Summaries of the Decisions
Frontier Dispute
(Burkina Faso v. Mali)
By a Special Agreement of 16 September 1983 filed with the Registry of the
Court on 20 October 1983 the Republic of Burkina Faso and the Republic of Mali
had submitted a dispute to the Court concerning the delimitation of their common
frontier. According to Article II of this Special Agreement the case was to be
decided by a Chamber of the Court constituted according to Article 26(2) of the
Statute. After having duly consulted the Parties as to the composition of the
Chamber, the Court decided by an order of 3 April 1985 that the Chamber was to
be composed of the Judges Lachs, Ruda and Bedjaoui as well as Judge ad hoc
Luchaire to sit for Burkina Faso and Judge ad hoc Abi-Saab to sit for
Mali.
Requests for the Indication of Provisonal Measures,
Order of 10 January 1986
Before the Chamber had the opportunity to decide the question, the dispute
flared up into war on Christmas Day 1985 apparently because of a census carried
out by Burkinabe authorities allegedly violating Malian sovereignty. Both
Parties then asked the Chamber to indicate provisional measures in order to
preserve their respective rights although, at the same time, they were engaged,
since 1977, in a political mediation endeavour within a regional West African
group under the Accord de non-agression et d'assistance en matière de
dèfense (A.N.A.D.). On 30 December 1985, this group reached a common
declaration made by Burkina Faso and Mali containing the terms of a cease-fire
but postponing the question of troop withdrawal which, according to Burkina
Faso, should be ordered by the Court. With a view to the common declaration and
the negotiation process under the auspices of A.N.A.D., Mali objected to the
request. In its Order of 10 January 1986, the Chamber stated that the
negotiations between the Parties were not incompatible with the functions of the
Court but concluded, with regard to this special item, that an order concerning
the withdrawal of the troops required geographical and strategic expertise which
the Chamber lacked so that the regulation of this point was left to the A.N.A.D.
process. Among the provisional measures indicated by the Chamber there may be
mentioned the order to re-establish, as regards the administration of the
disputed areas, the status quo ante the armed conflict.
Judgment on the Merits of 22 December 1986
Since both Parties had agreed that at the moment of independence there
existed a definite frontier and that no modification had taken place since 1959
to 1960, it was the task of the Chamber to define this frontier line in the
disputed area.
As regards the applicable law, the Parties had stated in the preamble to the
Special Agreement that the settlement of the dispute should be "based in
particular on the respect for the principle of the intangibility of frontiers
inherited from colonization". Thus, the Chamber could not disregard the
principle of uti possidetis juris which it declared to be a firmly
established principle of international law where decolonization is concerned.
Its obvious purpose was to prevent the independence and stability of new States
being endangered by the challenging of frontiers subsequent to the withdrawal of
the administering power by upgrading former administrative frontiers to
international frontiers. This principle, therefore, might represent the wisest
course to preserve stability; it might, however, be wondered that the principle
had been able to withstand the new attitudes to international law that had
developed, since at first sight it conflicted outright with the right of peoples
to self-determination. But as African States had selected the principle of uti
possidetis among all other classic principles, the Chamber could not
challenge it merely because in 1960, when both Parties achieved independence,
this principle had not yet been proclaimed by the African Heads of State and
Government.
The Chamber then considered whether equity could be invoked and decided that
only equity infra legem was to be considered; this is shown by the
application which the Chamber made of equity in delimitating the frontier on the
basis of the rules and principles applicable in the case. These considerations
of equity infra legem had to come into play in order to guide the
Chamber in the exercise of its functions of interpreting and applying the law
and the legal titles involved, since it had to draw a delimitation line and not
only to indicate the principles on the basis of which the Parties would
themselves proceed to delimitation.
As a last consideration concerning the applicable law, the Chamber had
regard to the French colonial law, droit d'outre-mer, since both Parties
had been part of French West Africa. As the frontier between the Parties became
an international frontier upon independence, French law, according to the
Chamber, could no longer play a role in itself but only as one factual element
among others, or as evidence indicative of what has been called the "colonial
heritage", because international law did not contain any renvoi to the law
of the colonizing States.
The Chamber had two preliminary questions to examine, the first of which
concerned the argument of acquiescence, the second the classic problem of
interference into the rights of third States not party to the dispute.
