31. Frontier Dispute Case (Burkina Faso v.

Republic of Mali)
FACTS:

This is a petition before the ICJ to resolve a border dispute. Burkina Faso (previously the
Republic of Upper Volta) and the Republic of Mali each obtained independence in 1960
following decolonization. Later, the Organization of African Unity, comprised of African Heads
of State, was formed. In 1964, the Organization of African Unity met in Cairo, Egypt and
issued a resolution declaring that all member States of the Organization of African Unity
“solemnly pledge themselves to respect the frontiers existing on their achievement of
national independence.” This resolution codified into law the age-old international principle
of uti possidetis. In 1975, the Head of State of Mali made a statement indicating a lack of
respect for the existing boundaries between Mali and Burkina Faso. Mali and Burkina Faso
later submitted to a Chamber of the International Court of Justice (ICJ) the question of the
proper demarcation of boundary lines between the two States. In considering the case, the
ICJ discussed the principle of uti possidetis. Burkina Faso and Mali submitted a question to
the International Court of Justice regarding a border dispute.

Issue:

Does there exist an obligation to respect pre-existing international frontiers in the event of a
state succession?

Held:

Yes. There exists an obligation to respect pre-existing international frontiers in the event of
a state succession, whether or not the rule is expressed in the form of uti possidetis. Thus,
the numerous declarations of the intangibility of the frontiers at the time of the declaration
of independence of the African states are declaratory. The fact that the principle did not exist
when the states declared such independence in 1960 does not foreclose its present
application.

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.

There exists an obligation to respect pre-existing international frontiers in the event of a

succession. The principle of uti possidetis developed with respect to the Spanish American
colonies. In a similar dispute between El Salvador and Honduras, the Court described the
principle as follows: “The general principle offered the advantage of establishing an absolute
rule that there was not in law in the old Spanish America any terra nullius; while there might
exist many regions that had never been occupied by the Spaniards, the regions were
reputed to belonging in law to whichever of the republics succeeded to the Spanish province
to which these territories attached by virtue of the old Royal ordinances of the Spanish
mother country.”
 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.