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International Court of Justice Cameroon v. Nigeria 1993
General List No. 94
15 March 1996
CASE CONCERNING THE LAND AND MARITIME BOUNDARY BETWEEN
CAMEROON AND NIGERIA
(CAMEROON v. NIGERIA)
REQUEST FOR THE INDICATION OF
President BEDJAOUI; Vice-President SCHWEBEL; Judges ODA, GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO, HIGGINS, PARRA-ARANGUREN; Judges ad hoc MBAYE, AJIBOLA; Registrar VALENCIA-OSPINA.
The International Court of Justice,
Composed as above,
Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court,
Makes the following Order:
1. Whereas, by an Application filed in the Registry of the Court on 29 March 1994, the Republic of Cameroon (hereinafter referred to as "Cameroon") instituted proceedings against the Federal Republic of Nigeria (hereinafter referred to as "Nigeria") in respect of a dispute described as "relat[ing] essentially to the question of sovereignty over the Bakassi Peninsula";
2. Whereas in that Application Cameroon refers, as a basis for the jurisdiction of the Court, to the declarations made by the two States pursuant to Article 36, paragraph 2, of the Statute;
3. Whereas in the aforementioned Application it is stated that "Cameroon's title [to the Bakassi Peninsula] is contested" by Nigeria; that "since the end of 1993, this contestation has taken the form of an aggression by . . . Nigeria, whose troops are occupying several Cameroonian localities in the Bakassi Peninsula"; and that this "has resulted in great prejudice to . . . Cameroon, for which the Court is respectfully requested to order reparation";
4. Whereas in its Application Cameroon further states that the "delimitation [of the maritime boundary between the two States] has remained a partial one and [that], despite many attempts to complete it, the two parties have been unable to do so"; and whereas it accordingly requested the Court, "in order to avoid further incidents between the two countries, . . . to determine the course of the maritime boundary between the two States beyond the line fixed in 1975";
5. Whereas at the close of its Application Cameroon presented the following submissions:
6. Whereas the Registrar notified the Government of Nigeria on 29 March 1994, by telex and by letter, of the filing of that Application, and a certified copy thereof was transmitted to it;
7. Whereas on 6 June 1994 Cameroon filed in the Registry an Additional Application "for the purpose of extending the subject of the dispute" to a further dispute, described in that Additional Application as "relat[ing] essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad";
8. Whereas in that Additional Application it is indicated that "Cameroon's title to [that part of the territory] is contested by. . . Nigeria"; and that
9. Whereas in its Additional Application Cameroon also requested the Court "to specify definitively" the frontier between the two States from Lake Chad to the sea, and asked it to join the two Applications and "to examine the whole in a single case";
10. Whereas at the close of its Additional Application Cameroon presented the following submissions:
11. Whereas on 7 June 1994 the Registrar informed the Agent of Nigeria of the filing of the Additional Application and transmitted to him a certified copy thereof;
12. Whereas at a meeting which the President of the Court held with the representatives of the Parties on 14 June 1994 the Agent of Nigeria stated that he had no objection to the Additional Application being treated, in accordance with the wish expressed by Cameroon, as an amendment to the initial Application, so that the Court could deal with the whole in a single case; and whereas by an Order dated 16 June 1994 the Court indicated that it had no objection itself to such a procedure, and fixed 16 March 1995 and 18 December 1995 as the time-limits for the filing of the Memorial of Cameroon and the Counter-Memorial of Nigeria, respectively;
13. Whereas, in accordance with Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, copies of the initial Application and of the amendment to it were transmitted to the Members of the United Nations through the Secretary-General, as well as to the other States entitled to appear before the Court; and whereas the text of the Order of 16 June 1994 was communicated to them under the same cover;
14. Whereas within the time-limits fixed by that Order Cameroon filed its Memorial and Nigeria filed certain preliminary objections to the jurisdiction of the Court and the admissibility of the claims of Cameroon; and whereas by an Order dated 10 January 1996 the President of the Court, noting that by virtue of Article 79, paragraph 3, of the Rules of Court the proceedings on the merits were suspended, fixed 15 May 1996 as the time-limit within which Cameroon might present a written statement of its observations and submissions on the preliminary objections, in accordance with that same provision;
15. Whereas, since the Court includes upon the bench no judge of the nationality of either of the Parties, Cameroon chose Mr. Kéba Mbaye, and Nigeria Mr. Bola Ajibola, to sit as judges ad hoc in the case, in accordance with Article 31, paragraph 3, of the Statute;
16. Whereas on 8 February 1996 the Minister for External Relations of Cameroon transmitted to the Court the text of a communiqué published by the Cameroonian Government in the wake of an armed incident that had occurred on 3 February 1996 in the Bakassi Peninsula; and whereas, according to that communiqué, the two Parties were currently in contact "to ensure that peace prevail[ed] in this region pending the judgment of the International Court of Justice";
17. Whereas by a letter dated 10 February 1996 and received in the Registry by facsimile on 12 February 1996 the Agent of Cameroon, referring to the "grave incidents which have taken place between the . . . forces [of the two Parties] in the Bakassi Peninsula since . . . 3 February 1996", communicated to the Court the text of a request for the indication of provisional measures based on Article 41 of the Statute and on Article 73 of the Rules of Court; and whereas in his letter the Agent of Cameroon laid stress upon the "urgency and gravity of the situation" and asked that "the earliest possible date should be fixed for the hearing";
18. Whereas in its request for the indication of provisional measures the Cameroonian Government gave, inter alia, the following account:
19. Whereas in the aforementioned request for the indication of provisional measures Cameroon, referring to the provisions of Article 73, paragraph 2, of the Rules of Court, went on to specify in the following terms the consequences which, in its view, would flow from the rejection of its request:
20. Whereas at the close of its request Cameroon asked the Court to indicate the following measures:
21. Whereas on 12 February 1996, immediately upon receiving the facsimile communication from the Agent of Cameroon, the Registrar sent a copy thereof to the Agent of Nigeria; and whereas the certified copy of the request for the indication of provisional measures, referred to in Article 73, paragraph 2, of the Rules of Court, was transmitted to the Agent of Nigeria on 16 February 1996, immediately after receipt in the Registry of the original of the aforementioned request;
22. Whereas on 16 February 1996 the Registrar informed the Parties that the Court had fixed 5 March 1996 as the date for the opening of the oral proceedings contemplated in Article 74, paragraph 3, of the Rules of Court, during which they could present their observations on the request for the indication of provisional measures;
23. Whereas on 16 February 1996 the Agent of Nigeria addressed to the Court a communication entitled "Cameroonian Government forces Nigerians in Bakassi (Disputed Territory) to Register and Vote in Municipal Elections", which reached the Registry on 19 February 1996; whereas in that communication the Agent of Nigeria, having recalled the position of his Government with respect to the proceedings instituted before the Court by the Cameroonian Government, referred to the municipal elections organized by the Cameroonian authorities on 21 January 1996 and, in particular, stated in that regard that:
and whereas the communication from the Agent of Nigeria concluded in the following terms:
24. Whereas a copy of that communication was immediately transmitted to the Agent of Cameroon, who in a letter dated 29 February 1996, received in the Registry on 1 March by telefax, indicated that his Government would "reply as appropriate to the allegations contained in this document at the hearing on 5 March", and stated that:
25. Whereas by a letter dated 26 February 1996, received in the Registry on 29 February 1996, the Agent of Cameroon transmitted to the Court a number of documents to which his Government intended to refer in support of its oral pleadings; and whereas a copy of that letter and of the documents which accompanied it was immediately transmitted to the Agent of Nigeria;
