1.  Sovereignty and International Legal Personality*

In the case of the Land and Maritime Boundary between Cameroon and Nigeria, a hitherto unknown international entity was brought on to the international stage in order to support the territorial claims of Nigeria. The areas in dispute between the parties had been the subject of a number of international boundary agreements between Britain, France and Germany, and the issues as presented by Cameroon involved the interpretation and application of those agreements. Nigeria however sought to go behind these international instruments, and to base its claims on an interpretation of the legal significance of the events by which Great Britain had—or, as Nigeria claimed, had not—obtained title in colonial times. The area in question was the Peninsula of Bakassi, sovereignty over which would also be relevant for purposes of maritime delimitation off the coasts of the Parties.

Nigeria’s contention was that ‘title to sovereignty over Bakassi…was originally vested in the Kings and Chiefs of Old Calabar.’ These romantically named persons were party to a Treaty of Protection signed with Great Britain on 10 September 1884; and Nigeria argued that at the time they constituted an ‘acephalous federation’ consisting of ‘independent entities with international legal personality’.⁶ On this basis, Nigeria’s contention was that the Kings and Chiefs of Old Calabar ‘retained their separate international status and rights’ notwithstanding the conclusion of the Treaty, that Treaty having ‘only conferred certain limited rights on Great Britain’; for Nigeria, ‘in no way did it transfer sovereignty to Britain over the territories of the Kings and Chiefs of Old Calabar.’⁷ The necessary consequence of this was that, on the principle nemo dat quod non habet, Great Britain could not cede any part of the territories to a third party. Cameroon’s claim was based on an Anglo-German Agreement of 1913 defining the course of the boundary between British and German colonial territories in the area; that Agreement had placed the Bakassi Peninsula on the German side of the boundary, and thus constituted a cession of the territory to Germany. If the Nigerian analysis of the position in 1884 was correct, the 1913 Agreement was pro tanto ineffective, since Great Britain had no title to transfer.

One of the difficulties of the Nigerian analysis is that if the Kings and Chiefs of Old Calabar constituted some sort of entity having international personality in 1884, and (p. 1432) did not part with their territory by entering into the Treaty of that year, they would have had to continue to exist as an international entity after that date, and to have disappeared as such some time between that time and the modern era. This point was the subject of a question to Nigerian counsel by a Member of the Court, and produced the reply that ‘[i]t is not possible to say with clarity and certainty what happened to the international legal personality of the Kings and Chiefs of Old Calabar after 1885’;⁸ and the question when they ceased to exist as a separate entity ‘is not a question susceptible of a clear-cut answer’.⁹ This in itself was something of a death-blow to the theory of their international personality; but in addition the Court was able to show that this theory was not in accord with international law as it was understood at the time of the 1884 Treaty. Citing the Island of Palmas case,¹⁰ the Court recalled that many treaties of this kind amounted to ‘a form of organisation of a colonial territory on the basis of autonomy of the natives’, and that ‘suzerainty over the native States becomes the basis of territorial sovereignty as towards other members of the community of nations.’¹¹ This did not mean that the territory would previously have been terra nullius; as the Court had pointed out in the Western Sahara advisory opinion, where such a territory was inhabited by tribes or people having a social and political organization, ‘agreements concluded with local rulers…were regarded as derivative roots of title.’¹²

The use of the term ‘protectorate’ in this context was of course frequently something of a polite euphemism of the period. As the Court observed, some so-called ‘Treaties of Protection’ did involve protection of one legal person by another, being ‘entered into with entities which retained thereunder a previously existing sovereignty under international law.’¹³ In many cases, however, and in sub-Saharan Africa in particular, ‘treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory’,¹⁴ and ‘the choice of a protectorate treaty…was a question of the preferred manner of rule’ by the colonial Power.¹⁵

Who was it then who decided whether there was a local ruler or political entity qualifying to be regarded as an international personality, to be treated with as, to that extent, an equal, and regarded as continuing to posses international personality after, and notwithstanding, protection; or whether there were simply indigenous local rulers to be left in situ, but to be disregarded for purposes of the foreign relations, and effective ultimate control, of the territory? The choice inevitably belonged to the protecting, or colonising, power: in the nineteenth and early twentieth century, the family of nations was in essence an exclusive club, admission to which was by general consent of the existing members. One observation in the Cameroon/Nigeria judgment however suggests recognition that the way in which the local power regarded itself was not wholly irrelevant. One of the factors that the Court considered as pointing to the interpretation of the 1884 Treaty as not establishing an international protectorate was that the Treaty ‘was one of a multitude in a region where the local Rulers were not regarded as States’, (p. 1433) regarded, that is to say, by themselves and their fellow-chiefs, since the Court continues by noting the attitude of the individual Chiefs themselves, that their position did not evidence any ‘central federal power’, but that they each owed ‘a general allegiance to more important Kings and Chiefs’.¹⁶

