23 Dec 2007 |
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We
must be ready to dare all for our country. For history does not long entrust the
care of freedom to the weak or the timid.
– Dwight D. Eisenhower
There
is no doubt that after the initial post-Abacha hurrahs that heralded Nigeria’s
return as a responsible member of the comity of nations, ours has been a foreign
policy collapse of the worst kind. The incredibly shrinking Giant of Africa
today occupies no more than a footnote in international affairs as every
opportunity keeps being squandered by those who are adept at playing statesmen
without the requisite substance. There is no better example of how much we’ve
fallen than our handling of the Bakassi affair.
Just
before he left to genuflect before George W. Bush in America,
President Umaru Yar’Adua (supposedly playing to his image as a peace-loving,
rule-of-law-enthusiast) wrote the Senate to ratify the Greentree agreement,
shortly after the same Senate had thoughtfully questioned it. Of course, it
would have been difficult to question Yar’Adua’s action if all he did was send
the Agreement to the Senate to look at and make of it what they deem fit. But
presenting them with what seems like a fait accompli and urging them to ratify
it under the spurious notion that such an act would indicate we are “a
responsible member of the comity of nations” smacks not only of intellectual
vacuity, but patriotic deficiency as well. With such action, it’s obvious that Nigeria is sleepwalking into surrender; but the pain is not in the surrender itself,
rather it’s in the manner of it.
Now,
it is not my intention to present the case here as anti-ICJ nor should it be
seen as a call to arms against Cameroon in defence of our territorial integrity. Rather, it should simply be seen as a
pro-Nigerian view, based on what I consider to be the true responsibility of the
Nigerian government to the people of Nigeria in this affair. It is not a view supportive of a violation of international law,
but one that takes into cognizance the complexities of international relations
and the reality that only nations that pursue enlightened self-interest
invariably make progress and earn the respect of others. I’m of the view that
rather than explore fully our rights under international law in pursuit of our
claims over the Bakassi peninsula, including pulling our weight amongst our
friends and partners in the international sphere, we are chickening out too
early after such monumental waste of national emotions and billions of dollars
of public fund.
In
addressing this issue, I wouldn’t be getting into the nitty-gritty of the
politics of the World
Court and why we lost or the mistakes that have been made over the years by successive
Nigerian administrations and so on. Enough has been said on all that already.
Instead, I’d want to concentrate on now and advance reasons why I think we can
still rescue the Bakassi chestnut from the fire without breaching international
law and without losing face. It is important that we acknowledge that
international law and international relations are not governed by simple
moralities or sentiments and also that nations are not individuals capable of
such feelings. Nonetheless, a nation is the most active symbol of a people’s
corporate character not only to the extent that it represents their yearnings
and aspirations, but also because it represents their true strength and
contemporary stature as a people. History tells us that nations are what great
men and women live and die for. A nation defines its people.
The
first mistake those who criticize the Senate are making is the assumption that
we would be breaching international law if the Senate does not ratify the
Greentree agreement. Nothing can be further from the truth. International law is
not imposed or forced on nations; it is accepted or consented to by them freely.
This is the principle that governs treaties and that is why countries are given
the last say before agreements become international treaties properly-so-called.
This principle is enshrined in Section 12(1) of the Constitution of the Federal
Republic of Nigeria (1999) which states: “No treaty between the Federation and
any other country shall have the force of law except to the extent to which any
such treaty has been enacted into law by the National Assembly”. Clearly, the
aim of this provision is to restate the primacy of the National Assembly in
law-making and to discourage executive impunity in the conduct of international
affairs and national commitment to international agreements. Indeed, the Supreme
Court, in the case of General Sani Abacha & Ors V Chief Gani Fawehinmi
(2000) has given judicial authority to this position in its interpretation
of the ratification provisions of Section 12(1) of the Constitution.
Bola
Ajibola, one man who has contributed and who is still contributing to the
Bakassi debacle in an advisory and functional capacity, suggested that the
Senate action was in violation of the 1969 Vienna Convention on the Laws of
Treaties (VCLT) and that the requirement of ratification is only a formality.
Again, these are misconceptions because, to start with, the Convention is
limited in scope and application to only those agreements between states that
have been concluded. In other words, no treaty is concluded until it goes
through the ratification process – that is the process of being nationally
accepted by the state showing an intention to be bound by the agreement.