26. Whereas oral statements on the request for the indication of provisional measures were presented at the public hearings held on 5, 6 and 8 March 1996 by the following:
on behalf of Cameroon:
on behalf of Nigeria:
whereas oral replies were given by the Parties to the questions put during the hearings by Members of the Court; and whereas Nigeria indicated on that occasion that its communication of 16 February 1996 did not constitute a counter-claim for the indication of provisional measures;
27. Whereas during those hearings various documents were produced by the Parties; whereas Nigeria was authorized by the Court to present written observations on certain documents submitted by Cameroon on 8 March 1996; whereas those observations were received in the Registry by facsimile on 11 March 1996; and whereas a copy thereof was transmitted the same day to the Agent of Cameroon;
28. Whereas the two Parties have each made a declaration recognizing the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute; whereas the declaration of Nigeria was deposited with the Secretary-General of the United Nations on 3 September 1965 and that of Cameroon on 3 March 1994; whereas neither of the two declarations includes any reservation; and whereas Nigeria has made it clear in its declaration that it was made on the sole condition of reciprocity;
29. Whereas Nigeria has raised preliminary objections to the jurisdiction of the Court in the present case, and has claimed inter alia that there is no substantive reciprocity in the recognition of the jurisdiction of the Court by the Parties; and whereas in the course of the present proceedings its Agent expressed the opinion that the Court does not have even "prima facie jurisdiction over the substantive issues";
30. Whereas on a request for the indication of provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;
31. Whereas the Court, which has taken note of the opinion expressed by the Agent of Nigeria with respect to its prima facie jurisdiction, is of the view that the preliminary objections raised by that State are not such as to exclude that jurisdiction; whereas the Court, in fact, considers that the declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded;
32. Whereas Nigeria also raised objections to the admissibility of the claims of Cameroon, and whereas it contended inter alia that the Parties had a duty to settle all boundary questions pending between them by means of the existing bilateral machinery; and whereas during the present proceedings Nigeria contended that Cameroon's Application as amended on 6 June 1994 describes the dispute between the Parties as concerning the whole of the frontier, that no such dispute exists, and that consequently that Application "is not even prima facie admissible";
33. Whereas without ruling on the question whether, faced with a request for the indication of provisional measures, the Court must, before deciding whether or not to indicate such measures, ensure that the Application of which it is seised is admissible prima facie, it considers that, in this case, the consolidated Application of Cameroon does not appear prima facie to be inadmissible in the light of the preliminary objections raised by Nigeria;
34. Whereas in the present proceedings Cameroon has requested the Court to exercise the power conferred upon it by Articles 41 of the Statute of the Court and 73 of the Rules of Court to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either Party;
35. Whereas this power to indicate provisional measures has as its object to preserve the respective rights of the Parties, pending a decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent; and whereas such measures are only justified if there is urgency;
36. Whereas, in the course of the present proceedings, Nigeria has contended that the circumstances do not require the indication of provisional measures and that, on account of the mediation conducted by the President of the Republic of Togo, the request of Cameroon has "become moot";
37. Whereas that mediation has been undertaken to bring about a cease-fire between the armed forces of the Parties and whereas, following the discussions between the Ministers for Foreign Affairs of Cameroon, Nigeria and Togo, a communiqué announcing the cessation of all hostilities was published on 17 February 1996; whereas this circumstance does not, however, deprive the Court of the rights and duties pertaining to it in the case brought before it;
38. Whereas the contradictory versions given by the Parties of the events that took place on 3 February 1996 in the Bakassi Peninsula, as well as those which recurred on 16 and 17 February 1996, have not enabled the Court, at this stage, to form any clear and precise idea of those events; but whereas it is clear from the submissions of both Parties to the Court that there were military incidents and that they caused suffering, occasioned fatalities - of both military and civilian personnel - while causing others to be wounded or unaccounted for, as well as causing major material damage;
39. Whereas the rights at issue in these proceedings are sovereign rights which the Parties claim over territory, and whereas these rights also concern persons; and whereas armed actions have regrettably occurred on territory which is the subject of proceedings before the Court;
40. Whereas, in accordance with the principle set forth by the Permanent Court of International Justice in its Order of 3 August 1932 in the case concerning the Legal Status of the South-Eastern Territory of Greenland, and reiterated by a Chamber of the present Court in its Order of 10 January 1986 in the case concerning the Frontier Dispute, incidents likely to aggravate or extend the dispute
41. Considering that, independently of the requests for the indication of provisional measures submitted by the Parties to preserve specific rights, the Court possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require (cf. Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18);
42. Whereas the events that have given rise to the request, and more especially the killing of persons, have caused irreparable damage to the rights that the Parties may have over the Peninsula; whereas persons in the disputed area and, as a consequence, the rights of the Parties within that area are exposed to serious risk of further irreparable damage; and whereas armed actions within the territory in dispute could jeopardize the existence of evidence relevant to the present case; and whereas, from the elements of information available to it, the Court takes the view that there is a risk that events likely to aggravate or extend the dispute may occur again, thus rendering any settlement of that dispute more difficult;
43. Whereas the Court, in the context of the proceedings concerning the indication of provisional measures, cannot make definitive findings of fact or of imputability, and the right of each Party to dispute the facts alleged against it, to challenge the attribution to it of responsibility for those facts, and to submit arguments, if appropriate, in respect of the merits, must remain unaffected by the Court's decision;
44. Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case, or any questions relating to the admissibility of the Application, or relating to the merits themselves and leaves unaffected the right of the Governments of Cameroon and Nigeria to submit arguments in respect of those questions;
45. Whereas, by letters dated 29 February 1996, the President of the Security Council, acting at the request of its members, addressed the following call to the Governments of the two Parties:
46. Whereas the Secretary-General of the United Nations has proposed to despatch a fact-finding mission into the Bakassi Peninsula; whereas the Members of the Security Council have expressed their satisfaction at the proposal made by the Secretary-General; and whereas the President of the Security Council, by the aforementioned letters likewise informed the Governments of the two Parties that the members of the Security Council urged them to co-operate fully with that fact-finding mission;
47. Whereas in the course of the present proceedings the representatives of the two Parties have, on several occasions, referred to the fraternal relations which have always existed between their peoples;
48. Whereas Article 75, paragraph 2, of the Rules of Court confers upon the Court the power to indicate measures that are in whole or in part other than those requested;
49. For these reasons,
Indicates, pending a decision in the proceedings instituted as aforesaid, the following provisional measures:
(2) By sixteen votes to one,
(3) By twelve votes to five,
(4) By sixteen votes to one,
(5) By sixteen votes to one,
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of March, one thousand nine hundred and ninety-six, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Cameroon and the Government of the Federal Republic of Nigeria, respectively.
