|II.||Substantive International Law - Second Part|
|1.||TERRITORY OF STATES|
|1.2.4.||Principle of "uti possidetis"|
Case Concerning the Land and Maritime
Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening)
Judgment of 10 October 2002
76. I wish to return once more to the question of the respect for colonial boundaries.
77. As has already been said, the countries of Africa, meeting in Cairo in 1964, adopted resolution AGH/Res.16 (1), under which: "all Member States [of the Organization of African Unity]pledge themselves to respect the frontiers existing on their achievement of national independence".
78. The Parties agreed that this principle, which they called uti possidetis juris, was applicable to the present case. The Court did not see fit to have recourse to it. I regret that.
This principle clearly means that Nigeria could not challenge today a boundary which existed for 47 years before its independence and which Nigeria itself unequivocally accepted as the boundary between its territory and that of Cameroon from 1960 to 1977.
If one were not to accept this, what would be the purpose of the principle of respect for colonial boundaries? If we refer to paragraphs 19 to 26 of the Court's Judgment in the Frontier Dispute case, we can clearly see the importance attached by Africa, and by the Court too, to the principle.
The Chamber stated:
"Although there is no need, for the purposes of the present case, to show that this is s firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasize its general scope, in view of its exceptional importance for the African continent and for the two Parties" (I.C.J. Reports 1986, p. 565, para. 20);
"It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power". (Ibid.)
79. When African States speak of uti possidetis juris, they employ the phrase "intangibility of colonial frontiers". These words best reflect their common view. Of course it would be unreasonable to conclude from this that frontiers are immutable. They can certainly be modified, not by invoking their technical defects but only in accordance with the rules of international law in other words, by mutual agreement or by judicial decisions. In the latter case, the forum seised of the matter must confine itself to interpreting the instruments determining the boundary and must not rewrite them. In other words, it may remedy material defects, but not alleged errors. Two cases illustrate this point. The case of the mouth of the Ebejy (a material defect) and the case of the "Nigerian" villages of Lake Chad (an alleged error). This second case would involve a legal rectification. The same applies to the historical consolidation invoked by Nigeria in respect of Bakassi. The Court does not have a power of rectification. A court cannot change a clear provision. That would exceed its power.