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III. The International Court of Justice
2.4. Jurisdiction on the Basis of a Special Agreement

¤ 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.