(Signed) Mohammed BEDJAOUI,
(Signed) Eduardo VALENCIA-OSPINA,
Judges ODA, SHAHABUDDEEN, RANJEVA and KOROMA append declarations to the Order of the Court; Judges WEERAMANTRY, SHI and VERESHCHETIN append a joint declaration to the Order of the Court; Judge ad hoc MBAYE appends a declaration to the Order of the Court.
Judge ad hoc AJIBOLA appends a separate opinion to the Order of the Court.
DECLARATION OF JUDGE ODA
In this declaration I would like to make clear two reservations that I have to the text of the Order.
1. I voted in favour of paragraph 3 of the operative part, albeit with some hesitation. In my view, the date given in the passage reading
2. I am a little concerned by the passage in paragraph 42 in which the concept of "irreparable damage" is mentioned. The purpose of provisional measures is to preserve the rights of either party, and it is established in the jurisprudence that the rights in question are those which are to be considered at the merits stage of the case and which constitute, or are directly engaged by, the subject of the application. The urgency of the relevant action or inhibition is a prerequisite. The anticipated or actual breach of the rights to be preserved ought to be one which could not be erased by the payment of reparation or compensation to be ordered in a later judgment on the merits, and this irreparable prejudice must be imminent. These conditions have been regarded by the Court as the criteria according to which it has determined its position when indicating or refusing to indicate provisional measures as requested by the applicant in each case.
In the present case, when the Court states in the first part of paragraph 42 that
this is simply a statement of facts that already exist. In the latter part of paragraph 42, the Court talks about
I believe, however, that loss of life in the disputed area, distressing as it undoubtedly is, does not constitute the real subject matter of the present case.
In addition, the Court admits that it has not been able to form any clear and precise idea of the events that took place on 3 February 1996 as well as those which recurred on 16 and 17 February 1996 in the Bakassi Peninsula, and has been unable to make a definitive findings of facts or of imputability (para. 43). In such an unclear situation the concept of irreparable damage cannot be used to justify the indication of provisional measures.
(Signed) Shigeru ODA.
DECLARATION OF JUDGE SHAHABUDDEEN
The Order made by the Court today should help to maintain friendly relations between two fraternal and neighbouring States. I have voted for paragraphs 1, 2, 4 and 5 of the dispositif. If I thought that there was a sound juridical basis for paragraph 3 of the dispositif, I should have voted for this also. However, I do not think there is such a basis.
A provisional measure should be framed in self-executing terms, in the sense that it should contain all the legal elements required for its interpretation and application. In the case of a provisional measure limiting the movement of armed forces, an essential element is the prescription of a clear physical benchmark, in the nature of a stipulation of positions or lines in relation to which it could be easily determined whether the required limitation has been observed. For the reasons alluded to in paragraph 38 of the Court's Order, the evidence has not permitted the Court to identify such a benchmark. A related problem confronted the Chamber in the Frontier Dispute case, but there an alternative solution was available (Provisional Measures, I.C.J. Reports 1986, pp. 10-11, para. 27, and p. 12, para. 32 (1) (D)). No similar alternative solution is available here.
In the result, a provisional measure limiting the movement of armed forces will not serve the intended purpose of avoiding conflict in the area. On the contrary, it may provide a basis for a fresh dispute, in that, in the circumstances of this case, there could be argument between the Parties as to what position or positions each occupied prior to 3 February 1996.
In this situation, it seemed to me that the provisional measure prescribed in paragraph 2 of the dispositif, for which I voted, was as much as the Court could usefully indicate, that measure being directed to requiring both Parties to observe the agreement reached by their Ministers of Foreign Affairs on 17 February 1996 for the cessation of all hostilities in the Bakassi Peninsula. The observance of this requirement should yield much of the practical effect which would have been achieved by an adequately constructed provisional measure limiting the movement of the armed forces of the Parties.
(Signed) Mohamed SHAHABUDDEEN.
DECLARATION OF JUDGE RANJEVA
The present Order confirms - if any confirmation was needed - the jurisprudence of the Chamber in the case concerning the Frontier Dispute (Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, pp. 3 et seq.). The operative part does not confine itself to the indication of measures preserving rights in the traditional sense; it directly invites the Parties to take measures of a military nature: cessation of hostilities, refraining from any action by armed forces, freezing of the positions of the armed forces. A new "given" in international judicial relations is thus confirmed, that is, incidental proceedings consisting of a request for provisional measures owing to the occurrence of an armed conflict, grafted on to a legal dispute.
In that case, the indication of measures that may have a military character does not form part of a general regulatory function, which neither the Charter nor the Statute has conferred upon the Court. Such decisions represent, on the one hand, measures required by the circumstances of the case which are evaluated by the Court in the exercise of its discretionary power and, on the other hand, a contribution by the Court to ensuring the observance of one of the principal obligations of the United Nations and of all its organs in relation to the maintenance of international peace and security. The latter consideration explains more particularly the Court's position on a possible additional condition for the indication of provisional measures, that is, the prima facie admissibility of the principal Application (see paragraph 33 of the Order). By their nature, provisional measures fall within the Court's judicial functions and form part of the Court's responsibility for evaluating the circumstances: risks of irreparable damage to the rights of the Parties, urgency, etc., and the measures required.
(Signed) Raymond RANJEVA.
DECLARATION OF JUDGE KOROMA
I have voted in favour of the Order and it is my clear understanding that it does not prejudge the issues before the Court but rather - and in conformity with Article 41 of the Statute - is intended to preserve the respective rights of either Party, pending the decision of the Court. Article 41 empowers the Court to indicate, if it considers the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either Party.
According to the material before the Court, including the oral arguments of the Parties, both sides have acknowledged that an incident involving the armed forces of the two States took place in the Bakassi Peninsula on 3 February 1996 and that it caused suffering and occasioned fatalities - of both military and civilian personnel - while causing others to be wounded or unaccounted for, as well as causing major material damage.
