Re: [cameroon_politics] SOUTHERN CAMEROONS: SCACUF/LE HOAG INSTITUTING CASE AT ICJ AGAINST LA REPUBLIQUE DU CAMEROUN

Sometime ago, and disappointed with Tumassng's posts, someone suggested that he (Tumassang) should restrict himself to forwarding mails. I am not sure he will excel in that area either. But he can simply wish us.
NN

On Sun, Jul 2, 2017 at 8:21 PM, 'Mishe Fon' via ambasbay <ambasbay@googlegroups.com> wrote:
Let us start by putting everything in perspective. We are talking here about a well established Professional "crobeau head" guru in many respects. Ngia Tums is the chief Lost Optimization Engineer with Law Firm Tinesse Associates based in London. He is a Chattered Surveyor, an International Arbitrator, a Land Speculator, President of Bafut-Manjong Europe and Middle East and graduate/alumni of the Obafemi Awolowo University of Ile-Ife in Nigeria. Kongossa says he is an accomplished Attorney specialized in Oil and Petroleom bunkering deals and offshore "wuru wuru" transactions, fait quoi fait quoi. By and large, this guy is an accomplished fellow.

All that "shweet mop langua" not withstanding;
If massa Maitre Tumasang is not just to be taken as an ordinary "Air Man trying to show-off", how is posting "lifted pages" out of Wikipedia and other legalese books a show of strength or "Legal expertise"? We (chook heads) now have available, software that can determine the source, the time it was "cut to paste on Camnet or elsewhere" and which IP address performed the task. What is wrong with Maitre Engineer Surveyor Tumasang not sending his "Legal Briefs" directly to the Foley (Dirane??) Hoag Lawyers he is trying albeit unsuccessfully to influence through his "Mambu/Agyete/Njibujang" Bafut Seven Catarrh "according to the Law" triangulation.

Ngia Maitre Tumasang, for a "barrister" of your standing, you have "faffed" very badly and need to address an apology to the good people of Southern Cameroons as a matter of Immediate Urgency.

Tell us in your public apology the following if you really want us to sorry 4 you"My mblalla dem, wuna chuz my bad. I been think say I want helep the Loya dem. For that reason, I go donate five hundred toisin francs to SCACUF, ! miyon francs to the Food Drive account and last but not the least One Toisin (dollars not CFA) to Mbang Nfor Mishe for bailing you out of a very dangerous  "Situation Insortirable".
How you see the plaba?



From: "charles ndifor charlesndifon@yahoo.com [cameroon_politics]" <cameroon_politics@yahoogroups.com>
To: "cameroon_politics@yahoogroups.com" <cameroon_politics@yahoogroups.com>
Sent: Sunday, July 2, 2017 2:19 PM
Subject: Re: [cameroon_politics] SOUTHERN CAMEROONS: SCACUF/LE HOAG INSTITUTING CASE AT ICJ AGAINST LA REPUBLIQUE DU CAMEROUN

 
Is Barrister Tumasang not one of the lions in sheep clothing, one of those who has been bribed to torpedo the struggle through his supposed mastery of what can only amount to deceit and duplicity?


On Sunday, July 2, 2017 8:53 AM, "Tabong Kima bakebe1@msn.com [cameroon_politics]" <cameroon_politics@yahoogroups.com> wrote:


 
Dr Tumasang,
Why did you not send your "Brief" to Foley and Hoag instead of educating the enemy in points of law? You just let the enemy into your brief-case to read your legal strategy by publishing it in this forum. Why have you done that?
Tabong Kima

Sent from my iPhone

On Jul 2, 2017, at 9:25 AM, Martin Tumasang tumasangm@hotmail.com [cameroon_politics] <cameroon_politics@yahoogroups.com> wrote:

 
 
SOUTHERN CAMEROONS: SCACUF/LE HOAG INSTITUTING CASE AT ICJ AGAINST LA REPUBLIQUE DU CAMEROUN
Introduction
The International Court of Justice (ICJ) is open to all States that are parties to its Statute, which include all members of the United Nations. The Court is not accessible to private persons and entities or international organizations and only States may be parties in contentious cases before the Court.
Generally, the above requirement makes it very difficult to understand the claim that SCACUF appointed Solicitors Le Hoag has instituted a case against La Republique du Cameroon at the International Court of Justice (ICJ) except perhaps they have procured a another country or state who is a member of the UN to institute the case on behalf of Southern Cameroons.

