An alternate role for the International Court of Justice: applied to Cameroon v. Nigeria.

• Author: Irwin, Joe C.

1. INTRODUCTION

   On March 29, 1994, the Republic of Cameroon (hereinafter "Cameroon") instituted proceedings, via Application, before the International Court of Justice (hereinafter "ICJ"). These proceedings were initiated against the Federal Republic of Nigeria (hereinafter "Nigeria") in regard to a dispute described as relating essentially to the question of sovereignty over the Bakassi Peninsula.(1)

   Cameroon's Application alleged that Cameroon's title to the Bakassi Peninsula was contested by Nigeria; that since the end of 1993, this contestation had taken the form of an aggression by Nigeria which resulted in great prejudice to Cameroon, for which the ICJ was requested to order reparation.(2) Cameroon further alleged that the delimitation of the maritime boundary between the two States had remained a partial one and despite many attempts to complete it, the two parties had been unable to do so; and Cameroon requested the ICJ to determine the course of the maritime boundary between the two States beyond the line fixed in 1975.(3) At the close of the Application, Cameroon reserved the right to complement, amend, or modify the present Application and to submit to the Court a request for the indication of provisional measures should they prove to be necessary.(4)

   On June 6, 1994, Cameroon exercised the above right and filed an Additional Application for the purpose of extending the subject of the dispute to a further dispute, described in that Additional Application as relating essentially to the question of sovereignty over a part of the territory of Cameroon in the area of Lake Chad.(5) The Additional Application alleged that Cameroon's title to that part of the territory was contested by Nigeria.(6) Cameroon also requested the ICJ 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.(7)

   No objections were raised by Nigeria in treating the Additional Application of Cameroon as an amendment to the initial Application, and the ICJ also indicated its acceptance of the amendment by its Order of June 16, 1994.(8) Nigeria, however, did raise preliminary objections to the jurisdiction of the ICJ over the issues raised in both Applications, and the admissibility of the claims of Cameroon.(9) In response to the objections raised by Nigeria the ICJ issued the Order of January 10, 1996, which suspended the proceedings on the merits until May 15, 1996, at which time Cameroon was to present a written response to Nigeria's objections.(10)

   Before Cameroon entered its response to Nigeria's objections, hostilities in the disputed territories increased, and Cameroon then initiated before the ICJ its Request for the Indication of Provisional Measures.(11) After oral statements, the ICJ issued the Order of March 15, 1996.(12)

2. INEFFECTIVENESS OF THE PRESENT ROLE OF THE ICJ

   The ICJ was created by the U.N. Charter in 1945 and was designed to be the principal judicial organ of the United Nations.(13) Most of the cases that have come before the ICJ have been decided by the entire Court.

   The ICJ has jurisdiction over two types of cases: contentious cases and cases seeking an advisory opinion.(14) While many of its decisions have been important, the ICJ has not lived up to the hopes of many of its early supporters; that hope being the ICJ, along with the United Nations, would evolve into an international government. To begin with, 90 cases in almost 50 years is not a heavy caseload (though the ICJ's docket has become more active recently).(15) Moreover, many of the cases have not been of great international importance. In more than 20 contentious cases, the ICJ's jurisdiction or the admissibility of an application (i.e., the complaint) was challenged, with the ICJ dismissing almost half of these cases.(16) When the ICJ did reach a judgment on the merits, the affected parties have generally complied with it, but there have been exceptions, especially in recent years.(17)

   The reason for the ICJ's limited influence are varied. These include the limits on the ICJ's jurisdiction, its relatively rigid procedure, and the enforceability of its decrees. On enforceability of decrees, a U.N. member "undertakes to comply with the decision" of the ICJ if "it is a party" to the case, and the U.N. Security Council may "decide upon measures to be taken to give effect to the [ICJ's] judgment."(18)

   As noted, although states have complied with the ICJ's judgments in many of the cases, recalcitrant States have on occasion refused to comply. For example, the ICJ's first decision in a contentious case was against Albania for mining the Corfu Channel and damaging British warships.(19) Although the ICJ ruled in 1949 that Albania should pay monetary damages, Albania has yet to do so.(20) In 1980, Iran refused to comply with the ICJ's judgment to release the U.S. hostages.(21) Even the United States continued to support the Nicaraguan Contras in spite of the ICJ's 1986 decision saying that this support violated international law.(22) Furthermore, the U.N. Security Council, hampered in part by its veto-wielding members, has yet to take measures to enforce an ICJ judgment.

3. AN ALTERNATIVE ROLE FOR THE ICJ

   In light of the apparent ineffectiveness of the ICJ, it is suggested that by modifying the study of Fredrich Kratochwil,(23) and applying it to the role of the ICJ, the ICJ may expand its role and effectiveness in conflict resolution. Kratochwil asserts that one of the main functions of third-party intervention is to expedite conflict resolution through peaceful means.(24) In any contentious case brought before the ICJ, the ICJ is in fact a third party intervenor whose function is to expedite the resolution of the contentious case. The ICJ may effectively enhance this function through substantive methods, such as fact-finding or judgments, or through initiating such procedural methods as good offices and mediation.(25) By applying Kratochwil's study to the ICJ, the role of the ICJ may be: explicit, i.e., limiting its role to establishing communications between the parties or, at the other extreme, involving authoritative rule application (e.g., adjudication); or, implicit, i.e., using norms and rules to allow antagonistic parties to take a step back and view their disagreement more objectively.(26) The critical element remains the belief of the two disputants that the ICJ can help in the achievement of a settlement or resolution and that its role in both substance and procedure should be considered.(27)

   To expedite the contentious case to resolution through peaceful means, the obvious goal of the ICJ's intervention should be to achieve an exchange of promises and commitments between the parties (either legally or informally framed), in writing, that particular actions will be taken to resolve the source of the dispute.(28) Kratochwil asserts that trust between the two disputants is crucial to the formulation of settlements; without the faith that the promises exchanged will be carried out, a peaceful effort to solve the problem will collapse.(29) Likewise, the ICJ, through the prestige of its office, must maintain trust between the disputants.

   The ICJ may achieve trust and agreements between the parties by reducing the incongruence of perceptions and/or principles.(30) Kratochwil asserts that incompatible perceptions can be resolved more easily if the parties share common principles to guide resolution; a difference in principles can be sidestepped if there exists a single perception of reality in which both parties can work to satisfy their interests.(31) By facilitating agreement on either principles or perceptions, the situation is reduced to one-step processes towards settlement. However, Kratochwil warns that when principles are so divergent that the process for resolution becomes an issue itself, interest bargaining usually prevails, which is neither good nor bad, but may take unwanted forms.(32) The ICJ, however, by dictating the legal process may ensure the resolution of incompatible principles.

   When the positions of the disputants in contentious cases are diametrically opposed, the ICJ must decrease the incongruence by enhancing the potential for change among the...