The Court, having found that it has prima facie jurisdiction, is not in a position to evaluate the conflicting versions of the incident that was said to have taken place on 3 February. However, based on the material before the Court, the possibility of a further military engagement resulting in irreparable damage to the rights of either Party, including further loss of human life, does, in my considered opinion, provide the Court with sufficient reason to grant the provisional order on its own accord.
It is hoped that this Order will discourage either Party from taking any measures which might cause irreparable damage to the millions of each of the Parties' nationals residing in the other's territory, help to reduce tensions between the two States and restore the fraternal relations which have always existed between the two countries, pending the decision of the Court.
Finally, I wish to stress once again that I have voted for the Order on the clear understanding that it does not prejudge the issues before the Court.
(Signed) Abdul G. KOROMA.
JOINT DECLARATION OF
We have voted with the majority of the Court in regard to items 1, 2, 4, and 5 of the dispositif, but have been unable to support the majority in relation to item 3. The reasons for our unease with this clause are as follows.
The two Parties have given the Court two entirely different versions in regard to the incidents of 3 February 1996. These different versions involve entirely different positions in regard to the location of their respective armed forces on that date.
The Court has refrained from reaching any conclusion at this stage as between the contradictory versions presented by the two Parties, and advisedly so, for a decision on a matter of this nature would have required more detailed and specific evidence than was placed before the Court.
The Court Order, requiring the Parties to ensure that the presence of any armed forces in the Bakassi Peninsula should not extend beyond the positions in which they were situated prior to 3 February 1996, in effect leaves it to each Party to determine what that position was and to act upon that determination. These positions may well be contradictory, thus leaving open the possibility of confusion upon the ground. The Order may thus be interpreted as containing an internal contradiction.
Indeed, the Court itself would be unable to state what those respective positions are, if an enquiry were addressed to it.
Our view is that item 3 should not, for these reasons, have been included in the Order and we have therefore been unable to support that portion of the Order.
(Signed) Christopher Gregory WEERAMANTRY.
(Signed) SHI Jiuyong.
(Signed) Vladlen S. VERESHCHETIN.
DECLARATION OF JUDGE MBAYE
It rarely happens that two cases are exactly alike. However, the case concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures (I.C.J. Reports 1986, pp. 3 et seq.) and the present proceedings do display some striking similarities. In both cases, there is a dispute between two neighbouring African States. It relates to the delimitation of their boundary and has been referred to the Court. Further to certain armed actions, the Court has been asked to indicate provisional measures.
To be sure, in the case concerning the Frontier Dispute, the two Parties, who had both signed a special agreement to refer their case to the Court, had both ultimately requested the indication of provisional measures on the basis of Articles 41 of the Statute and 73 of the Rules of Court, whereas in the present proceedings, Nigeria - which asserts that the Court does not have even "prima facie jurisdiction over the substantive issues", has argued and submitted that the Court should refrain from indicating the measures requested by Cameroon, further contending that those measures were neither admissible nor appropriate. One should moreover bear in mind that Nigeria, with regard to the merits of the case, has raised eight preliminary objections with a view to having the Court find that it lacks jurisdiction or, having it, dismiss the Application as inadmissible. However, that in no way detracts from the similarity between the two cases.
Among the provisional measures requested by Cameroon, it will be noted that the Court is asked "without prejudice to the merits of the dispute", to indicate that: "(1) the armed forces of the Parties shall withdraw to the position they were occupying before the Nigerian armed attack of 3 February 1996".
In the Frontier Dispute case, the Chamber took the view that its "power and duty to indicate . . . such provisional measures as may conduce to the due administration of justice" were not in doubt (I.C.J. Reports 1986, p. 9, para. 19) when it was confronted by incidents "which not merely are likely to extend or aggravate the dispute but comprise a resort to force which is irreconcilable with the principle of the peaceful settlement of international disputes" (ibid.). Consequently, the Chamber not only asked Burkina Faso and Mali to "ensure that no action of any kind is taken which might aggravate or extend the dispute . . . or prejudice the right of the other Party to compliance with whatever judgment the Chamber may render in the case" (I.C.J. Reports 1986, p. 11-12, para. 32 (1) (A)) but also requested the two Governments to withdraw their armed forces to positions behind lines which were to be determined within 20 days by agreement and, failing that, by itself. More precisely, it indicated that:
It is true that, in its statement of reasoning, the Chamber had specified that
The Court was under the same obligation in the present proceedings. Just like the Chamber in 1986 it had to find, in the light of the circumstances, a way of applying the principle that had been highlighted by the Chamber and according to which, when a case is pending before the Court and an armed conflict breaks out between the parties, the measures that the Court is required to indicate must necessarily include the withdrawal of troops.
The Court, concerned to contribute "to the attainment of one of the principal obligations of the United Nations . . . in relation to the maintenance of . . . peace" (see the declaration of Judge Ranjeva) has indicated that "both Parties should ensure that the presence of any armed forces in the Bakassi Peninsula does not extend beyond the positions in which they were situated prior to 3 February 1996" (an appropriate form of words, under the circumstances, to indicate the withdrawal of troops), taking due account of the circumstances of the case.
I am delighted by this, as I consider that three of the measures indicated by the Chamber in the case concerning the Frontier Dispute (see paragraph 32 (1) (A), (B) and (D) of the operative part of its Order), namely the halting of any action which might aggravate or extend the dispute, abstention from any act likely to impede the gathering of evidence and the withdrawal of troops, form an aggregate that is indispensable in each instance of a conflict of the kind that has occurred between Cameroon and Nigeria, at a time when their dispute is pending before the Court. These three measures should, in such a case, be indicated so as to maintain the peace that is necessary to such negotiations as the Parties have contemplated or might be contemplating, and the execution of the judgment that the Court might hand down in the case. The Court has consolidated its jurisprudence.
(Signed) Kéba MBAYE.
SEPARATE OPINION OF JUDGE AJIBOLA
After careful consideration of the present situation in the Bakassi Peninsula which forms part of the area in dispute between Cameroon and Nigeria, I agree to vote in favour of the first operative part of the Court's Order indicating provisional measures in this case. I am convinced that it is the proper thing to do in the circumstances, in accordance with the relevant Articles of the Statute and Rules of Court, as well as its jurisprudence. This Order is made irrespective of the request of Cameroon, the Court, in its judicial wisdom, having based the indication on Article 75 (2) of its Rules.
