Thursday, August 14, 2008

International Law or Principles of Convenience--On the Transfer of Control of Bakassi to the Cameroons

Western international law theorists make of the notion that the world has moved beyond ethnos as an ordering principle of the constitution of nation states. Since the disastrous flirting with the concept in 19th and early 20th century Europe, the idea that for every ethnos there must be a state has given way to a pluralistic view of demos (embracing the inhabitants of a state with political rights) based on the privileging of values and characteristics of membership in a polity. Formal constructs like citizenship, political and social rights and the cultivation of common political and social values now substitute for ethnos markers like language, culture, customs, race, religion and the like. Law, in effect, has sought to substitute for culture, to create a space within which a particular group of people can claim common membership irrespective of substantial differences defined by those characteristics that define ethnic membership.

Large states now are fully vested in notions of demos-citizenship to overcome ethnos as a means of uniting large groups of ethnically diverse peoples into one commonality--at least for politico-legal purposes. India, the United States, and the People's Republic of China represent more of less currently successful variants of this model. The European Union's now generation long efforts at social engineering to create what Nietzsche a century ago called for--the creation of a European from out of the national- tribal chaos of the recent past. See Friedrich Nietzsche, Human All Too Human (Para 475). For an example of its use in the debates about the Europeanization of concepts of demos within the European Union, see, e.g., Simón Royo Hernández, Nietzsche And Unamuno On The Meaning Of The Earth, New Nietzsche Studies. Nietzsche's Ecology & Kant, Neokantianism, Nietzsche. Volume 5:1/2 Spring/Summer 2002, pp.42-56 ,Irina Bassina and Marcel Bas, The United Europe As An Antidote To A Democratic Nation-State In The Ideas Of F. Nietzsche, Published on Internet January 2002.

Except not always. Language, religion, race, and other strong markers of ethnicity continue to play a large role in the way in which states are constructed--not only in the "usual place" (Africa and Asia) but in the heart of Europe as well. The same forces that drove the Sudeten Germans of Czechoslovakia into union with Germany, drove the Kosovar Albanians out of the embrace of a greater Serbia.East Timor, Israel/Palestine, Tamil land in Sri Lanka, the tribalization of Europe in the form of autonomy/independence movements from Scotland to Catalonia all suggest the continuing power--within political theory and the constructing of an international framework for legal ordering, of the ethnic principle in state construction. Yet these constructs all evidence the hierarchy inherent in the framework of globally supervised governance which has been deepened since the Yugoslav wars of the 1990s. In the early 21th century it is not clear if this is international law or a set of international principles of convenience.

It was with this in mind that I read news of the transfer of the Bakassi to the Cameroons. Nigeria Cedes Bakassi to Cameroon, BBC News Online, Aug. 14, 2008. The transfer brought to an end a dispute of very long standing between the successors to the British and German empires--Nigeria and Cameroons, resolved in 2002 by a judgement of the International Court of Justice brought by Cameroons on 1998. See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), judgement October 10, 2002..

This has all the stuff of politics, law, culture and economics. The territory is inhabited mostly by ethnic" Nigerians, and it sits atop a vast amount of potential energy wealth. But the borders were never defined by reference to either characteristic, but by the desires of European princes in the 19th century. Those desires, it seems, have been inherited by the new rulers of the region.
The peninsula on the border between Nigeria and Cameroon has been disputed for decades. In the 1980s Nigeria and Cameroon nearly went to war over the area, which is rich in oil and gas. Cameroon asked the International Court of Justice in The Hague to decide who rightfully owned the peninsula, home to about 200,000 people. In 2002 the court ruled that it belonged to Cameroon, and the Nigerian government under former President Olusegun Obasanjo agreed to hand it over.
Bakassi Plans Stirs Nigeria Tension, BBC News Online, Aug. 13, 2008. ("About 90% of the population of the area is made up of Nigerian fishermen, estimated to number up to 300,000." Nigeria Cedes Bakassi to Cameroon, supra.).
The people of Bakassi are Efik and Ekoi in origin. They belong to the same ethnic groups considered as aborigines of Calabar metropolis, and they see their territory as an extension of the Obong of Calabar's sphere of influence. The chiefs who preside over the affairs of the different Bakassi communities not only visit their domains from Calabar, they sit in council with the Obong. Bakassi people believe they are traditional vassals of the Obong of Calabar.
Maxwell Oditta, Bakassi: Eclipse of a People's Heritage, Daily Independent.

Yet the most interesting aspect of this was the shadow of the old imperial order that hung over the whole affair. From start to finish, the decision was a European one--using European institutions, law, and the dead hand power of European imperial agreements. The Africans remained both passive, and passive-aggressive users of old colonial breadcrumbs and its institutions in new clothing. For at the end of the day, the issues in its legal, and political context were managed by the international community in a way in which the African states had little to say other than to stand in for the European powers in their now centuries old dispute. Overseen by the community of Nations in the form of the United Nations and the International Court of Justice, the resolution of this dispute evidences both the power of management as law in international relations, and on the depth of the dependency in which Africa still finds itself. Not that one can blame the Cameroons--the allure of wealth form natural resources is great--and there is no benefit to ignoring the possibilities offered by the current international law framework. To the extent that they could use the legal detritus of their former colonial masters to good effect, then why not? And for Nigeria, there is some silver lining--the cultivation of hatred against Cameroons among people whose own ethnic hatred might well have been turned against the Nigerian central government itself. When coupled with the agreement over wealth sharing, this works to the advantage of the Nigerian authorities as well.