As regards acquiescence, Burkina Faso had argued that Mali had accepted as
binding the solution to the dispute outlined by the OAU Mediation Commission. If
this objection were well-founded there would have been no need for the Chamber
to establish the frontier inherited from the colonial period. The Chamber,
however, disposed of this objection because, on the one hand, both Parties had
agreed that the Commission had not been a judicial organ competent to issue
legally binding decisions and, on the other hand, the Commission had never
completed its work. As to the official declarations of Mali concerning the
acceptance of the binding character of the solution to be found by the
Commission, the Chamber stated that those declarations had not been made during
negotiations between the two Parties and thus could at most be regarded as
unilateral acts not intended to create legal obligations. As to the argument
that Mali had acquiesced to the application of the principles of delimitation
approved by the sub-commission and intended to serve as a basis for the final
report of the Mediation Commission, the Chamber found that Mali's approach to
those principle was of little significance: Since the Chamber had to decide on
the basis of international law the principles found by the sub-commission had to
be applied as such if they were elements of law; if not, they were of no
importance since the Special Agreement did not refer to them.
As regards the problem of possible interference into rights of third States
not party to the dispute, Mali had argued that the Chamber was not competent to
fix the tripoint Mali-Niger-Burkina Faso, forming the end-point of the frontier
between the parties, without Niger's agreement. Burkina Faso in turn considered
that according to the Special Agreement the Chamber had to determine
definitively the entire common frontier and thus to determine the tripoint. The
Chamber disposed of this preliminary objection by finding that its jurisdiction
was not restricted only because of the fact that the disputed area was adjacent
to a third State, Niger, not party to the proceedings, whose rights,
incidentally, were protected under Article 59 of the Statute.
As to the second aspect of the question whether the need of safeguarding the
interests of a third State concerned would require the Chamber to refrain from
determining the whole course of the frontier line as requested in the Special
Agreement, the Chamber found that this would presuppose that those legal
interests of the third State would form the very subject-matter of the decision
which, however, was not the case: In the present case, the Chamber had not so
much to define a tripoint, as to indicate the ultimate point of the frontier
which ceases to divide the territories of Burkina Faso and Mali, which implied
logically that the territory of a third State (Niger) lies beyond the end-point
of that frontier.
The Chamber then proceeded to examine the abundant evidence produced by the
parties, in particular legislative and regulative texts and administrative
documents, the legal force of which was in dispute. As to the maps submitted,
the Chamber departed from the principle that they merely constitute information,
and never territorial titles in themselves. They were given the effect of "corroborative
evidence endorsing a conclusion at which the Court has arrived by other means
unconnected with the maps". However, two of the maps produced appeared to
be of special significance, one of which, issued between 1958 and 1960 by the
French Institut géographique national (IGN), a neutral body in
relation to the parties, must be viewed as compelling where other evidence is
lacking. Besides this material, also the colonial "effectivités",
that is the conduct of the colonial administrative authorities, had to be taken
into account as proof of the effective exercise of territorial jurisdiction in
the region, although the role of these "effectivités"
was rather complex and in need of careful evaluation.
Despite the abundance of evidence submitted there were some shortcomings and
inconsistencies which rendered the task of determining the frontier a rather
complex one, because the Chamber had to find out "where the frontier lay in
1932 in a region of Africa little known at the time by reference to legislative
and regulative texts, not all of which were even published and maps which were
sometimes of doubtful accuracy and reliability". Thus, finally, the Chamber
could not be certain that it was deciding upon the basis of full knowledge of
the facts.
After having examined all evidence in detail and having determined what
weight to attach to each aspect, the Chamber determined the frontier in the
disputed area beginning with the endpoint of the frontier already established
between the parties. Although not even this point had been clearly indicated by
the parties, the Chamber could conclude that there was such a point accepted by
both parties. The Chamber then proceeded by drawing a series of straight lines
in eight different sectors of the disputed area. The actual delimitation line
was reproduced on a map annexed to the judgment.
Nomination of Experts
The final act of the Chamber in this dispute consisted in the order of 9
April 1987 in which it nominated, according to Article IV of the Special
Agreement, three experts to assist the parties in the operation of the
demarcation of the frontier.