However, I regret to state that I am unable to support or vote with the Court on the other four operative parts, and I wish to say why in this opinion. A situation has arisen on the Bakassi Peninsula through the use of armed force. Cameroon says Nigeria attacked; Nigeria says Cameroon attacked; Cameroon gives details; Nigeria gives details. In the circumstances and at this stage, it is not possible for the Court to determine definitively who was responsible, but it is the cardinal duty of the Court to preserve peace. Nonetheless, it is agreed by both Parties that there were armed incidents on 3 February and 16 and 17 February 1996. The Court is apparently obliged, therefore, in accordance with international law, to show its concern until the matter is decided, and order that both Parties "should ensure that no action of any kind, and particularly no action by their armed forces, is taken which might . . . aggravate or extend the dispute before it".
On the other hand, I have voted against the other four operative parts of the Order for the following reasons:
I shall now proceed to express my views on the request of Cameroon, and some of my observations on the important issues raised in this request coupled with some of the reasoning behind my decision to support the Court regarding the first operative part of the Order indicated in this matter.
Based on its original Application filed in the Registry of the Court on 29 March 1994 and supplemented by an additional Application of 6 June 1994, the Republic of Cameroon next filed a request for the indication of provisional measures under Article 41 of the Statute of the Court. The request is dated 10 February 1996, seven days after the alleged incidents in the Bakassi Peninsula of 3 February 1996, described by Cameroon as "the grave incidents which have taken place between the Cameroonian forces and the Nigerian forces of aggression in the Bakassi Peninsula".
Consequently, Cameroon is requesting the Court to indicate the following provisional measures:
In support of its request, Cameroon submitted the following documents:
Similarly, Nigeria also submitted a bundle of documents in support of its defence to Cameroon's request. In effect many of the documents contained therein negate the documentary assertions and averments contained in the documents of Cameroon. But some facts, like those relating to the presentation of the dispute before many international organizations like the OAU, the Security Council and the European Union, seem not to be in dispute. Subsequently Cameroon submitted, though belatedly, another bundle of documents much of the contents of which was not referred to in the hearings but which contained more detailed maps of the area in dispute. Nigeria also submitted on 7 March 1996 an addendum to its original document of telegrams pertaining to the incident of 3 February 1996.
The relevant question now is whether these facts, documentary and oral, placed before the Court and as responded to by Nigeria are sufficient for the Court to indicate the requests for the three provisional measures at the instance of Cameroon. My answer to this question unfortunately is in the negative. From the evidence placed before the Court, there is no doubt that there were certain incidents recently in the Bakassi Peninsula - the area of dispute between Cameroon and Nigeria. Cameroon, from all the available documents placed before the Court in its Memorial and all the documents presented in support of this request for an indication of provisional measures, claims unequivocally the Bakassi Peninsula as forming part of its territory. Nigeria, as can be observed from all of its documents in defence of this request coupled with its oral presentation, also claims that the Bakassi Peninsula forms part of Nigeria's territory. The question now is who is to be believed? This question, as I have said earlier, cannot be treated fully at this stage of the proceedings. This question, provided the case proceeds eventually to be heard on the merits (in view of the fact that Nigeria on 18 December 1995 filed its preliminary objection challenging the Court's jurisdiction and admissibility of Cameroon's Application) may then be settled one way or the other. No conclusive or convincing evidence was, to my mind, placed before the Court to determine the issue of who was where and when. There is no doubt that this is difficult to decide at this stage of the proceedings. What has been presented before the Court are claims and counter-claims, allegations and counter-allegations, by both Parties. The picture painted of Nigeria by Cameroon was that of a belligerent neighbour bent on expanding its territory by sheer force and who therefore attacked Cameroon in its territory many times in the recent past. Cameroon also tried to persuade the Court to "view Nigeria as the party unwilling to honour bilateral agreements and treaties with regard to the dispute concerning the boundary between them". On the other hand Nigeria equally accused Cameroon as the warmonger who had in the recent past tried to drive away Nigeria from its land in the Bakassi Peninsula and it claimed that 90 per cent of all the people in the Bakassi Peninsula are Nigerians. It also claimed that most of the civilians killed during the recent incidents are Nigerians and not Cameroonians. Nigeria even went to the extent (CR 96/4, pp. 82-90) of giving a graphic description of how Nigeria was tactically attacked on 3 February 1996 and on 16 and 17 February 1996 through the creeks of the Bakassi Peninsula. Cameroon claimed that Nigeria now occupies some part of the Bakassi Peninsula by force of arms while it drove the Cameroonian forces out of the area before it was occupied mostly between 1994 and 1996 and that it has never laid any claim to the Bakassi Peninsula before 1993.
On the other hand, Nigeria claimed that up till the present time Cameroon had never stationed or had any of its forces in the Bakassi Peninsula. For example, Nigeria remarked and stressed "that unlike Nigeria, which has a number of military installations in Bakassi, Cameroon has no fixed military position there. It launched its attack outside the Peninsula" (CR 96/3, p. 13). It again emphasized the same fact: "I repeat, Mr. President, that prior to 3 February 1996 Cameroon had no military position in Bakassi" (CR 96/3, p. 66). But this point was not specifically replied to by Cameroon, even though it claimed to have an administration set up in many places in Bakassi, including Idabato I and Idabato II. Even many of the maps submitted by Cameroon only indicate the military positions of Nigeria since 3 February 1996 and 16 and 17 February 1996, with nothing shown about the military positions of Cameroon (Map A, Cameroon dossier). On the issue of elections, Nigeria accused Cameroon of recently holding elections within its territory. To counter this claim Cameroon put in documents to show that the election was held within its territory (unfortunately the date of the election was not indicated on this document) (Exhibit H of Cameroon dossier).
The first question that comes to mind, in my opinion, concerning such a request of this nature is the issue of facts and evidence that the Court could rely upon in order to exercise its discretion regarding this incidental jurisdiction under Article 41 of the Statute. But before this issue is examined reference should be made to the question of what is legally required of the Applicant regarding this kind of request. Article 73 (2) of the Rules of Court provides that the requesting party must "specify the reasons therefor, the possible consequences if it is not granted, and the measures requested". In addition to the request filed, the Applicant has also presented a dossier of documents in support of the request. The question is whether all of the documents presented by the Applicant is sufficient for the Court to exercise its discretion based on those facts. It should be added here that Nigeria also presented its own bundle of documents in reply to that of the Applicant and in support of its own argument that the Court should not grant the request for an indication of provisional measures at the instance of Cameroon.
What is the duty of the Court with regard to all the documents now presented for this incidental jurisdiction? Can the Court rely on these documents and thereby grant the request of Cameroon? Has Cameroon discharged its obligation to give enough "reason" why such request should be granted? Cameroon's dossier in support of its request contains the following:
However, judging from the material placed by both Parties before the Court certain facts appear to be undisputed which constitute, in effect, the common ground in these proceedings. These facts are of a purely provisional nature and do not involve any definitive finding of full facts in this case and neither do they affect the ultimate decision on the merits in the future. There are two categories of facts: first, those of the two major incidents and, second, the international mediation and negotiation efforts concerning the dispute.
