| III. | The International Court of Justice |
| 2. | THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE |
| 2.4. | Jurisdiction on the Basis of a Special Agreement |
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Frontier Dispute, Judgment
(Burkina Faso/Republic of Mali)
I.C.J. Reports 1986, p. 554
[pp. 577-578] In the Chamber's opinion, it should first be recalled
that there is a distinction between the question of the jurisdiction conferred
upon it by the Special Agreement concluded between the Parties, and the question
whether "the adjudication sought by the Applicant is one which the Court's
judicial function permits it to give", a question considered by the Court
in the case concerning the Northern Cameroons, among others (I.C.J.
Reports 1963, p. 31). As it also stated in that case, "even if the
Court, when seised, finds that it has jurisdiction, the Court is not compelled
in every case to exercise that jurisdiction" (ibid., p. 29). But in
the absence of "considerations which would lead it to decline to give
judgment" (I.C.J. Reports 1974, p. 271, para. 58), the Court is
bound to fulfil the functions assigned to it by its Statute. Moreover, the Court
has recently confirmed the principle that it "must not exceed the
jurisdiction conferred upon it by the Parties, but it must also exercise that
jurisdiction to its full extent" (Continental Shelf (Libyan Arab
Jamahiriya/ Malta), I.C.J. Reports 1985, p. 23). In the present case, the
Chamber finds it to be clear from the wording of the Special Agreement -
including its preamble - that the common intention of the Parties was that the
Chamber should indicate the frontier line between their respective territories
throughout the whole of the "disputed area", and that this area was
for them the whole of the frontier not yet delimited by joint agreement.
The Chamber also considers that its jurisdiction is not restricted simply
because the end-point of the frontier lies on the frontier of a third State not
a party to the proceedings. The rights of the neighbouring State, Niger, are in
any event safeguarded by the operation of Article 59 of the Statute of the
Court, which provides that "The decision of the Court has no binding force
except between the parties and in respect of that particular case". The
Parties could at any time have concluded an agreement for the delimitation of
their frontier, according to whatever perception they might have had of it, and
an agreement of this kind, although legally binding upon them by virtue of the
principle pacta sunt servanda, would not be opposable to Niger. A
judicial decision, which "is simply an alternative to the direct and
friendly settlement" of the dispute between the Parties (P.C.I.J.,
Series A, No. 22, p. 13), merely substitutes for the solution stemming
directly from their shared intention, the solution arrived at by a court under
the mandate which they have given it. In both instances, the solution only has
legal and binding effect as between the States which have accepted it, either
directly or as a consequence of having accepted the court's jurisdiction to
decide the case. Accordingly, on the supposition that the Chamber's judgment
specifies a point which it finds to be the easternmost point of the frontier,
there would be nothing to prevent Niger from claiming rights, vis-à-vis
either of the Parties, to territories lying west of the point identified by the
Chamber.
[pp. 579-580] The fact is, as the Parties seem to have realized
towards the end of the proceedings, that the question has been wrongly defined.
The Chamber is in fact required, not to fix a tripoint, which would necessitate
the consent of all the States concerned, but to ascertain, in the light of the
evidence which the Parties have made available to it, how far the frontier which
they inherited from the colonial power extends. Certainly such a finding
implies, as a logical corollary, both that the territory of a third State lies
beyond the end-point, and that the Parties have exclusive sovereign rights up to
that point. However, this is no more than a twofold presumption which underlies
any boundary situation. This presumption remains in principle irrebuttable in
the judicial context of a given case, in the sense that neither of the disputant
parties, having contended that it possesses a common frontier with the other as
far as a specific point, can change its position to rely on the alleged
existence of sovereignty pertaining to a third State; but this presumption does
not thereby create a ground of opposability outside that context and against the
third State. Indeed, this is the whole point of the above-quoted Article 59 of
the Statute. It is true that in a given case it may be clear from the record
that the legal interests of a third State "would not only be affected by a
decision, but would form the very subject-matter of the decision" (Monetary
Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32) so that
the Court has to use its power "to refuse to exercise its jurisdiction"
(I.C.J. Reports 1984, p. 431, para. 88). However, this is not the case
here.
The Chamber therefore concludes that it has a duty to decide the whole of
the petitum entrusted to it; that is, to indicate the line of the
frontier between the Parties over the entire length of the disputed area. In so
doing, it will define the location of the end-point of the frontier in the east,
the point where this frontier ceases to divide the territories of Burkina Faso
and Mali; but, as explained above, this will not amount to a decision by the
Chamber that this is a tripoint which affects Niger. In accordance with Article
59 of the Statute, this Judgment will also not be opposable to Niger as regards
the course of that country's frontiers.
