III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.7. | Evidence |
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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.