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World Court Digest

II. Substantive International Law - Second Part

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

[pp. 566-567] However, it may be wondered how the time-hallowed principle has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.

[pp. 652-654 S.O. Luchaire] In legal discourse, the term "decolonization" should be used only with great caution and must above all not be confused with accession to independence.
On the one hand, it would be wrong to ignore a certain opinion - which like all opinions, whether one shares them or not, is deserving of some respect - to the effect that independence is not the opposite of colonization but rather its crowning achievement, especially in cases where it has been obtained, without fighting, from an administering authority which has facilitated the cultural, economic, social and political progress of the inhabitants, such progress being fundamental to any genuine independence.
On the other hand, it is the right of peoples to determine their own future which has received the blessing of international law: a right which is expressly enshrined in the French constitution of 1958 in regard to what were then the French overseas territories, including French Sudan (now the Republic of Mali) and Upper Volta (now Burkina Faso). What the Declaration made by the General Assembly of the United Nations on 14 December 1960 (1514 (XV)) specifies, in recognizing the right of self-determination possessed by all peoples, is that they "freely determine their political status"; but the exercise of that right does not necessarily lead to the independence of a State with the same frontiers as a former colony. It may lead (see the list of factors annexed to General Assembly resolution 648 (VII) of 10 December 1952) either to:

  • independence within the aforesaid geographical framework or
  • integration into the territory of the administering power with strict equality of rights as between individuals, irrespective of whether their origins lie in the former colony or the former metropolitan state, or merger with a neighbouring State on the same conditions of equality,
  • the voluntary association of the ex-colony with the former metropolis on terms including unqualified respect for the former's personality.

Finally, the exercise of the right of self-determination may evidently lead certain plainly individualized parts of the former colony to a different option from that followed by the other parts.
The history of the last few decades provides numerous examples of very different options being preferred from among these solutions. The area of Togo that used to be under British trusteeship was integrated with the State of Ghana; the northern part of that area of Cameroon which used to be under British trusteeship was merged with the State of Nigeria, and the southern part with the territory of Cameroon formerly under French trusteeship; British and Italian Somaliland became one State of Somalia; some of the trust territories under United States strategic administration chose independence, while the others opted for association with the United States; and so on.
Several conclusions can be drawn from this:

First, the frontiers of an independent State emerging from colonization may differ from the frontiers of the colony which it replaces, and this may actually result from the exercise of the right of self-determination.
Second, the colonial process must be regarded as finally over once the inhabitants of a colony have been able to exercise this right of self-determination. So far as the French overseas territories are concerned, and French Sudan and Upper Volta in particular, this means that the colonial phenomenon disappeared on 28 September 1958 when, by an act of self-determination - accomplished through a referendum the authenticity of which has not been challenged by anyone -, those territories chose their status. At the time, some wished to remain overseas territories receiving similar status to the other territorial entities of the French Republic, while others - including French Sudan and Upper Volta - opted for the status of member States of the Communauté, i.e., for the solution of association. Lastly, another - Guinea - chose independence. As from that date, the French overseas territories could therefore no longer be considered as colonies, and that they were fully free was confirmed by the fact that those having chosen the status of member States of the Communauté became independent in 1960, while this was later also the case with some of those that had opted for keeping the status of an overseas territory (e.g. the Republic of Djibouti).

These considerations undoubtedly present several points of interest where the settlement of the problem referred to the Chamber is concerned, for on the day of their independence Mali and Upper Volta acceded both to the powers the Communauté had been exercising in their regard and to the powers which they themselves had been exercising as member States of that Communauté; they therefore succeeded in large measure to themselves. Consequently, by virtue of the theory of State succession, they remain bound by the deliberate or implicit decisions they took or may be deemed to have taken within the framework of the very broad powers they enjoyed before the day of their accession to independence.