Furthermore, Article 14(1)(c) of the same 1969 Vienna Convention on the Law of
Treaties makes it clear that the consent of a state to be bound by a treaty is
expressed by ratification when “the representative of the State has signed the
treaty subject to ratification”. Apart from the fact that our Constitution
clearly makes provision for ratification by the National Assembly, the conduct
of the former president, Olusegun Obasanjo, in asking the last Senate for
ratification and the present act of President Yar’Adua in also asking the
present Senate for ratification clearly show that Obasanjo as the then
“representative of State” signed the Greetree treaty subject to ratification and
that the national consent to be bound is to be expressed through ratification by
the National Assembly. Thus, Bola Ajibola is just being disingenuous when he
claims that ratification is supposed to be a mere formality. Indeed,
ratification represents the most important legal and conclusive step to be taken
before a nation is bound to an international agreement. It therefore requires
the most thorough examination of the agreement before a decision to ratify or
not to ratify is taken.
It
is crucial to know that treaties are contracts between states. But unlike
contracts between individuals where signatures may be conclusive, with treaties,
signatures are mere declarations of intentions to enter an agreement on terms
stated. To be bound and to make the contract/treaty conclusive, every state
signatory must ratify the treaty. Every state has its own ratification or
equivalent process and requirement and for Nigeria,
such ratification has to be done by the National Assembly under the provision of
Section 12(1) of the 1999 Constitution. Thus, as far as the Greentree Agreement
is yet to be so ratified by the National Assembly, it remains only an intention,
which on its own imposes no legal obligation on the state since the condition
precedent hasn’t been met. This is not a case of domestic law overruling
international law, but the agreement not yet being law in international or
national sense, even though intention to enter into agreement on terms stated
has been shown by representatives of States through their signatures to the
‘agreement’. A good example of what we are talking about here is the Kyoto
Treaty, which today is not binding on the United States (even though it’s been
signed by the Clinton administration since November 1998) simply because it is
yet to be ratified by the United States’ Senate.
Having
said the above, it is also important to point out that in practice it is not
necessary for every agreement or treaty to be ratified formally by the National
Assembly before they can be implemented since states enter into several
agreements yearly and it would take up a huge chunk of legislative time to
formally ratify each and every one. In other words, conventions, rules of
convenience and common sense have been developed which allows for certain
categories of agreements to take effect without formal ratification, though
their continued implementation will be deemed to have the consent of the
National Assembly since Section 12(1) of the Constitution implies that even
where a treaty has not been formally enacted into law by the National Assembly,
but has come into force by mere convenience or executive fiat, the National
Assembly can always resort to its powers under Section 12(1) to declare such a
treaty not binding. Agreements that fall into this category are usually minor,
bilateral or trade agreements with other states requiring performance of certain
obligations by each party for mutual benefit. But where the agreement is of such
importance as the ceding of a part of the nation to another country or a
demarcation of borders, there is no doubt that ratification is and should be an
absolute necessity. There is nothing in modern international law or the
interpretation of the provisions of the Vienna Convention on the Law of Treaties
that negates this requirement.
Another
mistake is the assumption in some quarters that to not hand over Bakassi now
would be contemptuous of the ruling of the ICJ to which our country is bound.
They say this will invite severe sanctions from the international community,
including the possibility of the use of force against Nigeria.
They base their reasoning on the fact that we’ve willingly accepted the
compulsory jurisdiction of the Court without reservation under the optional
clause and that since it is the first and last
Court with no provision for appeal, we simply have to take our medicine and get on
with it. Again, these views are based on lack of understanding of how the
International Court of Justice works and its position as only one organ of
international mediation and adjudication, which in the hierarchy of the United
Nations, does not have the last say over any issue it’s adjudicated on. Yet,
inasmuch as the Court has no appeal provisions, it does recognize the need to
correct a wrong judgment at a latter date. Article 61 of the Statute of the
Court provides for an application for revision of a judgment to be made within
ten years of the judgment being delivered by the court, though “only
when it is based upon the discovery of some fact of such a nature as to be a
decisive factor, which fact was, when 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” (see also Article 99, Rules 1-5, ICJ Rules
of Court).
Naturally,
one must expect that the terms to welcome any application for revision must be
strict. But, for our purpose, what we need to note is that we have a ten-year
period from October 2002 to investigate and look for new facts to bring before
the court to compel a revision. Though Article 61(3) of the Statute of the Court
mentions that the Court may require previous compliance with terms of the
judgment before it admits proceedings in revision, this is not an obligation,
only a possibility. And clearly, it would depend on the nature of the case and
the potential effect of the decision on the people concerned. No one would
reasonably expect Nigeria to gladly give up her nationals and a piece of her
territory to another country when she’s yet to exhaust every available processes
and options within the international system. At any rate, Nigeria,
having partly complied with the Court’s decision by handing over part of the
peninsula to Cameroon,
cannot be said to be in breach if it halts further cession of Bakassi while it
pursues this angle of revision. We may not have that new and decisive fact now,
but we’ve had 10 years since 2002 and still have almost 5 years from now to seek
and find it. All I’m saying here is that there was and still is no reason for
the precipitate action of handing over Bakassi to Cameroon by the Nigerian government in purported compliance with the Court’s judgment as
far as the judicial angle is still very much open.
