Prospects for revision of ICJ judgment on Bakassi

The recent call credited to the Nigerian Bar Association to the Federal Government of Nigeria to apply to the International Court of Justice for the revision of its judgment of October 10, 2012 which ceded the disputed Bakassi Peninsula to Cameroun was not only timely, courageous but equally strategic.  The said call was contained in the NBA Communiqué issued on Friday, August 30, 2012 after the Association’s 52nd Annual General Conference held in Abuja where it asserted that there are fresh facts for the ICJ to revisit its judgment and thus requested the Federal Government of  Nigeria to legitimately apply.

 After all, Article 61 (1 and 5) of the Statute of the ICJ had provided this facility where it stated that:

Article 61 (1):

 An application for revision of a judgment may be made only when it is based upon the discovery of some facts of which a nature as to be a decisive factor, which the judgment was  given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence…..

 Article 61(5)

No application for revision may be made after the lapse of ten years from the date of the judgment (i.e. October 10, 2002 – October 10, 2012 in the Bakassi Case)

Basically, the foregoing provisions of the State of the Court requires a critical re-examination, review and analysis of the entire litigation strategies, proceedings and indeed the summary of the court judgment, particularly in context of the separate Declaration of some judges, who are members of the court as at October 10, 2002.  Collectively, Nigeria may find a window to explore to its advantage in her quest for revision of the contentious judgment on the Bakassi Peninsula which was ceded to Cameroun.

During the proceedings, it was speculated that Nigeria was requested to produce any scientific evidence of ownership of the disputed Bakassi Peninsula earlier than the 1884 Treaty of Protection between the Old Calabar Chiefs and Britain, to which I understand, the Nigerian agents at the court presented substantial titles thus gladly the discovery of yet another crucial documented evidence would certainly enhance Nigeria’s prospects before the ICJ. This new document satisfies the Court’s requirements as contained on Article 49 of the Court Statute which states that:  “The Court may, even before the hearing begins, call upon the agents to produce any document  or to supply  any explanations.  Formal note shall be taken for any refusal”

 Prof. Walter Ofonagoro asserted recently that he has in his possession year 1822 documents which vested ownership of the Bakassi Peninsula to the Old Calabar Chiefs by extension to Nigeria.  He disclosed this while speaking to Nigerian public on a topic:- “Nigeria, Cameroun and the Bakassi Question: The Unfulfilled UN Mandate”  organized by the Nigerian Institute of International Affairs held on Thursday, August 23, 2012 in Lagos.  This is a fresh fact unknown to Nigerians and the Court before the judgment of October 10, 2012, which gives credence and impetus to the agitation.

 Similarly, Article 52 of the Statute of Court provided another window to Nigeria to explore in her quest for the revision of the ICJ ruling of October 10, 2002 which ceded Bakassi to Cameroun.  The provision stated:-

Article 57(2)

If the Judgment does not represent in whole or in part the unanimous opinion of the Judges, any Judge shall be entitled to deliver a separate opinion.

Critically reviewing and analysing the separate/dissenting opinions of some of the judges of the court as provided by the Article 57 of Statute of the ICJ cited above, their separate declarations against the court’s ruling as presented in the summary of the court’s judgment of October 10, 2002 is quite revealing and indeed exposing the erroneous basis upon which judgment was passed.  Irrespective of the numerical strength of the voting which favours the Cameroun, the intellectual exposition, the analytical skills on the strength of law, international jurisprudence and conventional wisdom, suggest either there was an organised conspiracy to derail justice against a party in the case or just a mischievous plot to overlook the place of intellectualism on the case by the court.

 These separate/dissenting opinions of members of the court who adjudicated over the case raised credibility questions on their intellectual status, sound sense of judgment, neutrality and courage of the judges who voted in favour of the judgment.  These dissenting/separate opinions if adopted could have added colours, class and credence to the International Court of Justice verdict and, indeed the United Nations in passing the contentious judgment.

 After all, Article 38 (a-d) of the Statute of the Court has provided another window to Nigeria to explore in reinforcing the legal status of these intellectual expositions of some of the judges who expressed their reservations to the court’s judgment over the Bakassi Peninsula which  ceded the Island erroneously to the Cameroun.