More recently, the Court has been faced with the situation in which to determine whether a given entity was or was not a State would prejudice the whole subject of the proceedings. On 8 October 2008, the UN General Assembly decided to ask the Court for an advisory opinion on the question: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ By an Order of 17 October 2008, the Court decided, inter alia, that the United Nations and its Member States were ‘likely to be able to furnish information’ under Article 66, paragraph 2, of the Statute, which refers to any ‘State entitled to appear before the Court’. It went on to decide also, however, that, ‘taking account of the fact that the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo of 17 February 2008 is the subject of the question submitted to (p. 1434) the Court for an advisory opinion, the authors of the above declaration are considered likely to be able to furnish information on the question;…’ This is of course again a bold, but entirely justifiable, interpretation of the terms of the Statute; and while the Court’s eventual conclusion leaves open the question whether an independent State of Kosovo has come into existence, the earlier decision cannot, it is suggested, be faulted as a matter of the constitutional or procedural law of the Court.²⁰

The situation may also arise that the existence of a State as an international legal person may be recognized, but the entitlement of those claiming to act on its behalf, or to speak for it, may be challenged. When, in the confused circumstances of the break-up of the former Yugoslavia, Bosnia and Herzegovina brought proceedings before the Court against the Federal Republic of Yugoslavia (Serbia), the FRY objected that neither the Head of State of Bosnia, who had authorized the proceedings, nor his Government, were ‘legally elected’, and that his mandate as Head of State had expired.²¹ The Court noted that the person in question had been ‘recognized by the United Nations as the legitimate Head of State’, and that ‘the power of a Head of State to act on behalf of the State in its international relations is universally recognized, and reflected in, for example, Article 7, paragraph 2 (a), of the Vienna Convention on the Law of Treaties’, and accordingly accepted the seisin ‘as the act of that State’.²²

2.  Territorial and Political Sovereignty*

In the previous article on this subject²³ the question of violation of territorial sovereignty was discussed in connection with simultaneous claims of the unlawful use of force, and the question was raised whether the use of force is ‘a special and more aggravated form of violation of sovereignty’, so that it would have been unnecessary in the Diplomatic and Consular Staff in Tehran case to condemn the same acts under both heads. In the case of Armed Activities on the Territory of the Congo, the Democratic Republic of the Congo (DRC) claimed that Uganda, by military and paramilitary activities on DRC territory, and by illegally exploiting its natural resources, had, inter alia, violated the principle of ‘respect for the sovereignty of States’.²⁴ The Court found, in the reasoning of its Judgment, that Uganda had ‘violated the sovereignty and the territorial integrity of the DRC’;²⁵ but in this respect the operative clause of the Judgment referred only to Uganda having ‘violated the principle of non-use of force in international relations and the principle of non-intervention’;²⁶ no separate finding of violation of sovereignty was apparently regarded as appropriate.

In its advisory opinion in the case of Construction of a Wall in the Occupied Palestinian Territory, and in the case of Armed Activities on the Territory of the Congo, the Court had (p. 1435) to take account of the Fourth Hague Convention of 1907 and the regulations annexed thereto,²⁷ concerning belligerent occupation. In the first of these cases, the Court noted that Israel was not a party to the Convention, so that the question arose of the possible customary-law status of its provisions, and of the annexed Regulations.

The Court had already noted, in the case concerning the Legality of the Threat or Use of Nuclear Weapons, the existence of ‘a large number of customary rules…developed by the practice of States’, relevant to the matters before the Court, and in this connection had referred to ‘the efforts at codification’ of the ‘laws and customs of war’ undertaken in The Hague, ‘including the Conventions of 1899 and 1907’. It had concluded that ‘the conduct of military operations is governed by a body of legal prescriptions’ which, it implied, were of a general customary-law character; but the question of occupation was not one relevant to the issues then before the Court.²⁸

In the Palestine Wall case, the Court referred to the findings of the International Military tribunal of Nuremberg, and to its own findings in the Nuclear Weapons case to conclude that ‘the provisions of the Hague Regulations have become part of customary law’.²⁹ In the light of this finding, the Court was able to refer, in the Armed Activities case, to ‘customary international law, as reflected in Article 42 of the Hague Regulations of 1907’, as authority for the propositions that ‘territory is considered to be occupied when it is actually placed under the authority of the hostile army,’ and ‘the occupation extends only to the territory where such authority has been established and can be exercised.’³⁰

The Court rejected the Israeli interpretation, for reasons to be examined later in the present series of articles, thereby apparently recognizing that there may be lawful belligerent occupation of the territory of a State which is not itself one of the States between which hostilities are being carried on. The Court indicated that the sole condition of application of the Fourth Geneva Convention was the existence of a state of hostilities between two contracting Parties, and that thereupon ‘the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties’.³²

(p. 1436) When dealing with the requests for provisional measures made both by Bosnia and Herzegovina and by the FRY (Serbia) in the case concerning Application of the Genocide Convention, the Court rejected the argument that the possibility of ‘partition or dismemberment, annexation or incorporation of the sovereign territory of Bosnia and Herzegovina’ could be prima facie a breach of the Convention, on the basis that the essential characteristic of genocide is ‘the intended destruction of “a national, ethnical, racial or religious group”, and not the disappearance of a State as a subject of international law or a change in its constitution or territory.’³³