Ambazonia v. La Republique du Cameroun: Interim Government Involvement in the Suing of Britain in the UK on the Southern Cameroons Issue by a Certain UK Based Mola.
Information reaching me is that a certain Mola has sued the UK in the High Court in London for the Southern Cameroons decolonization/trusteeship issue but he has no lawyer or resources to push the case and is doing Pro Se representation without a lawyer, whilst the British government came with over 5 Senior Lawyers hence showing the importance of the case.
The inherent risks in the case are multifaceted in nature.
1) For lack of legal representation, the Mola easily lose the case and set precedents in various issues that will work against Ambazonia in future cases;
2) It is a lost opportunity for the interim government to push the Ambazonia case in a British court if the fold their hands whilst a lone wolf is confusing issues in the UK court.
What Interim Government must Urgently do:
I understand the interim government has contacted the Mola but he is non-cooperative and would rather sell the case to the interim government for a high cost if they are interested, instead of working with them so that lawyers can be hired to deal with the case.
I understand the Interim government has decided to distance itself from the case due to this non-cooperative attitude of the Mola but this approach of the interim government is extremely naïve.
If the interim government had approached any lawyer worth his salt, they would have been advised the following:
1) Ignore the Mola completely, and apply for a Joinder of the Case in court, and become a formal Party to the case. The interim government has a legal personality either as a registered charity in the USA, or as an unincorporated body that can sue and be sued, and has enough interest in the case to warrant a joinder. It is simply to download a form for joinder and pay filing fees of about 50pounds hence not a difficult or expensive issue. Upon joinder, the interim government will become a formal Party to the case, will be served all documents on the case, and it can bring its lawyers to argue the case as it deems fit and will not depend on the Mola or its arguments.
2) A second approach is for the interim government to submit an Amicus Curia Brief to the court i.e. the interim government will claim to be a friend of the court (not a Mackenzie Friend who is a friend of one of the Parties), who has vital information that affects the case and the judge will accept the brief prepared by the interim government lawyers and read it but I do not recommend this approach.
It would be shirking responsibility and gross negligence if the interim government allows this case to be mishandled due to non-cooperation from the Mola when there are alternative legal methods to be fully engaged in the case. The interim government must act fast and act now to submit an Application for Joinder in the case.
On Sun, Aug 11, 2013 at 9:07 AM, I had written about suing Britain using the Nauru Technique and the mail is attached below for those who are interested to know how the issue can be addressed.
In the recent past, following the Mua Mua obtaining a right to sue in London, the issue of Southern Cameroons suing Britain for breach of the trusteeship agreement on Southern Cameroons was discussed and I highlighted various problems in such a venture. I said it was difficult but not impossible. During a 3 weeks holiday, I had some time on my hands and decided to have a bite at the issue again and this time look for a way to overcome the more serious problems highlighted. This submission is to close the issue in a more complete way for educative purposes.
The problems in suing Britain that I highlighted in the past included the following:
The problem of suing on a lapsed instrument i.e. the trusteeship agreement is extinguished together with all rights and obligations emanating therefrom (Northern Cameroons case at the ICJ). The problem of jurisdiction ratione temporis i.e. suing Britain some 40 years later when the statute of limitation for such contractual or tort cases in the UK domestic law is 6 years
The problem of jurisdiction ratione materiae i.e. suing Britain on violations that arose from normal diplomatic/foreign affairs duties when these are generally not justiciable in British Courts (Lord Roskill’s excluded category (the no go areas)).
I decided to concentrate on the first 2 problems since they appear to be more international in nature and leave the 3rd since it is rather a domestic problem for UK domestic courts that can be revisited later.
Southern Cameroon suing Britain on a lapsed instrument i.e. extinguished trusteeship agreement
I decided to approach this problem in a rather academic manner. I thought that epistemologically if I adopt an approach similar to a hypothetical-deductive logical positivism approach where I develop a hypothesis or null hypothesis a priori and then collect data to test and accept or reject it or see if there is case law to justify accepting the hypothesis or null hypothesis.
Whilst I accepted that when an instrument like a trusteeship agreement lapses, it goes with all the rights and obligations emanating from it, I had the feeling and developed the hypothesis that issues or problems that have already arisen might subsist and survive the extinction of the agreement if they had been raised before and a party reserves their rights expressly, or by implication, or it would be unconscionable to assume that by termination of the trusteeship agreement they have accepted a resolution of the problems already raised or waived their rights to a resolution.
In the Southern Cameroons case, if the UN for example orders the finalization of the terms of the union by say the administrative authority before the date of termination of the trusteeship agreement and Britain fails to do that and instead rushes to hand over the territory to La Republique du Cameroun then I hypothesize that it cannot be automatically assumed that the issue is extinguished together with the lapse of the trusteeship agreement since the problem existed before the termination, and continued after the termination as evidenced by the abortive Foumban Conference.