In this context, consider that the "International Court of Justice ruling was based on an early 19th Century colonial agreement between Britain and Germany." Nigeria Cedes Bakassi to Cameroon, supra. The international community has been thrilled at the prospect of the transformation of a 19th century colonial arrangement into a 21st century methodology of international law. "The transfer of Bakassi had been described by UN Secretary General Ban Ki-Moon as "a model for negotiated settlements of border disputes"." Id. Yet, to the end, notions of state construction, the principle of population integrity and self-determination all seem to take a back seat. Thus, despite realities on the ground--and arguably in a strike for demos over ethnos--both Nigeria and Cameroons, then, behaved like "good" 19th century Europeans.
Nigeria and Cameroon had signed the "Green Tree Agreement" under which Abuja agreed to cede the peninsula to Yaounde in compliance with the verdict of the ICJ, which held that the territory belonged to Cameroon. Under the agreement signed in New York on June 12, 2006, in a U.S-facilitated mediation talks between the two countries, and in the presence of former United Nations' Secretary-General, Kofi Annan, Cameroon was to assume full sovereignty over the peninsula on August 14.
Maxwell Oditta, Bakassi: Eclipse of a People's Heritage, Daily Independent.
Everyone, including Americans, it seems, was happy with the idea that the people of a place can acquire a fungible sense of political belonging. Change a flag and the police force, and it might be possible to cultivate a new set of political allegiances in short order. Today Nigerians, tomorrow Cameroonians. Indeed, if those principles are trans-national, then it opens all sorts of possibilities for the peoples of Arizona (into Mexico), the Palestinians (into Israel), and the Gibraltans (into Spain). Citizenship is a learned experience that can be taught and untaught. The world can be remade in small increments. Just ask the Yugoslavs or the Eritreans.

Yet this seems a necessary consequence of the legalization of the contractual relations among states. The great emerging framework posits that contracts among states--conventions and treaties--now acquire a legal dimension as regulation rather than agreement. That regulatory dimension might be subject to vindication as law rather than as contract and disputes thereunder settled by judicial process. The consequence is a necessary formalism--grounded in the vindication of treaties without regard to their context and the changing legal orders which they purport to control. This legalism is meant to serve as a substitute for the violence that usually followed contractual disputes among states. All of this of course requires a transnational mechanism for the recognition of law and its implementation.

Yet it is not clear whether what we are witnessing is a transformation of contract into regulation, or or the constitutionalization of the law of treaties. Especially for smaller nations, this legalization of treaty "law"--not a law about treaties but as law through treaty--is hard to avoid. Thus, the Nigerians acknowledged the constraints of both the dead hand of colonialism and the current framework of international law. "'he gains made in adhering to the rule of law may outweigh the painful losses of ancestral homes," said the head of the Nigerian delegation, Attorney General Mike Aondoakaa.'" Nigeria Cedes Bakassi to Cameroon, supra.
It was Cameroon that dragged Nigeria to the World Court, averring that given the trend of international treaties entered with Nigerian authorities over a century, Bakassi Peninsula rightly belonged to them.Even though some of these treaties were colonial pacts, they are binding on the succeeding governments of Nigeria, they argued. The Cameroonians urged the court to determine the international land and maritime boundary with Nigeria, whether it is Rio del Rey, which would mean Bakassi belongs to Nigeria or Akpa Yafe, which places Bakassi within Cameroonian territory.
Bakassi: Eclipse of a People's Heritage, Daily Independent, supra. Africa remains nicely mired in the 19th century, and unable to rid itself of its effects by reason of the imperatives of 21st century international law as state management taking for its primal assumption the regulation of state (public) violence.

And the consequences will be very European as well, at a stroke both a blow for multi-ethnic states and the reality of mass population transfers that reduce the reality of demos over ethnos to hortatory desire. ("The Nigerian government told the people of Bakassi that if they wanted to be resettled in Nigeria, they could." Bakassi Plans Stirs Nigeria Tension, supra), and wealth sharing by elites in both states ("Its offshore waters are thought to contain substantial oil fields - untapped because of the border dispute - which Nigeria and Cameroon will now work together to explore." Nigeria Cedes Bakassi to Cameroon, supra.). And the resettlement will continue to cause problems for Nigeria ("The state created a place they called "New Bakassi", carved out of an existing local government area. But now thousands of people have come, expecting a cash handout for moving from their homes. And the original inhabitants of New Bakassi are bitter they are being displaced too." Bakassi Plans Stirs Nigeria Tension, supra)and Cameroons ("Militants, thought to be from the oil-rich Niger Delta, had attacked Cameroonian police in Bakassi, and the police retaliated. . . . Id.). "Chief Effiong of Obuntong sits drinking palm wine in a shack overlooking the land cleared by the contractors building the houses for the Bakassi displaced. . . . . As a traditional ruler, it was at his shrine that he could be consulted on spiritual matters. Angry, hurt and humiliated, he has dark warnings for the people who destroyed it, saying the spirits will avenge its removal. "I will commit suicide, but before I do, they will all die, even if they are a million of them."" Id. Thus the success of management--there will be violence, but contained and manageable. Just the sort of thing the international order desires--the conversion of public acts of political will to private acts of revenge.

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