and deposited at the UN in accordance with UN article 102 are wasting their time. Such document is not mandatory in international law. I would not waste my valuable time arguing against Munzu from this direction. Considering his erudition, he will just be laughing. I am ALARMED that any person, persons or group of persons would attempt to rebut the joining of the two Cameroons without focusing on the intention of the parties, and whether such intentions were realised. This is the winnable case.
If the learned doctor's trump card is the worthless document called "Cameroon Federal Constitution", Munzu knows, or at least is presumed to know, that the said document was enacted by the National Assembly of la Republique du Cameroun in April, 1961 - some six months prior to the purported reunification on October 1, 1961. Neither in the context of time nor space did the National Assembly of la Republique du Cameroun have jurisdiction over Southern Cameroons. It is elementary law that, as long as that foreign instrument, namely, "Cameroon Federal Constitution", was not ratified by the Southern Cameroons House of Assembly, (and perhaps the House of chiefs), prior to the date of the so-called reunification, the said document does not have any binding effect on Southern Cameroons.
[Paul Ayah]
I do not think La Republique du Cameroun is pleading its Constitution as the legal instrument or document making the joining binding so I will not waste my time there. La Rpublique du Cameroon has NEVER shown or pleaded any union treaty or document. She has never pleaded its constitution, federal or otherwise as a definitive document making the union binding. It is clear that La Republique du Cameroun is hoping and depending on the tacit joining based on intention and the conduct on the parties since this is acceptable in international law. This is La Republique du Cameroun's case from all indications and that is where we should concentrate. We cannot force our own case on the other party and go ahead to rebut it. The other party has NEVER pleaded a union treaty or document yet we spend years on a lack thereof. She has NEVER pleaded that she registered any document in accordance with UN Article 102 yet we spend years on such non registration. She has NEVER pleaded ratification by Southern Cameroons Assembly yet we spend years on such non ratification.
Even if any legal instrument there ever was that evidenced the joining, that did not dispense with the legal duty imposed by Article 102 of the United Nations Charter on the member state that la Republique to Cameroun had been since September 1960 to deposit the instrument with the United Nations as evidence of variation in the international boundaries of that member state as of its date of independence. [Paul Ayah]
UN Article 102: A Non ISSUENon registration of a joining (if any) with the UN Secretariat is not be a useful tool in the hands of Southern Cameroons. UN Article 102 originated from Article 18 of the Covenant of the League of Nations and, in the South West Africa case, it was held that where the League is involved in a process, article 18 requiring registration of treaties applies differently and non registration is not fatal to a treaty. By the UN ordering the plebiscite, noting the results, ordering termination of the trusteeship agreement, it would easily be argued that they were so involved that UN article 102 non registration is not fatal in the joining (if any).Question:I was asked what my legal opinion is on the fact that the UN did not attend the conference to finalise the terms of joining as required by UN article 76 and what is the effect if it be shown that UN involvement was not total?. Will non registration under UN Article 102 in this particular scenario make a purported union with La Republique du Cameroon non binding?.AnswerMy considered opinion is that non registration in the above scenario will still NOT be fatal to a joining (if there was one). It would not make a purported union non binding. If there was a joining and the only issue is UN Article 102 registration, then the joining will be valid so we have to look for a different defence and not depend at all on this UN Article 102 non registration.ReasoningI remember that Qatar where I lived and worked for sometime had border delimitation problems with Bahrain and they had some agreement to refer the whole border problem to the ICJ. Bahrain letter said that the Minutes of agreement to refer the whole problem is not binding because Qatar waited until June 1991 before it applied to the United Nations Secretariat to register the Minutes of December 1990 under Article 102 of the Charter; and moreover that Bahrain objected to such registration.
Bahrain also observes that, contrary to what is laid down in Article 17 of the Pact of the League of Arab States, Qatar did not file the 1990 Minutes with the General Secretariat of the League; nor did it follow the procedures required by its own Constitution for the conclusion of treaties. This conduct showed that Qatar, like Bahrain, never considered the 1990 Minutes to be an international agreement.
