In accordance with Article 40, paragraph 2, of the Statute of the Court, the Application was communicated to the Government of the United Kingdom. In accordance with paragraph 3 of the same Article, the other Members of the United Nations and the nonmember States entitled to appear before the Court were notified.
Time-limits for the filing of the Memorial and the CounterMemorial were fixed by an Order of 6 July 1961 and subsequently extended at the request of the Parties by Orders of 2 November 1961, 25 April and 10 July 1962. The Memorial and CounterMemorial were filed within the time-limits so extended. In the Counter-Memorial, filed on 14 August 1962, the Government of the United Kingdom not only referred to the merits of the case but also raised preliminary objections under Article 62 of the Rules of Court. Accordingly, an Order of 3 September 1962 recorded that by virtue of the provisions of Article 62, paragraph 3, of the Rules of Court, the proceedings on the merits were suspended and fixed 1 December 1962 as the time-limit within which the Government of Cameroon might present a written statement of its observations and submissions on the preliminary objections. At the request of the Government of Cameroon this time-limit was extended to 1 March 1963 by an Order of 27 November 1962 and further extended to 1 July 1963 by an Order of 11 January 1963.
Pursuant to Article 31, paragraph 2, of the Statute, the Government of Cameroon chose M. Philémon Beb a Don, Ambassador of Cameroon to France, to sit as Judge ad hoc in the present case.
On 19-23, 25-27, 30 September and x and 3 October 1963, hearings were held in the course of which the Court heard the oral arguments and replies of Sir Francis Vallat, Agent, and Sir John Hobson, Counsel, on behalf of the Government of the United Kingdom ; and of M. Vincent de Paul Ahanda, Agent, Mr. Paul Engo, Assistant Agent, and M. Prosper Weil, Counsel, on behalf of the Government of Cameroon.
In the written proceedings, the following Submissions were presented by the Parties :
On behalf of the Government of Cameroon, in the Application :
"May it please the Court:
to notify the present Application, in accordance with Article 40, paragraph 2, of the Statute of the Court to the Government of the United Kingdom;
to adjudge and declare, whether the Government of the United Kingdom appears or not, and after such time-limits as the Court may fix: that the United Kingdom has, in the application of the Trusteeship Agreement of 13 December 1946, failed to respect certain obligations directly or indirectly flowing therefrom on the various points set out above";
in the Memorial:
"The submissions of the Federal Republic of Cameroon are as follows: may it please the Court to find in favour of the submissions of its Application instituting proceedings and, in particular, to adjudge and declare:
that the United Kingdom has, in the application of the Trusteeship Agreement of 13 December 1946, failed to respect certain obligations directly or indirectly flowing therefrom on the various points set out above."
On behalf of the Government of the United Kingdom, in the Counter-Memorial :
"112. The British Government submit that the Court should hold and declare :
(ii) that, if, contrary to the submission of the British Government, the Court holds that it has jurisdiction, for the reasons stated in Parts II and III of this Counter-Memorial, the allegations made by the Republic of Cameroon of breach of the obligations of the United Kingdom under the Trusteeship Agreement are without foundation."
On behalf of the Government of Cameroon,
in the Observations and Submissions on the preliminary objection:
"On the basis of the foregoing observations, and reserving all its rights with regard to the merits of the case, the Federal Republic of Cameroon has the honour to lay the following submissions before the Court:
May it please the Court :
1. To dismiss the preliminary objection of the United Kingdom to the effect that the Court should declare that it has no jurisdiction;
2. To dismiss the preliminary objection of the United Kingdom based on failure to observe the provisions of Article 32, paragraph 2, of the Rules of Court;
3. To adjudge and declare that the United Kingdom has, in the interpretation and application of the Trusteeship Agreement for the Territory of the Cameroons under British Administration, failed to respect certain obligations directly or indirectly flowing from the said Agreement, and in particular from Articles 3, 5, 6 and 7 thereof."
In the oral proceedings the following Submissions were presented by the Parties:
On behalf of the Government of the United Kingdom,
at the hearing on 23 September 1963 :
"For the reasons which I have presented to the Court, I now submit that it should hold and declare that the Court has no jurisdiction in this case, and I sustain the first conclusion in paragraph 112 of the United Kingdom Counter-Memorial."