Another
huge point that our government seems to be ignoring is the fact that considering
the way the United Nations Organization works in practice, the Court is not the
de facto court of last resort and its decisions are usually not final. First, it
cannot enforce its decisions because it has to depend on the Security Council to
do this. More importantly, Article 94(2) of the United Nations Charter itself
gives the Security Council a type of review power over the decision of the Court
(however, in terms of de jure hierarchy, both are regarded as institutionally
equal, yet the Security Council is clearly at the de facto apex of the
hierarchy). Obviously, the Security Council is not explicitly given the power to
review the Court’s decision, but this is in effect what it does in exercising
its discretion under Article 94(2). Analysis of the wordings of the Article,
history of the provision and a comparison with the equivalent provision in the
Covenant of the League
of Nations,
including the way the Security Council has exercised the discretion since the
establishment of the UN, will reveal clearly this fact.
Though,
Article 94(1) states that each Member of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party, Article 94(2)
states: “If any party to a case fails to perform the obligations incumbent upon
it under a judgment rendered by the Court, the other party may have recourse to
the Security Council, which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give effect to the judgment”. The above is
quite different in tone from the original Article 13(4) of the Covenant of the
League of Nations, which states: “The Members of the League agree that they will
carry out in full good faith any award or decision that may be rendered and that
they will not resort to war against a Member of the League which complies
therewith. In the event of any failure to carry out such an award or decision,
the Council shall propose what steps should be taken to give effect
thereto”.
Indeed,
during the discussions in San
Francisco at the United Nations Conference on International Organization (leading up to
the signing of the UN Charter in 1945), issues were raised over the final
version of Article 94(2), especially with the phrase “if it deems necessary”.
The argument was that this might jeopardize the independence of the Court
vis-à-vis the Security Council. But in the end, it was resolved that “the action
to be taken by the Security Council was permissive rather than obligatory and
that the addition of the aforementioned phrase merely made more clear the
discretionary power of the Security Council”. In effect, the provision grants
the Security Council the power to use political means to undercut the Court’s
decision where necessary. In fact, in practice, the Security Council has further
reinforced this view by its action and inaction over cases of non-compliance
brought before it since the establishment of the United Nations Organization.
For instance, in 1951, the Security Council refused to enforce the orders of the
Court against Iran over the nationalization of the Anglo-Persian Oil Company. Again, in 1986, it
could not enforce the Court’s decision against the US in the Case of the Military and Paramilitary Activities in and Against Nicaragua
and in 1993 the same tendency was exhibited in the case of Bosnia-Herzegovina
against Yugoslavia.
Indeed, no case of the decision of the ICJ is on record to have been enforced by
the Security Council. The reason, of course, is clear. The Security Council
recognizes that the Court’s decision will always have to play second fiddle to
political settlements.
The
legal processes enumerated above apart, it would seem Nigeria is not focusing on the realpolitik of the situation as well. For instance, the
way the Nigerian government impliedly claimed responsibility for the reported
killing of 21 Cameroonian soldiers is precipitate and ill-advised. While it was
quick to say our soldiers are not involved, it leaves people with the impression
that the attack was by Nigerian militants of the Niger-Delta. Yet, in Cameroon,
the revelations coming out seem to suggest it was a problem within Cameroon firmly rooted in some internal infighting and struggle for control of the
finance and arms meant for “Operation Delta” in Bakassi. Even as President Paul
Biya was replacing Captain Oyono Mveng with Colonel Hyppolite Ebaka, some
Cameroonian military survivors of the attack are claiming those who attacked
them were dressed in the uniform of the Cameroonian military and spoke fluent
French. Indeed, the Cameroonian Minister of Defence Remy Ze Meka has been under
huge pressure to respond to claims made by a group of non-commissioned officers
in an open letter to Paul Biya stating that the Bakassi killings were engineered
by Captain Oyono Mveng and Lt Colonel Akah Robinson. The Cameroonian authorities
have been very keen to keep things hush-hush, promising an investigation that a
lot of Cameroonians are skeptical about. Yet, Nigeria s name has been dragged in the mud with our government helping them along!
