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The court's position regrettably evokes memories of the condescending manner in which the colonialists perceived and treated their victims. For instance, John Westlake, the Whewell Professor of International Law in the University of Cambridge, writing in 1894, derided the "uncivilized natives" and asserted that "in Africa...an importance has sometimes been attached to treaties with uncivilized tribes, and a development has sometimes been given to them, which are more calculated to excite laughter than argument". Writing in the same vein, T. J. Lawrence, unhesitatingly treated "uncivilized regions" as objects, and not subjects, of international law, even though he gleefully accorded international legal status to charted companies. Although he described the international legal status of such companies as being of "a very imperfect and subordinate kind", entities or districts inhabited by "the barbarous or semi-barbarous" did not even merit such status!

It was against the backdrop of this reality that in an article I authored titled "The Role of International Law in the Colonization of Africa: A Review in Light of Recent Calls for Re-colonization" and published in volume 7 of the African Yearbook of International Law (1999), I asserted as follows: "19th century international law...bristles with contradictions and tantalizing mirages. To the extent that nineteenth century international law, given its Eurocentricity, failed to reckon with [the legacy of Africa's authentic history], its claim to universality is undoubtedly suspect". In another passage, I emphatically proclaimed that "thus, it is not a 'heresy' to assert...that international law properly so-called is a 20th century development. Anything prior to that was only a masquerade putting on the garb of international law".

Given this reality, I cautioned that while "one could be tempted to focus on the profound transformation that [international law] has undergone over the years and, basking in the euphoria that it has purged itself of its colonial vestiges, be complacent about its past role...exposing the ignominious role of international law in the colonial project is an imperative exercise that brings with it the liberating realization that to speak of colonialism and its crippling effect in the past tense is to wallow in idle fantasy; thus underscoring the imperative of vigilance".

The urgency of such critical legal scholarship and/or interrogation of the colonial enterprise is the more evident when one recalls the fact that, as Professor Wole Soyinka points out, "at the Berlin Conference the colonial powers ...met to divvy up their interests into states, lumping various peoples and tribes together in some places, or slicing them apart in others like some demented tailor who paid no attention to the fabric, color or pattern of the quilt he was patching together". Indeed, a senior British official's description of how the border between Nigeria and Cameroon was created speaks volumes: "In those days we just took a blue pencil and a rule, and we put it down at Calabar, and drew [a] line to Yola...I recollect thinking when I was sitting having an audience with the Emir [of Yola], surrounded by his tribe, that it was a very good thing that he did not know that I, with a blue pencil, had drawn a line through his territory". As a former British Prime Minister, Lord Salisbury, further acknowledged at a dinner in 1890, following the conclusion of an Anglo-French convention establishing British and French spheres of influence in West Africa, "we have been engaged in drawing lines upon maps where no man's foot ever trod; we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where the mountains and rivers and lakes were".

What are the consequences of this arbitrary partition of Africa? The balkanization of Africa by the colonial powers split persons belonging to the same ethnic group (and hitherto configured in various empires or kingdoms) into different colonial spheres of influence and, in most cases, later constituted the territorial basis for the grant of political independence to present-day African States. Several examples of the arbitrary manner in which ethnic groups were split or amalgamated with other ethnic groups abound: the Somali severed, at various times, into British Somaliland, French Somaliland, Italian Somaliland, the Northern Frontier District of Kenya and the Ogaden (Ogaadeen) region of Ethiopia; the Maasai, bifurcated by the Kenya-Tanzania border; the Bakongo across the Gabon-Congo, Congo-Democratic Republic of Congo(DRC), formerly Zaire, and DRC-Angola boundaries; the Lunda separated by the DRC-Angola and DRC-Zambia boundaries; the Yoruba split into Nigeria, Benin(formerly Dahomey) and Togo; the Gourma, truncated into Burkina Faso (formerly Upper Volta), Togo and Benin; the Tibu, mutilated by the Libya-Chad and Chad-Niger boundaries, as well as the Ewe, dissected into British Togoland, French Togoland and Ghana (formerly Gold Coast).

In the Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judge Bola Ajibola decried this state of affairs and observed that "since 1885 when it was partitioned, Africa has been ruefully nursing the wounds inflicted on it by its colonial past. Remnants of this unenviable colonial heritage intermittently erupt into discordant social, political and even economic upheavals". Aspects of this heritage, he further observes, "continue, like apparitions, to rear their heads, and haunt the entire continent in various jarring and sterile manifestations".

Furthermore, in some cases, as exemplified by the plight of nomadic Somalis, the fragmentation cut off entire clans from their traditional sources of water and pasture for their herds. In one instance, the Mareehaan clan was sliced into three different parts: one part under the British in the Northern Frontier District of Kenya, another under the Italians in the South, and a third in the South-West under Ethiopia. The tragedy is that while those nomads in Italian Somaliland had access to water resources from the Shabeelle River, they lost valuable grazing land on the Ethiopian side. In similar fashion, their kinsmen on the Ethiopian side retained the pastures but were cut off the indispensable water resources on the coast. In the Western Sahara Case, Mauritania described a similar scenario: On account of the artificial frontiers created by the European Powers, the same families and their properties could be found on either side of arbitrarily bisected frontiers; the same was true of wells, lands, burial grounds, watering places and palm oases.

In spite of this reality, the court exhibits its insensitivity by choosing to re-enact the nightmares of the regime engendered by the Berlin conference!

