This article is regarding the case of frontier dispute between Burkina Faso v. Mali. What is of importance here is the fact that frontier disputes are a major reason for the Public International Law to exist. Going through a brief overview of facts, we have divided this article into various chapters with the progress of the case in a chronological order. Any discrepancy with regards to opinion or fact may please be condoned.
Facts
Stating the fact situation of the case ,the situation before the court was that by the way of 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.[1]
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.).[2]
Chapter-1 Requests For Indication Of Provisional Measures, Order Of 10th January,1986
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[3], 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.
Chapter-2 Pre Judgment Situation On The Merits Of 22nd 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.[4]
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.[5]
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.[6]
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.[7]
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.[8]
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.[9]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.[10]
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.
Chapter-3 Outcome Of The Frontier Dispute
In the case of frontier dispute between Burkina Faso v. Mali[11], for the first time a chamber of the court, rather than the court itself , ordered interim measures, having confirmed its authority to do so.[12] The parties in this dispute ,which was submitted to the chamber by a special agreement in September 1983, asked the court “what is the line of the frontier between the Republic of Upper Volta( Burkina Faso) and the republic of Mali in the disputed area? Burkina Faso claimed that on December 25th ,1985 , the armed forces of Mali attacked Burkina Faso. It sought interim measures, saying that the situation “which might be created on the ground as the outcome of the armed conflict would make it extremely difficult , if not impossible, to implement the courts judgement.[13] The destruction of elements of evidence during the hostilities would threaten to pervert the course of proceedings. Mali ,for its part claiming that “ Burkinabe armed elements had beleaguered and occupied the border villages under Malian administration,” [14]in turn asked for the indication of provisional measures. The parties were able to agree on a cease fire before the Chamber could pronounce, but the issue of troop withdrawals still remained.
The chamber made the link between the subject matter (the frontier line) and the incidents concerned not only by reference to the destruction of evidence material to the chambers eventual decision but also by reliance on new and broader factors. The chamber said the facts “expose the persons and property in the disputed area, as wll as the interests of both states within that area, to serious risk of irreparable damages.” The risk of irreparable harm to persons and property was ,in view of the chamber ,enough for provisional measures –even though,it must be said ,that harm could not of itself affect where the frontier line might run or the implementation of a judgment on the frontier line.
The chamber also found that where a dispute had been jointly brought before it, the incompability of the use of force with the principle of peaceful settlement waw wanted the indication of the use of force with the principle of peaceful settlement warranted the indication of provisional measures. This ,too ,strikes new ground, and appears incompatible with the courts findings in the Aegan Sea case.
The chamber indicated not only that both parties should ensure that no action was taked that might extend or aggravate the dispute or prejudice the right of the other party to compliance with any judgement, and not only that both parties should refrain from any such act to impede the gathering of evidence, that both the governments should continue to observe the ceasefire instituted by agreement between the two heads of state on 31st December 1985. Both governments should withdraw their armed forces to such positions, or behind such lines, as may, within twenty days of the date of present order, be determined by an agreement between those governments , in being understood that the terms of the troop withdrawal will be laid down by the agreement in question and that ,failing such agreement , the chamber will itself indicate them by means of an order. In regard to the administration of the disputed areas, the situation which prevailed before the armed actions that gave rise to the requiests for provisional measures should not be modified.
Conclusion
The case indicates the common occurrences that are there with regards to frontier disputes in front of the hon’ble International Court Of Justice. Though an exception which I would like to mention in this case is the fact that the evidence was in abundance. But still as I have mentioned earlier in my draft that the court was still not sure about the dependency which can be there on the evidence which was produced and the fact that if it was complete or not. But as it can be inferred from the happenings , the chamber did indicate a few measures in the judgment .the measures like both parties should ensure that no action was taken that might extend or aggravate the dispute or prejudice the right of the other party to compliance with any judgment, and not only that both parties should refrain from any such act to impede the gathering of evidence, that both the governments should continue to observe the ceasefire instituted by agreement between the two heads of state on 31st December 1985. Both governments should withdraw their armed forces to such positions, or behind such lines, as may, within twenty days of the date of present order, be determined by an agreement between those governments , in being understood that the terms of the troop withdrawal will be laid down by the agreement in question and that ,failing such agreement , the chamber will itself indicate them by means of an order. In regard to the administration of the disputed areas, the situation which prevailed before the armed actions that gave rise to the requests for provisional measures should not be modified.