There’s
also something to say about Yar’Adua gaffe over AFRICOM and the relationship of
that with the Bakassi situation. In reviewing the whole Bakassi debacle, I have
come to believe that the ‘mistakes’ made by our national leaderships over the
years were/are deliberate. There are so many reasons to suspect their roles, not
least their eagerness to protect and advance the interests of their
international ‘friends’ even to the seemingly eternal detriment of fellow
Nigerians and Africans. There is so much to do with oil and security in that
region that it is quite possible that the ‘international’ support for Cameroon’s
claim over Bakassi may have more to do with these international interests
preferring a weaker African state than Nigeria to nominally control that vital part of the Gulf of Guinea.
Clearly, the United
States, France, Germany and the United
Kingdom will have bigger say in what happens in the area under Cameroon than if it were to be under Nigeria.
Also, considering that President Bush announced the establishment of AFRICOM a
week after President Hu Jintao of China landed in Cameroon for his African tour,
it is not impossible that the move is aimed at checkmating an equally oil-hungry
China, especially with the latter’s successful economic incursions into the
continent. All this of course does not spell anything good for Africa.
What Yar’Adua has done by caving in over the AFRICOM issue is to throw away a
vital bargaining chip over Bakassi. Not only are we leaving our Eastern outlet
to the Atlantic at the mercy of Cameroon, we have effectively given the United
States and its western allies a good base to overlook our own oil-rich but
volatile Niger-Delta. Our Eastern naval command would have their work cut out as
Cameroonian and other foreign guns will watch our vessels through the corridor
thereby further compromising our national security.
The
Nigerian government must now wake up to its responsibility towards Bakassians
and Nigeria by halting all manner of cession of Bakassi. The Yar’Adua government must stop
forthwith all manner of pressures it’s putting on the Senate to ratify an
agreement that was reached without consultation with Nigerians and the people
that matter - an agreement that is clearly not in the interest of our nation.
Our government must now take the moral high ground by resorting to one of the
most hallowed provisions of the United Nations Charter, which was indeed one of
the first principles espoused by the world body in Article 1 of the Charter.
Indeed, one of the Purposes of the UN listed in Article 1 of the Charter is the
development of friendly relations among nations “based on respect for the
principle of equal rights and self-determination of peoples”. Article 1(1) of
the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights also recognize all peoples’
right to self-determination. This means by virtue of that right “they freely
determine their political status and freely pursue their economic, social and
cultural development”. Article 1(3) of the Covenants enjoins states to “promote
the realization of the right of self-determination” and to also “respect that
right, in conformity with the provisions of the Charter of the United Nations”.
Countless international instruments, apart from the ones mentioned above,
recognize this right.
Therefore, Nigeria does not have to continue making the case that Bakassians are overwhelmingly
Nigerians to support its claim to the territory. This fact has been accepted by
everyone. However, if for reasons of some questionable ‘colonial’ treaty our
people are now being denied a right to be part of a country they’ve always been,
the principle of self-determination affords them the right to freely determine
their political and national status and development. Nigeria should be calling on the United Nations to organize a plebiscite in the region
to determine what the people themselves want for themselves. With the natural
and human resources in the area, the Bakassi people can sustain a nation of
their own, if that’s what they want. Nigeria should be in the vanguard of giving voice to the UN Charter in this regard
without necessarily fighting that these people should be Nigerians. Let them
decide for themselves what they want in line with the principle of
self-determination and let the international community give backing to whatever
decision they take as a people.
Let
me end this by reiterating my basic point. The argument that the October 10,
2002 World Court judgment on Bakassi should mark the end of Nigeria’s
agitation for the peninsula is short-sighted. While the decision is final, it is
only final in the judicial sense (and, even then, there’s still provision for
review within 10 years). But in international relations, the decision of the
Court is not final, because political and extra-adjudicatory processes can be
put in place to address a recurrent problem that defies judicial solution. The
UN understands that they’re dealing here with a people’s heritage, culture and
their right to self-determination. The Security Council understands that there
is no judicial authority that can defeat a people’s inalienable right to
self-determination. They recognize that the Bakassi people are protected under
the UN Charter itself from the adverse judgment/decision of any of its organs.
But if the Nigerian government does not get out there and make our case, nobody
will make it for us. We still have the opportunity to save our nation from this
monumental embarrassment by exploiting the provisions of international law and
deploying the right strategies in our dealings with others internationally. This
isn’t about going to war with Cameroon over Bakassi. We can win back and retain our land without firing a shot. What we
need is for our government to simply act less timid and be more proactive
internationally. Nigeria should simply pull her weight.
Kennedy Emetulu, London
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