Pursuant to Article 40, paragraph 3, of the Statute of the ICJ, the Applications are notified to the States entitled to appear before the Court, and a copy also transmitted to the Secretary-General of the United Nations. By application of Article 44, paragraph 3, of the Rules of Court, and with the agreement of the parties to a case, the court can authorize the Pleadings to be made accessible to the public. There is no evidence that any State has been notified of a case instituted by Le Hoag against La Republique du Cameroon at the ICJ.
 
Even if Le Hoag on behalf of SCACUF was to procure another state to institute the proceedings on behalf of Southern Cameroons, a dispute has to crystallize between the procured State and La Republique du Cameroun in connection with the Southern Cameroons issue.
 
Even in a case where the Court is properly seized and has jurisdiction, it is not compelled to exercise that jurisdiction. This might be occasioned by 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[1].
 
Pursuant to Article 38, paragraph 1, of the Statute of the ICJ, in contentious cases, the function of the Court, is to "decide in accordance with international law such disputes as are submitted to it". The requests submitted to the Court, must be linked to a valid basis of jurisdiction, and relate to the function of deciding disputes. The Court, as a court of law, is called upon to resolve existing disputes between States and not between non state parties like Southern Cameroons. Thus the existence of a dispute is the primary condition for the Court to exercise its judicial function[2]. There is a need for there to be a dispute in a contentious case for the court to exercise its jurisdiction and 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[3].
 
The Permanent Court had observed that, "according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court's view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in 'regard to the meaning or scope of a judgment of the Court"[4].
To establish whether a dispute exists, "it must be shown that the claim of one party is positively opposed by the other[5]". Whether there exists an international dispute is a matter for objective determination[6]. The Court's determination must turn on an examination of the facts since the matter is one of substance, not of form and the dispute must in principle exist at the time the Application is submitted to the Court[7].
If for example Le Hoag on behalf of SCACUF procures a State that writes to La Republique du Cameroun and states that it does not believe there is one and indivisible Cameroon or that the Cameroon that the ICJ claimed Bakassi belongs to is Southern Cameroons and not La Republique du Cameroun, a dispute might then crystallize to allow the State to sue La Republique du Cameroun at the ICJ.
The question whether or not a State meets the conditions of Article 35 of the Statute can be regarded either as an issue relating to the Court's jurisdiction ratione personae or as an issue preliminary to the examination of jurisdiction. The Court had noted that "where the applicant's right to access to the Court has been challenged — as it had been — this "fundamental question" had to be decided before any other, because, if the applicant was not a party to the Statute, the Court was not open to it and accordingly it could not "properly seise the Court, whatever title of jurisdiction it might invoke"[8]. The Court has also observed that "the question whether a State may properly appear before the Court, on the basis of the Statute, is "one which the Court is bound to raise and examine, if necessary, ex officio, and if appropriate after notification to the parties"[9].
 
Articles 34 and 35 of the Statute define the capacity to participate in proceedings before the Court. Article 34, paragraph 1, of the Statute provides that "only States may be parties in cases before the Court", whilst Article 35, paragraph 1, states that "the Court shall be open to the States parties to the present Statute". Article 93, paragraph 1 of the Charter of the United Nations; provides that "all Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice". Southern Cameroons is NOT a member of the United Nations and hence not a party to the Statute of the ICJ and generally will not have a hearing in front of the ICJ.
 
It therefore follows that the claim that SCACUF/Le Hoag has instituting a case against La Republique du Cameroun at the ICJ will alarm most international lawyers. But is all lost?. No loop hole that Southern Cameroons international lawyers can use to cure the problem?. Below is an unexplored opportunity that I have developed which must assist.
 
Unexplored Window of Opportunity to Take La Republique du Cameroun to the ICJ
Article 93, paragraph 2 of the Charter of the United Nations provides an exception where in some cases, a State not a Member of the United Nations may become a party to the Statute of the Court. Article 35, paragraph 2 of the Statute of the Court deals with States which are not parties to the Statute of the Court, as Members of the United Nations or otherwise.
 
It provides that the Security Council can lay down the conditions under which the Court shall be open to such States and also provides a reservation for "special provisions contained in treaties in force". Security Council adopted resolution 9 (1946) of 15 October 1946, provides that the Court shall be open to any State not a party to the Statute which has previously deposited a declaration, either in respect of one or more particular matters or with a more general ambit, whereby the State undertakes to accept the jurisdiction of the Court in accordance with the Charter and to comply in good faith with the decisions of the Court. This provision clearly gives a window (albeit a small one) of opportunity for SCACUF/Le Hoag to deposit a declaration on Behalf of Southern Cameroons accepting the jurisdiction of the ICJ, then try to get access as a non state party that has become a party to the state of the ICJ. I strongly think SCACUF/Le Hoag should explore this possibility.
 
