[b]How Nigeria can win back Bakassi Peninsula – Oyebode

By Linus Obogo05/08/2012 00:00:00

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Professor Akin Oyebode is a renowned international law scholar and Head of Department of International Law and Jurisprudence of the University of Lagos (Unilag), Akoka, Lagos. In this interview with Linus Obogo, Oyebode took a critical look at the Bakassi conundrum, and its consequent fallout. Excerpts



Cross River, a once littoral state has become a victim for the loss of the Bakassi Peninsula to the Cameroon. Should it be made to pay so much for what happened?

Let me begin from the first principle, which is that states are not subjects of international law, their nuisance values are circumscribed within the territory they are located. It is rather the Federal Government that personifies and epitomizes Nigeria at the international plain. Although I am aware that Obong of Calabar went to The Hague, but strictly speaking, the dispute was between Cameroon and Nigeria and Cross River and Cameroon. But politically, it was not too wise to have alienated the states concerned.

However, the fallout from the decision to cede the Peninsula to the Cameroon will inevitably affect Cross River State because it robbed it from certain benefits which were to accrue to it because it was a littoral state in terms of the oil wells which would have formed the basis of partaking in what is called 13% derivation.

In the light of the Supreme Court ruling or judgment of July 10, on the status of a littoral state and the consequent loss of the 76 oil wells, observers and keen followers of the crisis are of the opinion that Cross River State is being made to bear too much brunt more than any other interest in the entire matter. Do you share similar concern sir?

I agree with you totally that the loss of those 76 oil wells and the effective declaration that Cross Rive State was no longer possessing of any outlet to sea definitely created a detriment to the interest of Cross River State. Aside from the loss of revenue in terms of derivation, the naval base in Calabar, which formed the very important lynchpin of patrol and effective security within the seaboard of Nigeria has been somewhat circumscribed, hemmed in and restricted, if you like, on account of that decision.

You may want to ask, what is the utility of a naval base which is the Headquarters of the Eastern Naval Command which will no longer have an outlet to the sea except and unless only to the extent that permission is sought and obtained from Cameroon before our war ships can move out of the estuary to the Atlantic Ocean.

Putting it in perspective, the judgment has grievous geo-political implications. I am aware though that the Green Tree Agreement which is still in contention at the National Assembly provided for the ingress and egress of the Nigerian vessels which Cameroon is obliged not to deny us the right not to move in and out of the estuary of the Bakassi Peninsula. But suppose, just suppose Cameroon denies us entry and exit, what are we going to do? Are we prepared to go to war against Cameroon in order to unscramble the egg? That is the question I leave for Ebele Goodluck Jonathan to ponder over.

Following the judgment of the Supreme Court, some enlightened opinions have argued that the apex court should have played a more conciliatory, advisory and equitable role rather than to have given a straight legal verdict as it did concerning the disputed 76 oil wells. What’s your thought on this?

Honestly, nothing would have prevented the Supreme Court by way of obita dicta, from making a passing remark on the geo-political consequences so that the Federal Government could take a cue to mitigate the losses or damage that Cross River State might incur. So, nothing stopped the Supreme Court from making obita dicta in that respect.

There are precedents that can be cited. For instance, when Ekiti State was arguing before the Supreme Court in terms of the sharing formula between it and Ondo State, the apex court had had to adopt what could be described as ‘Solomonic’ wisdom to say that Ondo State should not be too greedy and provided some 60/40 formula in such a way that no winner took it all. That for me could have been a very good precedent for the Supreme Court itself to have imbibed to arrive at equitable settlement.

Even in international law, when there is a dispute in terms of international boundaries, continental shelf and what have you, the equidistance principle and principle of equality and equity are not unknown at the International Court of Justice. But in looking at the question formulated for determination, I think the Supreme Court, was rather very legalistic in arriving at merely looking at the law of the matter rather than at the equity and the politics of the issue.

With the consequent designation of Cross River State as a non-littoral state by the National Boundary Commission (NBC), following the re-delineating of its seaward boundary and the attendant security implications for Nigeria, would you say the NBC acted prudently in the handling of the delicate issue?

The National Boundary Commission is an organ of the Federal Government responsible for boundary matters. It was acting perfectly in accordance with its mandate. But with that being said, I am not too sure if the mandate of the commission would extend to the international boundaries of Nigeria. The NBC has been involved in boundary disputes between different states and since this one was also a boundary dispute between two different states, so to speak, it could be said that it might have acted within its mandate.

The only issue here is the geo-political aspect of that action in terms of delineation of the international boundaries in effect, of Nigeria and Cameroon is a matter that will need to be revisited. This is because even the boundary adjustment which was effected during the Marwa 1971, there was a map attached to that declaration in terms of the boundary adjustment that was done by the Surveyor-General of the Federation which became an albatross on the neck of Nigeria. This was what further complicated our matter at the International Court of Justice, so much so that when late Justice Elias was at the ICJ in 1972, he warned Nigeria that because of what General Yakubu Gowon (rtd) conceded to Ahmadu Ahijo, it might create problems in future and his foresight came to pass when the matter came before the ICJ.