With reference to the first category, both Parties, as can be gleaned from the material presented in this case and the oral evidence in support, agreed that there was an incident on 3 February 1996 involving loss of lives on both the military and civilian side. Similarly, there were incidents on 16 and 17 February 1996 involving loss of lives on both sides. Both of these incidents occurred in the Bakassi Peninsula. Both incidents were referred to as "skirmishes" in the communiqué of 17 February 1996.
The material supplied by both Parties refers to the mediation efforts of President Eyadema of Togo which resulted in the signing of a communiqué by the Foreign Ministers of Nigeria and Cameroon on 17 February 1996. This communiqué, which recognized the "skirmishes" that erupted between the Parties on 3 February 1996 "between the Nigerian forces and Cameroonian forces, stationed on the Bakassi Peninsula, resulted in several casualties on both sides" (Exhibit E of the Cameroon dossier), contains some important facts, as follows:
The communiqué also referred to the earlier efforts to maintain peace between both Parties by recalling the Tunis Communiqué of 13 June 1994 and the Kara Meeting of 4 to 6 July 1994.
On 5 February 1996, the United Nations Secretary-General issued a press release in which he expressed deep concern about the "border clash" between the Parties which resulted in several casualties; he urged that both Parties should "show restraint and to withdraw their troops from the border area to create the necessary conditions for the peaceful settlement of their dispute", but most importantly the Secretary-General called on both Parties to: "await the deliberation of the International Court of Justice which is presently seized with the case" (Cameroon dossier); (emphasis added).
In response to letters received by the President of the Security Council (S/1994/228, S/1994/258, S/1994/351 and S/1994/472) from the Permanent Representatives of Cameroon and Nigeria, he forwarded on 29 April 1994 identical letters to both Parties concerning the "border dispute between Cameroon and Nigeria in relation to the Bakassi Peninsula". It is important to refer comprehensively to the decision of the Security Council as stated in the President's letter in the following manner:
Other diplomatic appeals were made by the Secretary-General of the Organization of African Unity, Mr. Salim Ahmed Salim, urging the peaceful resolution of the dispute and the ambassadors of the European Union also called on both Parties to abstain from armed conflict and to withdraw to positions occupied before the Court was seised of the matter.
III. LEGAL CONDITIONS AND GROUNDS FOR THE INDICATION OF PROVISIONAL MEASURES
A. Prima Facie Jurisdiction
In all cases in which the Court is called upon to exercise its power to indicate provisional measures, it must satisfy itself, as one of the "circumstances" referred to in its Statute, that it has prima facie jurisdiction. However, a clear distinction has always been drawn between the jurisdiction of the Court to determine the case on its merits (which is not to be considered at this stage of the proceedings) and its jurisdiction to indicate provisional measures. However the two issues are not unconnected, since both are based on the consent of the Respondent State. A clear distinction has been drawn between "consent to statute" and "consent to case".
Is the prima facie jurisdiction of the Court in doubt in this matter? This question may need to be examined with great care before any answer can be given one way or the other. Nigeria accepted the compulsory jurisdiction of the Court when, on 3 September 1965, it made its declaration in accordance with Article 36, paragraph 2, of the Statute, on the sole condition of reciprocity. Cameroon made its own declaration of acceptance of the compulsory jurisdiction of the Court on 3 March 1994. Neither State includes any reservation in its declaration. One would have presumed that this fact might be sufficient to enable the Court to satisfy itself that it has prima facie jurisdiction. Unfortunately, an element of doubt - sufficient to justify judicial caution on this issue - was introduced by the Respondent when Nigeria argued the absence of substantial reciprocity and an absence of good faith on the part of Cameroon (CR 96/3, pp. 40-45). Nigeria contended that
Nigeria also said, on the issue of lack of good faith by Cameroon, that "that is not the conduct of a State conducting itself with the degree of good faith which Nigeria is entitled to expect" (CR 96/3, p. 44). On this argument Nigeria concluded that:
Nigeria's objection on this ground also includes an assertion that the request of Cameroon is inadmissible.
It was argued by Cameroon that on the basis of the decision in the case concerning Right of Passage over Indian Territory (Preliminary Objections, I.C.J. Reports 1957, p. 125), the contention of Nigeria cannot be a valid one in law. However, while I do not wish to go into the details of that decision, I would point out that that case dealt with the issue of substantive jurisdiction on the merits and not prima facie jurisdiction for the purpose of an indication of provisional measures, and that most of the objections raised in that case with regard to the declarations of both India and Portugal under Article 36, paragraph 2, of the Statute, dealt with the issue of ratione temporis and were not based on the issue of lack of good faith and admissibility.
Perhaps I should echo the observation of Judge M.C. Chagla in his dissenting opinion in the Right of Passage over Indian Territory case:
Perhaps it is premature to go too deeply into the issue of jurisdiction at this stage, other than to examine the objection put forward by Nigeria that there is not even prima facie jurisdiction justifying the Court in the indication of provisional measures. In view of the serious doubts now cast on this matter by Nigeria together with its argument of the absence of substantial reciprocity based on a lack of good faith by Cameroon, which may need to be further developed and explained at the next stage of this case, I would rather be inclined to take an attitude of judicial caution and decline to indicate provisional measures as requested by Cameroon. Some of us are perhaps mindful of the dilemma implied by this view, which I shall deal with later. It was well expressed by Sir Hersch Lauterpacht as follows:
However, in view of the fact that negotiations are continuing on a bilateral basis between the Parties, it may not be out of place to take this present situation into account, in order to ensure that nothing is done to jeopardize such an amicable solution to a border dispute between two neighbouring countries who are both members of the OAU. This is one of the reasons why I supported the first operative part of the Court's Order. It may not, therefore, be out of place to note again the view of Sir Hersch Lauterpacht in his separate opinion in the Interhandel case:
Invariably, an element of urgency is one of the "circumstances" that may lead a party to ask the Court for the indication of provisional measures. Article 74 of the Rules of Court, which provides that such request shall have priority over all other cases, also states in paragraph 2 that:
A clear definition of urgency was given in the case concerning Passage through the Great Belt as follows:
In its request, Cameroon argues that there is urgency in this case. Nigeria denies it. In support of its argument, Cameroon refers to all the incidents that occurred in the recent past, especially before and after the filing of its Application in the Court on 29 March 1994. It refers in particular to the incidents of 3 February 1996, and 16 and 17 February 1996, apart from all the diplomatic attempts to settle the dispute which proved futile. Nigeria, for its part, considers the entire request of Cameroon to have become "moot" because there was no need for it, as hostilities have ceased while moves to settle the dispute are at the moment progressing and will ultimately involve the Heads of State of both countries on a bilateral basis.