If an Applicant state was not a party to the Statute when the proceedings were initiated, and later became a party, then the Court might have jurisdiction to hear the case following the Mavrommatis doctrine[10] This means that that SCACUF/Le Hoag can start the case whilst aggressively trying make Southern Cameroons become a non state party who is a party to the statute of the ICJ using Resolution 9 (1946) of 15 October 1946. What I am saying here is that there is a  possibility although none of our Southern Cameroons lawyers have discovered it. I cannot guarantee success but it is be worth trying.
 
Domestic Remedies
International law does not make the institution of proceedings at the ICJ by means of a unilateral Application dependent on the prior exhaustion of diplomatic negotiations, in the absence of a treaty-provision stipulating such a condition
 
Negotiation and judicial settlement are enumerated together in Article 33 of the Charter of the United Nations as means for the peaceful settlement of disputes[11]. The exhaustion of diplomatic negotiations is not a precondition for a matter to be referred to the ICJ. No such precondition was embodied in the Statute of the Permanent Court of International Justice, contrary to a proposal by the Advisory Committee of Jurists in 1920[12], nor is it found in Article 36 of the Statute of the Court. It means that Southern Cameroons or the State bringing proceedings on its behalf does not need to exhaust any domestic remedies before institution of proceedings in the ICJ.
 
Reparation for Southern Camerouns
If SCACUF/Le Hoag procures a State to bring proceedings against La Republique du Cameroon and succeeds, of succeeds in using Resolution 9 of 1946, it can request the court for reparations. A State party might request the Court to order the other State party to make reparation to the Applicant, in its own right and as parens patriae for its citizens, for all damage and other loss or harm to person or property or to the economy of the State caused by the violations of international law. 56 years of spoliation of Southern Cameroons can result in significant damages against La Republique du Cameroon running into billions of dollars.
 
Actions of SCACUF and Consortium
At this junction, I must warn SCACUF and the Consortium to be careful what they say or do. It is a well-established principle that "a state in statu nascendi (a state about to be born like Southern Cameroons) is responsible for conduct carried out by its officials and organs or otherwise under its direction and control". As observed in Article 10, paragraph 2, of the International Law Commission's Articles on the State Responsibility (Annex to General Assembly resolution 56/83, 12 December 2001, "the conduct of a movement insurrectional or other which succeeds in establishing a new State shall be considered an act of the new State under international law". We do not want to become independent and La Republique du Cameroon brings a case against Southern Cameroons for losses incurred by itself and its citizens due to ghost towns and other issues done by SCACUF or the Consortium.
 
Self Defence
A State has the sovereign right to defend Itself and its People under United Nations Charter Article 51 and customary international law, including by means of immediately obtaining military weapons, equipment, supplies and troops from other States. It appears that on the facts, if Southern Cameroons or Southern Cameroonians arm themselves, they might be covered by international law since this right might be available to a state in Statu nascendi such as Southern Cameroons.
 
Pursuant to the right of collective self-defence recognized by United Nations Charter Article 51, all other States parties to the Charter have the right to come to the immediate defence of a State, at its request, including by means of immediately providing it with weapons, military equipment and supplies, and armed forces (soldiers, sailors, air people, etc.) when attacked as Southern Cameroons (a state in statu nascendi) has been mitarized and brutally attacked.
 
Grounds for Judgment
The ICJ has a right which is implicit in paragraph 2 of Article 53 of its Statute, to select proprio motu the basis of its decision. The Court retains its freedom to select the ground upon which it will base its judgment, and is under no obligation to examine all the considerations advanced by the Parties if other considerations appear to it to be sufficient for its purpose[13].
 
There might be a situation where a matter is to be decided according to principles of equity rather than by points of law. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto.
 
In the case of Southern Cameroons, I believe there are many basis on which the ICJ can base its judgment and pronounce in favour of Southern Cameroons.


[1] Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963, p. 29.
[2] 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.)
[3] Frontier dispute (Bukina Faso v Niger) 16 April 2013 Judgment
 
[4] Interpretation of judgment Nos 7 and 8 (The Chorzow Factory) 1927, Series A – No 13
[5] South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328
[6] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74
[7] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, para. 30)
[8] Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), pp. 298-299, para. 46
[9] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007 (I), p. 94, para. 122.
[10] Mavrommatis Palestine Concessions (Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 34)
[11]Aegean Sea Continental ShelJ: Judgment, I. C. J. Reports 1978, p. 12, para. 29
[12]Advisory Committee of Jurists, Proc├Ęs-verbaux of the Proceedings of the Committee (16 June-24 July 1920) with Annexes, pp. 679, 725-726.
[13] Case concerning the Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958: I.C.J. Reports 1958
 



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