What I am saying in effect is that the office of the NBC and the Surveyor-General of the Federation should have been guided by the expertise of international lawyers when they are deliberating on matters that have international legal implications.

There is also the argument that Nigeria should have protested the composition of the court as presided over by a French judge. Did Nigeria act wisely in terms of legal representation as regards Bakassi?

Under the statute of the International Court of Justice, which is part and parcel of the UN Charter,

The argument of our legal team of Chief Richard Akinjide said such a declaration coming in March of 1994 should neither be binding nor taken into effect until twelve months after in accordance with the Vienna Convention Treaties of 1969. Regrettably, that preliminary objection was rejected. It was at that point that Nigeria ought to have walked out of the proceeding. But Chief Akinjide and his fellow travelers decided to stay on board thinking that they could still wangle something out of that situation.

I must also point out that even if you make a declaration accepting the compulsory jurisdiction of the court, nothing stops you from modifying your declaration depending on the circumstance. Recall that in 1984, in the case between the United States and Nicaragua, the former modified its declaration using the Connolly Amendment saying that it would not accept the jurisdiction of the court on any matter arising from the Western Hemisphere. This effectively removed the jurisdiction of the court in relation to the case brought by Nicaragua. The US diplomats at The Hague got wind of what was coming and informed their home government. This is what countries all over the world are supposed to do. But the Nigeria diplomats at The Hague were moonlighting and savouring the peace of the Netherlands and did not even know, much more alert the Nigerian government that Cameroon had brought a matter before the ICJ which affected her interest.

So, I will lay the blame squarely at the doorstep of the Nigerian Mission at The Hague. At that point in time, Nigeria would have gotten wind of what was coming to quickly modify its 1965 declaration on the jurisdiction of the court on any matter pertaining to West Africa.

It was actually plausible for Nigeria to have walked out, but sadly, it did not take that option clearly opened to it.

You also raised the issue of the French presiding judge, that again was borne out of naiveté by the Nigerian legal team represented by Chief Akinjide and Prince Bola Ajibola. It was something they strongly contested because of the special relationship that existed between Cameroon and France. Do not forget also that before the judgment was delivered, President Sakorzi had invited Presidents Obasanjo and Paul Biya to France, urging them to accept the decision that would be reached by the court. By this time, Nigeria should have smelt a rat. I do not know what happened, but Obasanjo allowed himself to be dragooned to Paris to enter into a Modus Vivendi. It was impolitic and naïve.

As if that was not damning enough, the Green Tree Agreement was adopted in New York under the aegis of the Secretary-General of the UN. Again, Obasanjo agreed with Paul Biya on the implementation of the decision, which to say the least was gratuitous. We made so many errors and I understand that the case cost us $300million. It was most infelicitous situation which I hope will never again repeat itself in this country. Even when we compare the team that represented Nigeria with those on the side of Cameroon, it will amaze you that Cameroon had 12 professors of French, English and Cameroonian nationals. But when you look at the Nigerian team, apart from the three professors of which two were English and one Nigerian, I have my doubt if indeed, we paraded our first eleven.

Before the case got underway, two distinguished international lawyers of this country, Professors Ayo Ajomo and Itsejaye Sagay were peremptorily removed by the late Abacha junta, alleging that they had NADECO sympathies. It does not matter where your lawyer faces, whether Jerusalem or Syria. All you need is what is between his ears. It was a big faux pas to have removed such distinguished international legal experts. And I hope we do not make this mistake again. Honestly, we did not have a very good outing in that debacle.



Is the ICJ judgment reviewable, in order word, can it be revisited?

I have heard noises in recent past about the possibility of a review. Well, the statute allowed cases to be revisited but subject to a very big proviso. There must be new facts. In law, we have what is called Res Judicata. It means that a decided issue cannot be re-litigated except new facts emerge which were not before the court when the case was decided.

Some people have raised the issue of the right of self-determination by residents of the area whose opinions were not sought. Again, this is arguable. But in honest view, the only way to reset the relationship between Nigeria and Cameroon is either we go to war and win the territory back by force of arms, which is not unheard in history or we buy back the Bakassi Peninsula from Cameroon. After all, Alaska was sold to the US by Russia.

Part of the principle of the Green Tree Agreement is the non-interference with the international right of the people within the Peninsula as well as the preservation of their culture. But as we speak, these rights are being grievously breached. Can this new development lead to the termination of the entire accord by either party?

Oh, why not? This is because GTA provided for the protection of Nigerian residents in the Bakassi and that Cameroon should not harass them and they should be allowed to carry out their activities without fear or molestation peacefully and peaceably. So the harassment of the fishermen in the area constitutes a grave violation of the Green Tree Agreement. I will rather say that it constitutes a material breach of that agreement which authorizes Nigeria to withdraw from or terminate that treaty. Under the law of treaties, we have a provision on termination of treaties where there is what we call material breach. If you look at Article 60 of the Vienna Convention on the law of Treaties, there is a basis for Nigeria to either withdraw or terminate the Green Tree Agreement. These are loopholes for Nigeria to exploit and win back the Peninsula from Cameroon.





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Some interesting bits of history here. I do hope Bakassi is returned to the indigenous inhabitants at some point.