 The Article 38 (1) Sub-Section a-d states: “The Court, whose functions is to decide in accordance with International law such disputes as are submitted to it, shall apply”:

(a)             International Conventions whether general or particular, establishing rules expressly recognised by the contesting states;

 (b)             International customs, as evidence of a general practice as law;

 (c)              The general principle of law recognised by civilized nations;

 (d)             Subject to the provision of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

 These separate/dissenting opinions of some of the court judges to the verdict over the Bakassi Peninsula coupled with the interpretation of the term “Treaty of Protection of 1884 between the Old Calabar Chiefs and Britain” by renowned international jurists and scholars articulated in this paper would show how the ICJ violated its own Statute of Article 38 (1)(a-d) which presents a sound legal basis for the court to revisit the said contentious judgment.  More so, Nigeria still has a legal basis to request the ICJ to revisit the contentious judgment by invoking Article 66(a) of the Vienna Convention on the Law of Treaties of 1969 which states: “any one of the parties to a dispute concerning the application or interpretation of Article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute for arbitration”

 Diplomatic option

Furthermore, Nigeria still has a window to explore diplomatic option before the United Nations until the expiration of the 10 years grace in the said judgment.  Article 66 (b) of the said Vienna Convention on the Law of Treaties of 1969 States:-

 anyone of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention (i.e. Invalidity, Termination and Suspension of the operation of Treaties) may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations.

 Consequently, the above provision of the Vienna Convention on the Law of Treaties has opened yet another window to Nigeria, while still utilising the legal instruments cited above and many others being projected by other stakeholders across country for consideration by the Nigerian government.

 More so, these available diplomatic options open to Nigeria within the United Nations when explored could equally provide a face serving diplomatic channel for the world body to revisit this contentious verdict of the ICJ. Also, the precarious security threat such insensitivity may pose within the Gulf of Guinea Region of Africa in particular and global peace in general imply that a request by Nigeria to the Court to revisit the judgment.

 The controversial green-tree agreement of year 2006

The ongoing national controversy over the legitimacy of the Green-Tree Agreement of year 2006 is not unexpected.  However, there are existing International Instruments which legitimises such an exercise.  The question as to whether the said Agreement needed be ratified by the Nigeria legislature or as to whether  Obasanjo has powers to go ahead single-handedly enter into a Treaty or Agreement without ratification of the Nigerian parliaments are equally provided in the Vienna Convention on Law of Treaties for Nigeria to explore. Article 7 of the Vienna Convention on the Law of Treaties states the procedures/personalities that have the capacity to conclude treaties/agreements as understood in International Law.

 (Article 7(1) states:-

A person is considered as representing a State for the purpose of adopting  or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if :-

 (a)     he produces appropriate full power or ;

 (b)   it appears from the paragraph 2 of the Statute  or from other circumstances that their intentions was to consider that person as representing the State for such purposes and to dispense with.

 Article 7 (2) states:

In virtue of their functions and without having to produce full powers, the following are considered representing their State:-

(a)             Heads of State, Heads of Government and Ministers of Foreign Affairs  for the purpose of performing all acts relating to the conclusion of a treaty;

(b)             head of Diplomatic Missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;

(c)              representatives accredited by States to an International Conference or to an International organization or one of its organs, for the purpose of adopting  the text of a treaty in that Conference, organisation or organ.

Consequently, by the foregoing provisions cited above, President Olusegun Obasanjo can be said to have qualified to have entered the Green Tree Agreement  of year 2006 between Nigeria and the Cameroun over a transitional programmed for the handover of the Bakassi Peninsula in accordance to the judgment.

However, still the said Vienna Convention on the Law of Treaties provided yet another legal facility as contained in  Article 46(1) where it states:- “A State may not invoke the fact its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”

Article 46 (2) further presented some clarifications to the above provisions:- “A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.”

These provisions of the Vienna Convention on the Law of Treaties equally present Nigeria with an option to challenge a violation of its internal procedures for legitimising treaties/agreement which the Green Tree Agreement of 2006 did not observed. In the final analysis, it must be noted that the said Green Tree Agreement has nothing practically to do with the hudgment in terms of its legitimacy or otherwise to have warranted its inclusion by Nigeria in her quest for a revision of the judgment. Since the said Green Tree Agreement was entered in year 2006 which was far back after the Court verdict was passed.

What Article 61 of the Statute of the ICJ requires are areas of errors or unknown facts from the judgment on the case between Nigeria and Cameroun over the disputed sovereignty question of the Bakassi Peninsula. Therefore, we should be more focused and articulate in our submission/presentation for revision of the said judgment.

Basically therefore, the preceding paragraphs attempted to situate within some provisions of the Statute of the International Court of Justice and the Vienna Convention on the Law of Treaties areas of ambiguity for Nigeria to explore in her quest for the revision of the verdict as provided for in the Court Statute Article 61 (Sub-Section 1 & 5) respectively.

Below are presented some articulated thoughts for Nigeria to study and analyse  from the separate/dissenting opinions of some of the  Judges of the ICJ as well as some intellectual presentations by renowned legal Jurist of International repute and Scholars of International Jurisprudence on their perspectives to the interpretation of the 1884 Treaty of Protection between the Old Calabar Chiefs and Britain which erroneously form the basis upon which the ICJ was said to have passed its verdict of October 10, 2002 that ceded Bakassi Peninsula to Cameroun.

Excerpts from a policy paper by Maiyaki of the Nigerian Institute of International Affairs, Lagos