"Role of Court in judicial settlement of territorial and boundary disputes — Nigeria's claim to Bakassi based on original title and historical consolidation and to settlements around Lake Chad based on historical consolidation — 1884 Treaty of Protection between Great Britain and Kings and Chiefs of Old Calabar — Legal basis for solving dispute — Invalidity of Anglo-German Agreement of II March 1913 — Failure of Court to properly assess evidence establishing historical consolidation — Historical consolidation provides valid basis for territorial title.
2. But this notwithstanding, with reference to the Court's role as an arm of preventive diplomacy, i.e., being seised of disputes which seem entirely political but which have a legal component, the President of the Court told the United Nations General Assembly in 1991 that the Court's mission was to declare and apply the law, and that it would range outside that task at its peril and at the peril of international law (see Sir Robert Jennings, "The Role of the International Court of Justice", British Year Book of International Law (BYBIL), 1997, p. 3). Therefore, even in performing this role the Court is bound, pursuant to its Statute, to apply relevant treaties and conventions as well as general principles of law recognized by the Parties (Statute of the Court, Art. 38). Hence, the Court cannot allow itself to abdicate this judicial responsibility.
3. I am, however, obliged to observe that the conclusion reached by the Court with respect to the 1884 Treaty between Great Britain and the Kings and Chiefs of Old Calabar regarding the Bakassi Peninsula is tantamount to a recognition of political reality rather than to an application of the treaty and the relevant legal principles. In my view, it is not the function of the Court to recognize or consecrate political reality but rather to apply the law in ruling on disputes before it. Nor can I concur with the Court's response to the claim of "historical consolidation" by Nigeria in this case, the implication being that conventional title based on the 1913 Anglo-German Agreement is the only valid means of acquiring title or that the mode of territorial acquisition is closed. If the latter were the case, there would have been no place in the Court's jurisprudence for prescriptive title, etc. In my view, the approaches taken by the Court to reach its conclusions on these two issues are both fundamentally flawed.The main purpose of applying the law is to do justice and where the law is not correctly applied it could lead to an injustice. It is principally because of my disagreement with the conclusions and findings of the Court regarding these two issues that 1 have decided to exercise the faculty to enter this dissenting opinion as provided for by the Statute.
20. Another aspect of the Judgment which has given me much cause for legal concern is the Court's refusal to assess Nigeria's evidence relating to historical consolidation, which was one of the main grounds of it's claim to territorial title to Bakassi and with respect to some villages which had grown up around Lake Chad, and the Court's treatment with regard to the concept itself. Nigeria claimed that historical consolidation, which is founded upon proven long use, coupled with a complex of interests and relations which, in themselves, have the effect of attaching a territory, constitutes a legal basis of territorial title.