On behalf of the Government of Cameroon, after the hearing on 27 September 1963 :
"May it please the Court:
1. To dismiss the preliminary objection of the United Kingdom to the effect that the Court should declare that it has no jurisdiction ;
2. To dismiss the preliminary objection of the United Kingdom based on failure to observe the provisions of Article 32, paragraph 2, of the Rules of Court ;
3. To adjudge and declare that the United Kingdom has, in the interpretation and application of the Trusteeship Agreement for
On behalf of the Government of the United Kingdom,
at the hearing on 1 October 1963:
"For the reasons given in the Counter-Memorial and the oral statements presented on behalf of the United Kingdom during the present hearing, the United Kingdom makes the following submissions :
(1) that there has not at any time been a dispute as alleged in the Application in this case ;
(2) that there has not been or was not on 30 May 1961, as alleged in the Application, a dispute falling within Article 19 of the Trusteeship Agreement for the Territory of the Cameroons under United Kingdom Administration ;
(3) that, in any event, there is no dispute before the Court upon which the Court is entitled to adjudicate.
May it, therefore, please the Court:
Having regard to each and all of the above submissions, to uphold the preliminary objections of the United Kingdom and to declare that the Court is without jurisdiction in the present case and that the Court will not proceed to examine the merits."
On behalf of the Government of Cameroon,
at the hearing on 3 October 1963 :
"For the reasons given in its pleadings and oral statements, the Federal Republic of Cameroon has the honour to make the following submissions :
May it please the Court :
1. To dismiss the preliminary objections of the United Kingdom to the effect that the Court should declare that it has no jurisdiction ;
2. To declare that it has jurisdiction to examine the merits of the claim of the Federal Republic of Cameroon to the effect that the Court should adjudge and declare that the United Kingdom has, in the interpretation and application of the Trusteeship Agreement for the Territory of the Cameroons under British Administration, failed to respect certain obligations directly or indirectly flowing from the said Agreement, and in particular from Articles 3, 5, 6 and 7 thereof."
The President having asked the Agent of the Government of the United Kingdom whether he had any observations to make on the submissions thus presented by the Government of Cameroon, the Agent stated that he had no comment to make in so far as the submissions related to the question of jurisdiction and the preliminary objections of the United Kingdom.
The historical background of the Application filed by the Republic of Cameroon on 30 May 1961 relates to one of the several important political developments affecting certain territories in the continent of Africa which have taken place in recent years. The territory here in question, known as the Northern Cameroons, formed part of the "oversea possessions" the rights and titles to which Germany renounced under Article 119 of the Treaty of Versailles of 28 June 1919, and which were placed under the Mandates System of the League of Nations. In conformity with a decision of the Council of Four at the Peace Conference, the Governments of France and Great Britain recommended that the territory which had been known as the German protectorate of Kamerun should be divided into two Mandates, the one to be administered by France and the other by Great Britain. This recommendation was accepted and the Mandates were established.
After the creation of the United Nations, the French and British Governments proposed to place these mandated territories under the International Trusteeship System. Trusteeship Agreements for the Territory of the Cameroons under British Administration and for the Territory of the Cameroons under French Administration with the approval of the General Assembly of the United Nations entered into force on 13 December 1946.
The Government of the United Kingdom as the Administering Authority maintained in the Trust Territory of the Cameroons the same administrative arrangements which it had first instituted when the Mandate was accepted. Under these arrangements the territory was divided into a northern region and a southern region. The Northern Cameroons was itself not a geographical whole but was in two sections, separated by a narrow strip of the territory of what was then the British Protectorate of Nigeria which bordered the entire western side of the Mandate. The Northern Cameroons was administered as part of the two northern provinces of Nigeria, Bornu and Adamawa. The Southern Cameroons was administered until 1939 as a separate Cameroons Province of Southern Nigeria. Thereafter, the Southern Cameroons was joined for administrative purposes to the eastern provinces of Nigeria as a separate province.
The Trust Territory of the Cameroons under French Administration, which formed the entire eastern and most of the northern frontier of the Trust Territory of the Cameroons under British
Meanwhile, also consequent upon a plebiscite conducted under the auspices of the United Nations on 11 and 12 February 1961, the Northern Cameroons on 1 June 1961 joined the Federation of Nigeria which had become independent on 1 October 1960 and which was admitted as a Member of the United Nations six days later. The Northern Cameroons became and remains a separate province of the Northern Region of Nigeria.