The problem finally went to the International Court of Justice (ICJ) and in Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C. J. Report.7 1994. p. 1 12, the ICJ would observe that an international agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked by the parties before any organ of the United Nations.
But the ICJ went further to say:
"Non registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties. The Court therefore cannot infer from the fact that Qatar did not apply for registration of the 1990 Minutes until six months alter they were signed that Qatar considered, in December 1990, that those Minutes did not constitute an international agreement. The same conclusion follows as regards the non-registration of the text with the General Secretariat of the Arab League. Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention,
even if shown to exist, prevail over the actual terms of the instrument in question. Accordingly Bahrain's argument on these points also cannot be accepted. The Court concludes that the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties".
Summary on UN Article 102
Either way, in relation with Southern Cameroons, with UN involvement in the purported joining process or not, UN article 102 non registration does not affect the validity of any joining (if any) so IT SHOULD NOT BE USED AT HOME OR ABROAD TO SUPPORT OR FIGHT OUR CASE. FOR THE AVOIDANCE OF DOUBT, I PRONOUNCE THAT IN RELATION TO THE SOUTHERN CAMEROONS CASE, UN ARTICLE 102 IS DEAD.
Failure to register a treaty in a regional instrument e.g. as required by Article 17 of the Pact of the League of Arab States cannot invalidate the treaty. It remains binding on the parties.
Failure to register a treaty internationally as required by UN Article 102 CANNOT invalidate a treaty. It remains binding on the parties.
Hence failure by La Republique du Cameroun to register any joining treaty (if any) CANNOT invalidate the joining.
Indeed, Southern Cameroonians of a reasonable station in life do find Munzu's subtlety bare of ambiguity. They know that for his learning and relations with the United Nations, Munzu is possessed of all the facts. He surely is not wrong in his assertions relative to the conduct of international business by that world body. It is common knowledge that only violence compelled the United Nations to create the new nations out of its member states. Munzu therefore advises that our slogan of "the force of argument." can never set the United Nations in motion. To explain in superfluity, Munzu is categorical that the only language the United Nations understands is violence. And that, after all, is enshrined in the charter of the world body! [Paul Ayah]I agree with Paul Ayah that changing the dynamics on the ground with refugees flowing left and right will call the attention of the UN but that is not the only means. Based on the intention of the parties at the plebiscite and such intentions not being realised, there is a winnable case against La Republique du Cameroun on the sovereignty and joining issue. I have in the past outlined various winnable cases against La Republique du Cameroun on the issue.I categorically state that the lack of union treaty or document, the non ratification of the joining by the Southern Cameroons Assembly (1913 Treaty not ratified by Germany but still binding, Nigeria claimed Maroua Accord not ratified by Military Council but ICJ not impressed with this ratification argument), non registration of union in accordance with UN Article 102 are not winnable cases. We have a winnable case on the joining based on intention of the parties and non realisation of those intentions.On my colleague Munzu's contention that the UN cannot revisit the joining, I am aware of the Northern Cameroons case where it was stated that various violations in the joining process have been consumated and restitutio in integrum CANNOT be ordered. The Court also said that "the UN ratifying the plebiscite results MUST have legal effect".The Southern Cameroons case is different. It is not based on violation of the joining process for such violations have been consummated and restitutio in integrum cannot be ordered. Instead, it is based on the intention of the parties and non realisation of such intentions hence the joining can legally be revisited not withstanding the ratification of the plebiscite results by the UN.We have a solid case against La Republique du Cameroun but we must stick with international law and stop hanging on hackneyed, tired and discredited positions on union treaty, non ratification of treaties or non registration of treaties. These are not going to take us anywhere. Lets stick with intention of the parties and non realisation of those intentions. That is the winnable case in international law is located.
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