Considering all the intermittent incidents in the recent past involving sporadic clashes that have degenerated into serious skirmishes and which could possibly explode into a full-scale war, can it be denied that this request is urgent? I take the view that this is a serious and very urgent situation which urgently requires attention of the Court. The Court took such speedy action recently in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, when an Order was promptly made on 8 April 1993 (I.C.J. Reports 1993, p. 3). It is therefore difficult for me to accept Nigeria's view that there is nothing urgent in this matter. In my view, it is extremely urgent.
IV. THE REQUESTS OF CAMEROON AND THE LEGAL BASIS FOR AN INDICATION OF PROVISIONAL MEASURES
It may now be as well for me to consider the three requests for the indication of provisional measures as requested by Cameroon against the background of conflicting accounts of the facts - a problem referred to in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the following terms:
Again before considering the three requests of Cameroon the Court was bound to examine the essential objects or factors that form the legal bases for the indication of provisional measures, in accordance with Article 41 of the Statute:
(i) The Court's discretion
The indication of provisional measures by the Court is a matter for the exclusive discretion of the Court which it may or may not exercise, depending on the circumstances of any particular case. Some schools of thought in international law consider this discretionary power to be a part of the inherent power of international tribunals. However, since the Court is by Article 30 of the Statute empowered to make its own rules, provision is made for this unfettered discretion to take action proprio motu under Article 75 of the Rules. I shall return again to this important discretionary power later on.
(ii) Prejudging the issue
The Court should also avoid prejudging the merits of the case. This seems, in my view, to have been the Court's dilemma when indicating provisional measures in the Anglo-Iranian Oil Co. case. The Court pointed out that:
but ultimately decided that it had no jurisdiction.
If we stop here for a moment and consider one of the requests of Cameroon with regard to this essential factor or object, there is no doubt that the Court would be prejudging the issue if it were to grant that request. The first measure requested by Cameroon is that "the armed forces of the Parties shall withdraw to the position they were occupying before the Nigerian armed attack of 3 February 1996" (emphasis added). This must lead one to wonder where the armed forces of the Parties were positioned prior to 3 February 1996? Although this was denied by Cameroon (CR 96/4, p. 67) there was no indication of the specific place that the Cameroonian armed forces were occupying. An indication was given in one of Cameroon's maps as to the location of the Nigerian armed forces since 3 February 1996 and since 16 and 17 February 1996, and no location of Cameroon's forces was indicated. However Nigeria claimed that her forces were all the time positioned at those locations. If, arguendo, these locations were occupied by the Nigerian armed forces before 3 February 1996, to indicate a provisional measure that Nigeria should withdraw from such places which it claims to be its territory would clearly be prejudging the issue. Nigeria has persistently claimed that
At this stage of the proceedings, I would find it difficult, therefore, to support the decision of the Court that Nigeria should withdraw "from its territory". Apart from the controversial aspect of the binding or non-binding nature of the indication of provisional measures, it is my humble view that the Court should be cautious and refrain from making an Order which is impossible to comply with. The Court does not do anything in vain, judicium non debet esse illusorium; suum effectum habere debet.
(iii) Preservation of the respective rights of the Parties pending final judgment in the case
This is a very important factor to be considered by the Court in a matter of this kind. Sir Gerald Fitzmaurice explained it by saying that
This can be seen as the glaring difficulty in the second request of Cameroon when the Court is asked to request that "the parties shall abstain from all military activity along the entire boundary until the judgment of the Court takes place" (emphasis added). There are four obvious difficulties here, which constitute reasons why the Court cannot possibly grant this request:
Consequently, it is very doubtful whether the Court can indicate provisional measures along the lines suggested by Cameroon in its second request, and this should also be rejected.
(iv) Preservation of rights/non-aggravation of disputes:
The need for the preservation of rights is the legal basis that entitles the Court to indicate provisional measures under Article 41 of the Statute, that is, in order "to preserve the respective rights of either party". In the past this provision was interpreted strictly. Although some other conventions such as the 1907 Washington Convention for the Central American Court give the "non-aggravation of the dispute" as the legal basis for granting such provisional measures, the Court has until recently been most reluctant to import this idea of non-aggravation or expansion of the dispute or conflict into its jurisprudence. In fact it was difficult to define what would amount to a preservation of rights. This difficulty can be appreciated if one refers to the Order of the Permanent Court of International Justice in the case concerning the Legal Status of the South-Eastern Territory of Greenland, where the Court remarked:
Thus, in the past, Article 41 of the Statute was very strictly interpreted and some positivists are still of the view that this should be so. For example, of the six applications that came before the Permanent Court, only two led to the indication of interim measures. In the case concerning the Denunciation of the Treaty of 2 November 1865 between China and Belgium of 1926, President Huber issued an Order indicating provisional measures pending the decision of the Court which eventually decided that it had no jurisdiction to deal with the merits of the case. Subsequently the Parties agreed on a provisional measure of their own. In the Factory at Chorzow case of 1927, the Legal Status of the South-Eastern Territory of Greenland case of 1932, and the Polish Agrarian Reform and German Minority case of 1933, the Court declined all the requests for the indication for provisional measures of protection. In the case concerning the Prince von Pless Administration it was President Adatci who urged the Polish Minister of Foreign Affairs to exercise some measure of restraint until the Court could meet. Subsequently the Government of Poland rectified what it deemed to be an error, to the satisfaction of the German Government, and the Court made an Order taking note of the declarations made by the two Governments.
The present Court has dealt with 18 requests for the indication of provisional measures [Such provisional measures have been requested in the following 17 cases: Anglo - Iranian Oil Co. (United Kingdom v. Iran); Interhandel (Switzerland v. United States of America); Fisheries Jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland); Nuclear Tests (Australia v. France) (New Zealand v. France); Trial of Pakistani Prisoners of War (Pakistan v. India); Aegean Sea Continental Shelf (Greece v. Turkey); United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America); Frontier Dispute (Burkina Faso/Republic of Mali) (case referred to a Chamber); Border and Transborder Armed Actions (Nicaragua v. Honduras) (in this case the request was withdrawn); Arbitral Award of 31 July 1989 (Guinea - Bissau v. Senegal); Passage through the Great Belt (Finland v. Denmark); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States of America); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (in this case two requests were made by Bosnia and Herzegovina and one by Yugoslavia (Serbia and Montenegro).]. Of these requests, one was discontinued (Trial of Pakistani Prisoners of War case), one was withdrawn (Border and Transborder Armed Actions (Nicaragua v. Honduras case), the Court indicated provisional measures in nine instances and declined to do so in seven. Again in the recent past the Court has been more inclined to indicate provisional measures in matters involving armed conflicts or violent incidents. The examples are the case concerning the Application of the Convention of the Prevention and Punishment of the Crime of Genocide, the Frontier Dispute case and the case concerning Military and Paramilitary Activities in and against Nicaragua.