The situation of the Trust Territories of the Cameroons under French Administration and of the Cameroons under British Administration received much attention from the Trusteeship Council of the United Nations and from the General Assembly itself. Indeed, the General Assembly on 5 December 1958 decided to resume its thirteenth session in February 1959 "to consider exclusively the question of the future of the Trust Territories of the Cameroons under French Administration and the Cameroons under United Kingdom Administration". In addition, the whole question of administrative unions in trust territories was over many years the subject of repeated study within the United Nations.
The reports of visiting missions to the two Trust Territories of the Cameroons under French and British administration respectively, the proceedings of the Trusteeship Council and of the Fourth Committee of the General Assembly as well as the reports of the United Nations Plebiscite Commissioner who supervised plebiscites held in the Trust Territory of the Cameroons under British Administration, afford abundant background for the questions raised by the Republic of Cameroon in its Application of 30 May 1961 instituting proceedings against the United Kingdom. Since proceedings on the merits were suspended as recorded in the Order of 3 September 1962, the Court, as already noted, refers to this body of material only for the purpose of indicating the setting in which it has been called upon to consider the Application and Memorial of the Republic of Cameroon and the Preliminary Objections thereto which have been filed by the United Kingdom. It is necessary, however, by way of clarification of what follows, to refer specifically to three of the resolutions adopted by the General Assembly of the United Nations.
On 13 March 1959, the General Assembly adopted resolution 1350 (XIII). It recommended that the Administering Authority, in consultation with a United Nations Plebiscite Commissioner, organize under the supervision of the United Nations separate plebiscites in the northern and southern parts of the Cameroons under British administration "in order to ascertain the wishes of
The plebiscite was held on 11 and 12 February 1961, and on 21 April 1961 the General Assembly adopted resolution 1608 (XV) which has special significance in this case. The resolution includes the following three paragraphs :
"2. Endorses the results of the plebiscites that:
(a) The people of the Northern Cameroons have, by a substantial majority, decided to achieve independence by joining the independent Federation of Nigeria;
(b) The people of the Southern Cameroons have similarly decided to achieve independence by joining the independent Republic of Cameroun;
3. Considers that, the people of the two parts of the Trust Territory having freely and secretly expressed their wishes with regard to their respective futures in accordance with General Assembly resolutions 1352 (XIV) and 1473 (XIV), the decisions made by them through democratic processes under the supervision of the United Nations should be immediately implemented;
4. Decides that, the plebiscites having been taken separately with differing results, the Trusteeship Agreement of 13 December 1946 concerning the Cameroons under United Kingdom administration shall be terminated, in accordance with Article 76 b of the Charter of the United Nations and in agreement with the Administering Authority, in the following manner :
(a) With respect to the Northern Cameroons, on 1 June 1961, upon its joining the Federation of Nigeria as a separate province of the Northern Region of Nigeria;
The Republic of Cameroon voted against the adoption of this resolution.
Although in a Memorandum of i May 1961 from the Republic of Cameroon Ministry of Foreign Affairs transmitted to the United Kingdom (which hereafter will more particularly be referred to) the position was taken that the Trusteeship could not be terminated without the consent of the Republic of Cameroon "in its capacity as a State directly concerned", the Applicant did not maintain this position and the fact that the Trusteeship Agreement was terminated by the General Assembly’s resolution 1608 (XV), is now admitted by both Parties.
Even before the discussions which led up to resolution 1608 (XV), the Republic of Cameroon expressed its dissatisfaction with the manner in which the separation of the administration of the Northern Cameroons from that of Nigeria was being implemented by the United Kingdom. As early as May 1960, before the Republic of Cameroon became a Member of the United Nations, its point of view was expounded on its behalf by the representative of France in the Trusteeship Council. After its admission to membership of the United Nations, by a communiqué attached to a note verbale of 4 January 1961 to the United Kingdom, the Republic of Cameroon asserted on its own behalf that this administrative separation had not been made effective and that the United Kingdom as Administering Authority had not conducted the peoples of the Northern Cameroons to self-government as provided in Article 76 (b) of the Charter of the United Nations. Thereafter, and after the plebiscite of February 1961, representatives of the Republic of Cameroon through numerous interventions in the Fourth Committee of the General Assembly and in the plenary sessions of the Assembly, made known its objections to certain alleged practices, acts or omissions on the part of the local trusteeship authorities during the period preceding the plebiscite and during the course of the plebiscite itself which it claimed altered the normal course of the consultation with the people and involved consequences in conflict with the Trusteeship Agreement. Throughout, the Republic of Cameroon emphasized its view that the "rule of unity" had been disregarded by the Administering Authority and thereby the political development of the Trust Territory had been altered.
