| I. | Substantive International Law - First Part |
| 1. | THE FOUNDATIONS OF INTERNATIONAL LAW |
| 1.2. | Equity |
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Frontier Dispute, Judgment
(Burkina Faso/Republic of Mali)
I.C.J. Reports 1986, p. 554
[pp. 567-568] It is clear that the Chamber cannot decide ex
aequo et bono in this case. Since the Parties have not entrusted it with the
task of carrying out an adjustment of their respective interests, it must also
dismiss any possibility of resorting to equity contra legem. Nor will
the Chamber apply equity praeter legem. On the other hand, it will have
regard to equity infra legem, that is, that form of equity which
constitutes a method of interpretation of the law in force, and is one of its
attributes. As the Court has observed: "It is not a matter of finding
simply an equitable solution, but an equitable solution derived from the
applicable law." (Fisheries Jurisdiction, I.C.J. Reports 1974, p.
33, para. 78; p. 202, para. 69.) How in practice the Chamber will approach
recourse to this kind of equity in the present case will emerge from its
application throughout this Judgment of the principles and rules which it finds
to be applicable.
[pp. 632-633] It should again be pointed out that the Chamber's task
in this case is to indicate the line of the frontier inherited by both States
from the colonizers on their accession to independence. For the reasons
explained above, this task amounts to ascertaining and defining the lines which
formed the administrative boundaries of the colony of Upper Volta on 31 December
1932. Admittedly, the Parties could have modified the frontier existing on the
critical date by a subsequent agreement. If the competent authorities had
endorsed the agreement of 15 January 1965, it would have been unnecessary for
the purpose of the present case to ascertain whether that agreement was of a
declaratory or modifying character in relation to the 1932 boundaries. But this
did not happen, and the Chamber has received no mandate from the Parties to
substitute its own free choice of an appropriate frontier for theirs. The
Chamber must not lose sight either of the Court's function, which is to decide
in accordance with international law such disputes as are submitted to it, nor
of the fact that the Chamber was requested by the Parties in their Special
Agreement not to give indications to guide them in determining their common
frontier, but to draw a line, and a precise line.
As it has explained, the Chamber can resort to that equity infra legem,
which both Parties have recognized as being applicable in this case (see
paragraph 27 above). In this respect the guiding concept is simply that "Equity
as a legal concept is a direct emanation of the idea of justice" (Continental
Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports 1982, p. 60, para.
71). The Chamber would however stress more generally that to resort to the
concept of equity in order to modify an established frontier would be quite
unjustified. Especially in the African context, the obvious deficiencies of many
frontiers inherited from colonization, from the ethnic, geographical or
administrative standpoint, cannot support an assertion that the modification of
these frontiers is necessary or justifiable on the ground of considerations of
equity. These frontiers, however unsatisfactory they may be, possess the
authority of the uti possidetis and are thus fully in conformity with
contemporary international law. Apart from the case of a decision ex aequo et
bono reached with the assent of the Parties, "it is not a matter of finding
simply an equitable solution, but an equitable solution derived from the
applicable law" (Fisheries Jurisdiction, I.C.J. Reports 1974, p.
33, para. 78). It is with a view to achieving a solution of this kind that the
Chamber has to take account, not of the agreement of 15 January 1965, but of the
circumstances in which that agreement was concluded.