Recent decisions of the Court and its Chambers have given a more liberal interpretation to this issue of the preservation of rights. However it must first be noted that in 1939 in the Electricity Company of Sofia and Bulgaria case the Permanent Court of International Justice issued an Order indicating provisional measures and stated that during the period in which the case was pending
This was an early indication of extending the concept of the rights of the Parties to include the avoidance of incidents, which was apparently rejected in the South-Eastern Territory of Greenland case (although this decision was explained in other terms, that is, by saying that the Parties could no longer be affected by the legal positions one way or the other).
In the Aegean Sea Continental Shelf case of 1976 the Court refused to decide this issue of the protection of rights:
In 1984, in the case concerning Military and Paramilitary Activities in and against Nicaragua, the Court unanimously indicated a provisional measure providing that
One may therefore reasonably assume that international law and the jurisprudence of the Court have been further developed along this line. In all cases involving questions of armed conflicts involving the loss of lives and properties, the protection of the respective rights of the parties includes the need for the avoidance, by the parties, of any aggravation or extension of the dispute or hostile incidents.
In fact the Chamber of the Court boldly pronounced on this particular issue in 1986 in the Frontier Dispute case between Burkina Faso and the Republic of Mali. There the Chamber observed as follows:
This "power" which the Court or the Chamber of the Court now justifiably, as I believe, claimed to "possess" was recently confirmed in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. In the Order of the Court of 8 April 1993, both Parties were directed
In view of what I have said above, the purpose and content of Article 41 of the Statute is not and cannot be restricted only to the preservation of the prospective rights of the parties in a matter like the one before the Court. The situation calls for an order proprio motu under Article 75 of the Rules of Court, hence my reason for voting with the majority of the Court on the first operative part of the Order. Inherently, the issue of non-aggravation and non-extension is not only linked with the protection of the prospective rights of litigants, but it is an integral part of that protection, and provides a basis upon which an indication can be given.
(v) Irreparable harm or prejudice
Another object of consideration for the indication of provisional measures is whether irreparable harm or prejudice might occur within the framework of a dispute, if that dispute is not prevented. This factor is not unconnected with the need to preserve the rights of the parties because irreparable harm or prejudice to any of the parties would in most cases amount to a deprivation of rights. Although an indication of provisional measures to this end may prevent future occurrences of the same kind of threat, most past incidents cannot now be remedied. In the Fisheries Jurisdiction case the Court noted that, according to the Government of Iceland, to "freeze the present dangerous situation might cause irreparable harm to the interests of the Icelandic nation" (Fisheries Jurisdiction (United Kingdom v. Iceland), Order of 12 July 1973, I.C.J. Reports 1973, p. 303). The human life element was considered as "irreparable" in the case concerning the United States Diplomatic and Consular Staff in Tehran where the United States sought to protect
Evidently those indications of provisional measures whether simply for the preservation of rights, the avoidance of an aggravation or extension of the dispute or an act such as might cause irreparable harm or prejudice to the parties have always had an element of protection and preservation of human life and/or property. In the United States Diplomatic and Consular Staff in Tehran case the Court remarked that a
Similarly, in the matter before this Court, indisputable facts have been adduced to show that there has been human suffering, death, injury and even some people missing on both sides. It is also clear that the majority of the inhabitants of this area of the Bakassi Peninsula are fishermen who ought not to be deprived of their livelihood. On its own the indication proprio motu by the Court that the Parties should cease from acts of aggression and from any extension of the dispute should definitely alleviate the sufferings and loss of life and property caused to the people living in the Bakassi Peninsula.
(vi) Preservation of evidence
The Court has seldom indicated provisional measures for the preservation of evidence. Although this aspect was mentioned in the case concerning the Denunciation of the Treaty of 2 November 1865 between China and Belgium, the Court declined to indicate provisional measures to this effect in the Aegean Sea Continental Shelf case in its Order of 11 September 1976. In one case where such a request was granted there was agreement between the Parties, that is, in the case concerning the Frontier Dispute between Burkina Faso and the Republic of Mali where a clear cease-fire line had previously been defined by agreement.
Having regard to the jurisprudence and the position of the Court with regard to Cameroon's request for an indication for provisional measures, it is difficult for the Court to exercise its discretion to grant the third request of Cameroon. The third request of Cameroon is that "the Parties shall abstain from any act or action which might hamper the gathering of evidence in the present case" (emphasis added) - although no such measure can, in my view, be indicated by the Court for the following reasons:
It is for all these reasons that I have come to the conclusion that this request made by Cameroon cannot be granted by the Court. It follows that the three requests made in the request of Cameroon on 10 February 1996 cannot be indicated.
V. THE COURT'S EXERCISE OF ITS POWER UNDER ARTICLE 75 OF THE RULES OF COURT
There are many reasons why the Court should indicate only the provisional measure which I have voted for in paragraph 1 of the dispositif.
1. Admittedly, the Court is not in a position to verify and therefore rely upon all the conflicting facts placed before it, although there are some that are uncontroverted as I have stated above. They provide compelling reasons why the Court cannot ignore this apparently explosive situation in the Bakassi Peninsula and fail to indicate provisional measures.
2. The judicial intervention of the Court in this matter is not exclusive of but rather complementary to the other efforts of the Security Council, the Secretary-General of the United Nations, President Eyadema of Togo, and the Organization of African Unity through its Secretary-General, Mr. Salim A. Salim, but the Court should concern itself only with its legal and judicial assignment and nothing more.
3. Both Parties recognize the inherent danger threatening the Bakassi Peninsula at this time and would prefer a peaceful resolution of the dispute. Evidence of this from the Nigerian side is provided by the letter of the Agent of Nigeria dated 16 February 1996. In a statement made on 6 March 1996 before the Court, Nigeria said:
4. Both Parties have been involved in various attempts to resolve the dispute peacefully and amicably. These are reflected in the communiqués issued in Tunis and in Togo.
5. In the recent past, the Court has indicated provisional measures in matters of this nature. It did so in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (I.C.J. Reports 1984, p. 167), the Chamber's case concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 3) and the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (I.C.J. Reports 1993, p. 3) and there is therefore no reason why it should not indicate provisional measures in similar circumstances, when incidents of armed hostilities are being alleged and recognized.
6. Furthermore, the Court, on a wider legal basis, is obliged to ensure that all member States of the United Nations (which include Cameroon and Nigeria) are reminded and enjoined to carry out their avowed and sacred duty under the Charter of the United Nations, which provides that:
It is for all the aforementioned reasons that I have been prompted to vote in favour of the first operative part of the Order but to decline to vote for the indication of the remaining four provisional measures by the Court.
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