These objections, together with the allegations by the Republic of Cameroon that the Administrative separation recommended in General Assembly resolution 1473 (XIV) had not been effected, and the complaint that the whole Trust Territory had not been administered as a single administrative unit, were developed in a Cameroon White Book distributed by it to all Members of the United Nations in March 1961 when the results of the second
Following the adoption of the General Assembly’s resolution 1608 (XV), the Republic of Cameroon, on 1 May 1961, addressed a communication to the United Kingdom in which it referred to complaints "of a legal character" which had been advanced by it and which it wished to have considered by this Court. The complaints are listed in its communication and they correspond with those which in the Application are stated to be the matters relating to the execution of the Trusteeship Agreement on the part of the Administering Authority and constituting the subject of the dispute between the Republic of Cameroon and the United Kingdom. Its communication referred to a dispute concerning the application of the Trusteeship Agreement and requested the United Kingdom to enter into a special agreement for the purpose of bringing the same before this Court. No reference was made in the communication of the Republic of Cameroon to Article 19 of the Trusteeship Agreement which hereafter will be referred to.
To this communication the United Kingdom replied on 26 May 1961 stating that the dispute did not appear to be between it and the Republic of Cameroon but between the latter and the United Nations General Assembly. The policies or practices with which the Republic of Cameroon found fault, the reply goes on to state, had been endorsed by the United Nations and the United Kingdom did not deem it proper to submit to the International Court a dispute concerning these. To refer the matter to this Court, the letter proceeded to say, would call in question the decision of the General Assembly as set out in its resolution 1608 (XV) and introduce an element of uncertainty into a matter decided by the Assembly. For these stated reasons the United Kingdom declared they were unable to comply with the request of the Republic of Cameroon to refer the matter to this Court.
Four days later, on 30 May 1961, the Republic of Cameroon submitted its Application to the Court, basing the jurisdiction of the Court on Article 19 of the Trusteeship Agreement which reads as follows :
"Article 19. If any dispute whatever should arise between the Administering Authority and another Member of the United Nations relating to the interpretation or application of the provisions of this Agreement, such dispute, if it cannot be settled by negotiation or other means, shall be submitted to the International Court of Justice, provided for in Chapter XIV of the United Nations Charter."
The Application lists the following complaints :
"(a) The Northern Cameroons have not, in spite of the text of Article 5, § B, of the Trusteeship Agreement, been administered as a separate territory within an administrative union, but as an integral part of Nigeria.
(b) Article 6 of the Trusteeship Agreement laid down as objectives the development of free political institutions, a progressively increasing share for the inhabitants of the Territory in the administrative services, their participation in advisory and legislative bodies and in the government of the Territory. These objectives, in the opinion of the Republic of Cameroon, have not been attained.
(c) The Trusteeship Agreement did not authorize the Administering Power to administer the Territory as two separate parts, contrary to the rule of unity, in accordance with two administrative systems and following separate courses of political development.
(d) The provisions of § 7 of Resolution 1473 relating to the separation of the administration of the Northern Cameroons from that of Nigeria have not been followed.
(e) The measures provided for in § 6 of the same Resolution in order to achieve further decentralization of governmental functions and the effective democratization of the system of local government have not been implemented.
(f) The conditions laid down by § 4 of the Resolution for the drawing up of electoral lists were interpreted in a discriminatory manner, by giving an improper interpretation to the qualification of ordinary residence.
(g) Practices, acts or omissions of the local Trusteeship authorities during the period preceding the plebiscite and during the elections themselves altered the normal course of the consultation and involved consequences in conflict with the Trusteeship Agreement."
The formulation of the grievances of the Republic of Cameroon is stated in differing language in the Application, its Memorial, its Written Observations and Submissions and its Final Submissions. It suffices at this point, and in the light of what has already been said, to quote from the Final Submissions the prayer—
"that the Court should adjudge and declare that the United Kingdom has, in the interpretation and application of the Trusteeship Agreement for the Territory of the Cameroons under British Administration, failed to respect certain obligations directly or indirectly flowing from the said Agreement, and in particular from Articles 3, 5, 6 and 7 thereof".
"outside the sphere in which a Court of Justice, concerned with the application of rules of law, can help in the solution of disputes between two States".
