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World Court Digest

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.