II. | Substantive International Law - Second Part |
5. | SELF-DETERMINATION |
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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,
or
- 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.