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World Court Digest

III. The International Court of Justice
3.7. Evidence

¤ Frontier Dispute, Judgment
(Burkina Faso/Republic of Mali)
I.C.J. Reports 1986, p. 554

[p. 568] By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession. International law - and consequently the principle of uti possidetis - applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the "photograph" of the territorial situation then existing. The principle of uti possidetis freezes the territorial title; it stops the clock, but does not put back the hands. Hence international law does not effect any renvoi to the law established by the colonizing State, nor indeed to any legal rule unilaterally established by any State whatever; French law - especially legislation enacted by France for its colonies and territoires d'outre-mer - may play a role not in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of what has been called the "colonial heritage", i.e., the "photograph of the territory" at the critical date.

[pp. 582-583] At the present stage of its reasoning the Chamber can confine itself to the statement of a principle. Whether in frontier delimitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.
The actual weight to be attributed to maps as evidence depends on a range of considerations. Some of these relate to the technical reliability of the maps. This has considerably increased, owing particularly to the progress achieved by aerial and satellite photography since the 1950s. But the only result is a more faithful rendering of nature by the map, and an increasingly accurate match between the two. Information derived from human intervention, such as the names of places and of geographical features (the toponymy) and the depiction of frontiers and other political boundaries, does not thereby become more reliable. Of course, the reliability of the toponymic information has also increased, although to a lesser degree, owing to verification on the ground; but in the opinion of cartographers, errors are still common in the representation of frontiers, especially when these are shown in border areas to which access is difficult.
Other considerations which determine the weight of maps as evidence relate to the neutrality of their sources towards the dispute in question and the parties to that dispute. Since relatively distant times, judicial decisions have treated maps with a considerable degree of caution: less so in more recent decisions, at least as regards the technical reliability of maps. But even where the guarantees described above are present, maps can still have no greater legal value than that of corroborative evidence endorsing a conclusion at which a court has arrived by other means unconnected with the maps. In consequence, except when the maps are in the category of a physical expression of the will of the State, they cannot in themselves alone be treated as evidence of a frontier, since in that event they would form an irrebuttable presumption, tantamount in fact to legal title. The only value they possess is as evidence of an auxiliary or confirmatory kind, and this also means that they cannot be given the character of a rebuttable or juris tantum presumption such as to effect a reversal of the onus of proof.

[pp. 587-588] At this stage of its reasoning, the Chamber must emphasize that the present case is a decidedly unusual one as concerns the facts which have to be proven and the evidence which has been, or might have been, produced for this purpose. The Chamber has to ascertain where the frontier lay in 1932 in a region of Africa little known at the time and largely inhabited by nomads, in which transport and communications were very sketchy. In order to identify this the Chamber has to refer to the legislative and regulative texts, not all of which were even published; to the maps and sketch-maps compiled at the time, maps which are sometimes of doubtful accuracy and reliability and which contradict one another; and to administrative documents which, having been drawn up for the purposes of a system of government which ceased to exist nearly 30 years ago, have had to be obtained from various collections of archives. Although the Parties have provided it with a case file as complete as possible, the Chamber cannot however be certain of deciding the case on the basis of full knowledge of the facts. The case file shows inconsistencies and shortcomings. Some of these are already known; the Parties have informed the Chamber that they were unable to locate certain specific documents such as, for example, the cartographic documents mentioned in paragraph 57 above. But even if those documents had been located, the Chamber cannot preclude the possibility that the large body of archives from the French West Africa administration, now dispersed among several countries, may contain further documents of considerable relevance.
In these circumstances, it is clear that the Court cannot resolve the problem by means of any of its powers in the matter of evidence under Articles 48, 49 and 50 of its Statute. Nor can the solution be looked for in a systematic application of the rule concerning the burden of proof. For example, in respect of certain villages of which it is necessary to determine the administrative situation between 1927 and 1935, Mali claims that it is for Burkina Faso to demonstrate the Voltan character of the villages during that period. While it is true that "ultimately ... it is the litigant seeking to establish a fact who bears the burden of proving it" (Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1984, p. 437, para. 101), it is also for Mali to establish the facts underlying its claims, that is, to demonstrate that the villages were Sudanese at that time. The Special Agreement of 20 October 1983 by which the case was brought before the Court deals with the question of the burden of proof only in order to make it clear that it is not prejudged by the written procedure there provided for (Art. 3, para. 2). In any event, however, in a case such as this, the rejection of any particular argument on the ground that the factual allegations on which it is based have not been proved is not sufficient to warrant upholding the contrary argument. The Chamber has to indicate the line of the frontier on the basis of the documents and other evidence presented to it by the disputant Parties. Its task is further complicated by the doubts it has expressed above regarding the sufficiency of this evidence.