Whilst I was still pondering on the problem, I had a strange remembrance. In the days when I did my 3rd Masters degree (LLM Oil and Gas Law from Robert Gordon University in Aberdeen), in a course called the Environmental law, we discussed Certain Phosphate Lands where phosphate was mined in a trust territory by a company that Britain controlled and based in Australia. The territory was under the mandate and the mandatories were “His Britannic Majesty “as Sovereign of the United Kingdom, Australia, and New Zealand – Trusteeship granted to Australia, New Zealand and the United Kingdom jointly” designated as Administering Authority.
The name of the territory was NAURU. For those of my readers wondering where the hell this is, it is the territory that has sovereignty over Christmas Island that Australia is presently diverting refugees arriving via boat to after an agreement with the territory.Nauru complained about the mining of phosphate that was done before the termination of trusteeship and after termination of the trusteeship, continued to complain that the mining has destroyed the environment and that the environment needs to be made good but Britain and her associates claimed that now that the trusteeship has been terminated, they have no more responsibility for making good the environment and that it is now Nauru’s problem.
Nauru threatened arbitration, suing etc. I figured that if I can find the way the issue of termination of the trusteeship agreement had on any claim by Nauru, it will proof or disprove my hypothesis that some rights and obligations could survive the lapse of the trusteeship agreement on Southern Cameroons despite what the Bulgaria vs. Israel case, and the Northern Cameroons case say.
Perhaps as an International Arbitrator, my first instinct was to check various international arbitration tribunals and see if the phosphate case ended up there. After a rigorous search, I failed to find anything. I then remembered that Nauru actually had independence and unlike Southern Cameroons, they then had the standing to sue Britain in an international forum. I immediately combed the records of the Permanent Court of International Justice but to no avail. I then remembered that the Permanent Court was abolished about 1926 and Nauru had her independence much later so I should have been looking at the International Court of Justice (ICJ) instead.
I then rushed to the ICJ records and behold I found the case I was looking for: Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240. Strange enough, Nauru sued Australia alone without Britain or New Zealand but I thought the issue of the lapse of the trusteeship will still be in the issue so the situation is not fatal.
On behalf of the Government of Nauru, in its Memorial,:
Requests the Court to adjudge and declare that the Respondent State bears responsibility for breaches of the following legal obligations :
First: the obligations set forth in Article 76 of the United Nations Charter and Articles 3 and 5 of the Trusteeship Agreement for Nauru of 1 November 1947. This is the exact Southern Cameroons issue.
Second: the international standards generally recognized as applicable in the implementation of the principle of self-determination.
Third: the obligation to respect the right of the Nauruan people to permanent sovereignty over their natural wealth and resources.
Fourth: the obligation of general international law not to exercise powers of administration in such a way as to produce a denial of justice lato sensu.
Fifth: the obligation of general international law not to exercise powers of administration in such a way as to constitute an abuse of rights.
Sixth: the principle of general international law that a State which is responsible for the administration of territory is under an obligation not to bring about changes in the condition of the territory which will cause irreparable damage to, or substantially prejudice, the existing or contingent legal interest of another State in respect of that territory.
The above claims are generally applicable mutatis mutandi with the Southern Cameroons case. This might be the most important case vis-à-vis the Southern Cameroons vs. Britain litigation.
Preliminary Objections :
On behalf of the Government of Australia, various objections were advanced. I will deal with those applicable to Southern Cameroon.
Trusteeship Council Argument
Australia argues that any dispute which arose in the course of the Trusteeship between “the Administering Authority and the indigenous inhabitants” fell within the exclusive jurisdiction of the United Nations Trusteeship Council and General Assembly. Those organs, kept informed about Nauruan affairs by the Visiting Missions appointed by the Trusteeship Council, by petitions from the inhabitants, and by the reports of the Administering Authority, could make recommendations with respect to such disputes, not only to that Authority but also to the representatives of the Nauruan people; they could also prompt negotiations with a view to settlement of such disputes. Some Southern Cameroonians have advanced this argument that the ICJ has nothing to do with the Southern Cameroons issue and that it can only be resolved by the Trusteeship Council. I have rebutted these arguments in the past.
Lapse of Instrument or Termination of Trusteeship argument
But in any event, according to Australia, any dispute of that type should be regarded as having been settled by the very fact of the termination of the Trusteeship, provided that that termination was unconditional. Same problem faced by Southern Cameroons and the embodiment of my original hypothesis.
Australia maintains, moreover, that on 19 December 1967, the United Nations General Assembly terminated the Trusteeship without making any reservation relating to the administration of the Territory. Southern Cameroons trusteeship was also terminated without a reservation on the finalization of the terms of joining La Republique du Cameroun.
Australia maintains further that the Nauruan authorities also waived their claims to the rehabilitation of the lands during the debates at the United Nations that led, in the autumn of 1967, to the termination of the Trusteeship over Nauru and to its independence. Southern Cameroonians have to check what statements were made by our leaders prior to the termination of the trusteeship as to the finalization of the terms of joining post joining in Foumban
Australia’s third objection is that Nauru’s claim is “inadmissible on the ground that termination of the Trusteeship by the United Nations precludes allegations of breaches of the Trusteeship Agreement from now being examined by the Court”. Australia observes that “all the Nauruan allegations of breaches of obligations” relate to “the administration of the territory” placed under Trusteeship. Australia adds that “the competence to determine any alleged breach of the Trusteeship Agreement and Article 76 of the Charter rested exclusively with the Trusteeship Council and General Assembly”; that when the General Assembly terminates a trust, “the whole system of administrative supervision [comes] to an end”; and that
“in the absence of an express reservation recording a breach and an outstanding responsibility on the Administering Authority, termination is conclusive and operates as a complete discharge from all further responsibility”. This is the point I have been making on the Southern Cameroons case and looking for a way out of it without various comrades in the struggle understanding my difficulty.