The Court may, of course, give advisory opinions—not at the request of a State but at the request of a duly authorized organ or agency of the United Nations. But both the Permanent Court of International Justice and this Court have emphasized the fact that the Court’s authority to give advisory opinions must be exercised as a judicial function. Both Courts have had occasion to make pronouncements concerning requests for advisory opinions, which are equally applicable to the proper role of the Court in disposing of contested cases; in both situations, the Court is exercising a judicial function. That function is circumscribed by inherent limitations which are none the less imperative because they may be difficult to catalogue, and may not frequently present themselves as a conclusive bar to adjudication in a concrete case. Nevertheless, it is always a matter for the determination of the Court whether its judicial functions are involved. This Court, like the Permanent Court of International Justice, has always been guided by the principle which the latter stated in the case concerning the Status of Eastern Carelia on 23 July 1923 :
"The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court." (P.C.I.J., Series B, No. 5, p. 29.)
In the Haya de la Torre case (I.C.J. Reports 1951, pp. 78-79), the Court noted that both parties sought from the Court a decision "as to the manner in which the asylum should be terminated". It ordered that the asylum should terminate but refused to indicate means to be employed to give effect to its order. The Court said:
"The interrogative form in which they have formulated their Submissions shows that they desire that the Court should make a choice amongst the various courses by which the asylum may be terminated. But these courses are conditioned by facts and by possibilities which, to a very large extent, the Parties are alone in a position to appreciate. A choice amongst them could not be based on legal considerations, but only on considerations of practicability or of political expediency; it is not part of the Court’s judicial function to make such a choice."
The injustice alleged seems clearly enough to have been "the attachment of the northern part of the Cameroons to a State other than the Republic of Cameroon".
But the Court is not asked to redress the alleged injustice; it is not asked to detach territory from Nigeria; it is not asked to restore to the Republic of Cameroon peoples or territories claimed to have been lost ; it is not asked to award reparation of any kind.
It was not to this Court but to the General Assembly of the United Nations that the Republic of Cameroon directed the argument and the plea for a declaration that the plebiscite was null and void. In paragraphs numbered 2 and 3 of resolution 1608 (XV), the General Assembly rejected the Cameroon plea. Whatever the motivation of the General Assembly in reaching the conclusions contained in those paragraphs, whether or not it was acting wholly on the political plane and without the Court finding it necessary to consider here whether or not the General Assembly based its action on a correct interpretation of the Trusteeship Agreement, there is no doubt—and indeed no controversy—that the resolution had definitive legal effect. The plebiscite was not declared null and void but, on the contrary, its results were endorsed and the General Assembly decided that the Trusteeship Agreement should be terminated with respect to the Northern Cameroons on 1 June 1961. In the event, the termination of the Trusteeship Agreement was a legal effect of the conclusions in paragraphs 2 and 3 of resolution 1608 (XV). The Applicant here has expressly said it does not ask the Court to revise or to reverse those conclusions of the General Assembly or those decisions as such, and it is not therefore necessary to consider whether the Court could exercise such an authority. But the Applicant does ask the Court to appreciate certain facts and to reach conclusions on those facts at variance with the conclusions stated by the General Assembly in resolution 1608 (XV).
If the Court were to decide that it can deal with the case on the merits, and if thereafter, following argument on the merits, the Court decided, inter alia, that the establishment and the maintenance of the administrative union between the Northern Cameroons and Nigeria was a violation of the Trusteeship Agreement, it would still remain true that the General Assembly, acting within its acknowledged competence, was not persuaded that either the administrative union, or other alleged factors, invalidated the plebiscite as a free expression of the will of the people. Since the Court has not, in the Applicant’s submissions, been asked to review that conclusion of the General Assembly, a decision by the Court, for example that the Administering Authority had violated the
The Court cannot agree that under these circumstances the judicial protection claimed by the Applicant to have existed under the Trusteeship System, would have alone survived when all of the concomitant elements to which it was related had disappeared. Accordingly, the Republic of Cameroon would not have had a right after 1 June 1961, when the Trusteeship Agreement was terminated and the Trust itself came to an end, to ask the Court to adjudicate at this stage upon questions affecting the rights of the inhabitants of the former Trust Territory and the general interest in the successful functioning of the Trusteeship System.
Throughout these proceedings the contention of the Republic of Cameroon has been that all it seeks is a declaratory judgment of the Court that prior to the termination of the Trusteeship Agreement with respect to the Northern Cameroons, the United Kingdom had breached the provisions of the Agreement, and that, if its Application were admissible and the Court had jurisdiction to proceed to the merits, such a declaratory judgment is not only one the Court could make but one that it should make.
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