It is, however, refreshing that Judge Al-Khasawneh's separate opinion tasks the colonial question. Judge Al-Khasawneh predicates his vote with the majority solely on the fact that, in his view, "in the period leading to its independence...and since then till the early 1990s, Nigeria, by its actions and omissions and through statements emanating from its officials and legal experts, left no room for doubt that it had acknowledged Cameroonian sovereignty in the Bakassi Peninsula".

Chiding his colleagues for "unnecessarily" and "unfortunately" belabouring the validity of 1913 Anglo-German Treaty, His Lordship could not fathom out why they chose to immerse themselves in the distinction among colonies, protectorates and the so-called "colonial protectorates", given that it is "steeped in confusion both under international law and under the laws of the colonial powers themselves".

Characterizing the Court's approach as one "clearly rooted in an Eurocentric conception of international law based on notions of otherness, as evidenced by the fact that there were at the time in Europe protected principalities without anyone seriously entertaining the idea that they had lost their sovereignty to the protecting power and could be disposed of at its will", he further demonstrated that "the existence of a category of protectorates, the so-called 'colonial protectorates', where the protecting power was free to dispose of the protected territory at will, is a proposition that neither State practice nor judicial precedent supports and is, in all probability, no more than a fiction existing in the minds of some commentators who try to find ex post facto legitimization for unfathomable and illegal facts by the invention of sub-categories where normally applicable rules do not operate". Even assuming, for the sake of argument, that the Berlin conference did sanction such behaviour as evidenced by the State practice emanating from it, His Lordship pointedly asks: "Could this practice be invoked in an African dispute when no African State ... participated in the formation of such practice?"

Finally, His Lordship expresses the view that the Kings and Chiefs of Old Calabar "had the capacity to enter into treaty relations and, unless we start from the false premise that one party to a treaty can unilaterally determine the international status of the other, we can also deduce that the treaty has international legal standing". Accordingly, he faults the Court's distinction between the status of treaties of protection between Great Britain and some entities in North Africa juxtaposed similar treaties in respect of sub-Saharan Africa. According to him, "in the case of Qatar and Bahrain these Sheikhdoms were not independent States when Britain entered into treaty relations of protection with them but Ottoman dominions ruled under the suzerainty of the Ottoman Empire by local chiefs. The same is true of Tunisia". Consequently, His Lordship concludes, "it would be ironic for the Court to decide that those who were under Ottoman suzerainty were in fact sovereign because it suited practical considerations of British policy that they should be so seen, and not those chiefs who were under no one's sovereignty or suzerainty when Great Britain entered into treaties of protection. Not only would this make colonial law and not international law the determining factor, it would also raise doubts regarding the broad consistency of the Court's decisions".

The Plight of the thousands of Nigerians inhabiting the Bakassi Peninsula

It is elementary knowledge, and the court acknowledges as much, that the Bakassi Peninsula is inhabited predominantly by Nigerians of Efik and Efut ancestry. Yet, as Judge ad hoc Ajibola points out in his dissenting opinion, the court failed to reckon with this reality; in consequence of which he christens the judgment of the court an "artificial decision" or, as he further puts it, "a political decision than a legal one".

Given this reality, when the court directs Nigeria to "expeditiously and without condition ... withdraw its administration and its military and police forces" from the Bakassi Peninsula, what becomes of these thousands of Nigerians who, on account of the court's decision, are now aliens on Cameroon territory?

In its judgment, the court "takes note" of the commitment undertaken by the Republic of Cameroon at the hearings to the effect that "faithful to its traditional policy of hospitality and tolerance", it "will continue to afford protection to Nigerians living in the [Bakassi] Peninsula". In practical terms, and against the backdrop of the frosty relationship that has characterized Nigeria's relationship with Cameroon over the Bakassi Peninsula, what does that mean? Does Cameroon, insofar as Nigeria is concerned, expect to be taken seriously when it professes "its traditional policy of hospitality and tolerance"?

The judgment undoubtedly imperils the interests of the thousands of Nigerians in the Bakassi Peninsula in several respects:

_ First, they risk compulsory relocation to Nigeria.

_ Second, they could be subject to restrictions applicable to aliens, such as the requirement of residence permits, visa requirements, etc.

_ Third, their property rights, especially in respect of immovable property, could be abridged or extinguished.

It is imperative, at this juncture, to underscore the fact that in the inter-war era, Woodrow Wilson, former U.S. President, decried the "barter[ing] about" of people "from sovereignty to sovereignty as if they were mere chattels and pawns in a game". Making self-determination "his lodestar" at the Peace Conference, President Wilson articulated the framework for the reconfiguration of the map of Central and Eastern Europe in his famous "Fourteen Points". Self-determination was to be predicated primarily on the principle of nationality; a position endorsed by the Allied Powers but questioned by the Central Powers as bordering on hypocrisy. Accusing the Allied Powers of invoking nationality as a camouflage to disguise their real war aims, to wit, "to dismember and dishonor Germany, Austria-Hungary, Turkey and Bulgaria", the Central Powers asserted that if their adversaries demanded the restoration of invaded rights and liberties, the recognition of the principle of nationality and of the free existence of small States, it would suffice to call to mind "the tragic fate of the Irish and Finish peoples, the obliteration of the freedom and independence of the Boer Republics, the subjection of North Africa by Great Britain, France and Italy and, lastly, the violence brought to bear on Greece for which there is no precedent in history."

Dakas CJ Dakas is a Senior Lecturer at the Faculty of Law, University of Jos.

Cont'd from last week