According to Australia, Nauru, therefore, cannot now request the Court :
“to undertake the task of exploring again the performance of the Trusteeship in order to overrule and contradict the conclusions and decisions taken by the competent United Nations organs in the exercise of their functions of supervision of the trusteeship system”.
By resolution 2347 (XXII) of 19 December 1967, the General Assembly of the United Nations resolved “in agreement with the Administering Authority, that the Trusteeship Agreement for the Territory of Nauru . . . shall cease to be in force upon the accession of Nauru to independence on 3 1 January 1968”. The resolution had “definitive legal effect” (Northern Cameroons, Judgment, I.C.J. Reports 1963, p. 32). Consequently, the Trusteeship Agreement was “terminated” on that date and “is no longer in force”(ibid., p. 37). Australia based the above objection on the Northern Cameroons case that I had highlighted in the past as a great stumbling block to suing Britain and which I am now trying to look for a way around.
The ICJ actually acknowledged the above problem that I highlighted in the past although it tried to find a way around it when it said “In the light of these considerations, it might be possible to question the admissibility of an action brought against the Administering Authority on the basis of the alleged failure by it to comply with its obligations with respect to the administration of the Territory. However, the Court does not consider it necessary to enter into this debate and will confine itself to examining the particular circumstances in which the Trusteeship for Nauru was terminated”.
The most important part of the judgment in relation to Southern Cameroons is when the ICJ said:
“The facts set out above show that, when, on the recommendation of the Trusteeship Council, the General Assembly terminated the Trusteeship over Nauru in agreement with the Administering Authority, everyone was aware of subsisting differences of opinion between the Nauru Local Government Council and the Administering Authority with regard to rehabilitation of the phosphate lands worked out before 1 July 1967.
Accordingly, though General Assembly resolution 2347 (XXII) did not expressly reserve any rights which Nauru might have had in that regard, the Court cannot view that resolution as giving a discharge to the Administering Authority with respect to such rights. In the opinion of the Court, the rights Nauru might have had in connection with rehabilitation of the lands remained unaffected. Regard being had to the particular circumstances of the case, Australia’s third objection must, in consequence, be rejected.
The above proves the hypothesis that if issues had been raised and not resolved, they cannot automatically be deemed as waived, they might subsist and survive the termination of the trusteeship agreement. The issue of finalization of the terms of joining la Republique du Cameroun was raised, was never concluded and hence termination of the trusteeship does not extinguish the issue and hence Britain can be sued on the issue despite the limitation stated in the Northern Cameroons case and acknowledged by the court in this case.
Jurisdiction Ratione Temporis
Australia’s fourth objection stresses that Nauru achieved independence on 31 January 1968 and that, as regards rehabilitation of the lands, it was not until December 1988 that that State formally “raised with Australia and the other former Administering Powers its position”. Australia, therefore, contends that Nauru’s claim is inadmissible on the ground that it has not been submitted within a reasonable time. Nauru’s delay in making its claim is alleged to be all the more prejudicial to Australia because the documentation relating to the Mandate and the Trusteeship may have been lost or dispersed in the interval, and because developments in the law during the interval render it more difficult to determine the legal obligations incumbent on the Administering Powers at the time of the alleged breaches of those obligations.
Nauru submitted its claim some 20 years after. Southern Cameroons is thinking of suing some 40 years after hence the same objections are applicable on the Southern Cameroon case.
The ICJ stated that “The Court recognizes that, even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible. It notes, however, that international law does not lay down any specific time-limit in that regard. It is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible”.
The court went on to hold that in the circumstances of the case, the 20 years delay did not make the case inadmissible. In the case of Southern Cameroons suing Britain, the fact that we have been in a state of emergency, that people are incarcerated or imprisoned when they bring the issue up, that we have tried to submit an interpleader at the ICJ and it was rejected, that we have tried to solve the problem by declaring our independence on radio Buea and such independence was crushed etc., might be enough to convince a judge in the UK to conclude that the 40 years delay is not fatal to the claim particularly with the fact that the claim is international in nature and international law does not prescribe a particular time limit for such claims.
Based on the above, I have dealt with the issue of lapse of the trusteeship agreement and said it can be resolved using the Nauru approach. The issue of 40 years delay has also been dealt with. The only issue left is the UK domestic issue of non-justiciability of diplomatic/foreign affairs issues and I think those can be overcome hence it might be possible to sue Britain for violations of the trusteeship agreement in Southern Cameroons. Such suing will have a dual purpose i.e. to win or at worse to raise publicity on the issue.