The question on whether a chamber was regarded as all courts was also resolved in the case. Thus this case serves as a reliable precedent and an exhaustive source of knowledge on frontier disputes for future cases.
Bibliography
Primary Sources
1. International Court of Justice statute
Secondary Sources
Online Sources
1. www.mpil.de/ww/en/pub/research/details/…/wcd.cfm? as seen on 31/03/10
2. www.haguejusticeportal.net/eCache/DEF/6/246.html as seen on 02/04/10
3. http://journals.cambridge.org/action/displayAbstract;jsessionid=417182499A35B2F0C27E138E7D4F78B4.tomcat1?fromPage=online&aid=1509616 as seen on 4/04/10
Books:
1. Rainer Hoffmen, World Court Digest, Springer,4th edition,1993
2. Hague academy of international law , Hague academy of international law ,volume 17, Martinus Nijhoff Publishers, 2004
3. Jutta brunee, International law, chiefly as interpreted and applied in Canada( the fact that this is issue has been looked through the Canada statute is because of the percolating influences of the agreement itself), Emond Montgomery Publication ,5th edition, 2006
4. Gino J. Naldi , Documents of the organisation of African Unity , Mansell ,2nd edition, 1992
5. Sharon Detrick, Globalisation of child law , the role of the Hague Conventions, Martinus Njihoff Publishers ,1st edtition,1999
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[1] Rainer Hoffmen, World Court Digest, Springer,1993 pp-244
[2] Hague academy of international law , Hague academy of international law ,volume 17, Martinus Nijhoff Publishers, 2004 pp 341
[3] Jutta brunee, International law, chiefly as interpreted and applied in Canada( the fact that this is issue has been looked through the Canada statute is because of the percolating influences of the agreement itself), Emond Montgomery Publication ,2006 pp-118
[4] www.mpil.de/ww/en/pub/research/details/…/wcd.cfm? seen on 31/03/10
[5] Supra note 2
[6] Gino J. Naldi , Documents of the organisation of African Unity , Mansell , 1992 pp-229
[7] www.haguejusticeportal.net/eCache/DEF/6/246.htmlas seen on 02/04/10
[8] Sharon Detrick, Globalisation of child law , the role of the Hague Conventions, Martinus Njihoff Publishers ,1999 pp -14
[9] Supra note 1
[10] Ibid.
[11] 1986 I.C.J. 3 (Jan 10)
[12] Article 27 of the Stature or the I.C.J. provides that “a judgement given by any of the chambers provided for in article 26 and 29 shall be considered as rendered by the court.” It was nevessary to resolve whether that eant that a chamber had all the powers of the court or whether some – such as the indication of the interim measures-were always reserved to the full court.
[13] The dispute area was defined as “ a band of territory extending from the sector Koro Djibo up tp and including the region of Beli.”
[14]http://journals.cambridge.org/action/displayAbstract;jsessionid=417182499A35B2F0C27E138E7D4F78B4.tomcat1?fromPage=online&aid=1509616
Corrida Legal is consistently rated as the best corporate law firm & lawyers in Gurgaon, Delhi and Mumbai. Reach out to us on LinkedIn or contact us at contact@corridalegal.com/+91-8826680614 in case you require any legal assistance. The author of this article is Pushkar Thakur, Managing Partner at Corrida Legal. Pushkar is an ex AVP, Legal, Nomura and has led the legal teams at corporates namely Emaar India and Drake & Scull India. He represents clients before all major courts of India and has worked with Kochhar & Co., law firm. Pushkar is an expert in corporate law, contracts, litigation, employment law and data protection. Reach out to him on LinkedIn at: https://www.linkedin.com/in/pushkarthakurcorridalegal/ or pushkar.thakur@corridalegal.com. In case of urgent issues, you may call him at +91-8826680614.