1986

ICJ

Frontier Dispute Case Burkina Faso/Mali

The Chamber's task was to indicate the line of the frontier between Burkina Faso and the Republic of Mali in the disputed area which is defined in the Special Agreement as consisting of "a band of territory extending from the sector Koro (Mali) Djibo (Upper Volta) up to and including the region of the Béli". both States involved derive their existence from the process of decolonization which has been unfolding in Africa during the past 30 years: it can be said that Burkina Faso corresponds to the colony of Upper Volta and the Republic of Mali to the colony of Sudan (formerly French Sudan). Burkina Faso contended that Mali had acquiesced in the solution outlined by a Commission in 1975. That acquiescence was to be found in the declaration made by the Head of State of Mali on 11 April 1975, whereby Mali declared itself bound in advance by the report to be drawn up by the Mediation Commission on the basis of the specific proposals emanating from its Legal Sub-Commission. That report was never issued, but it is known what the proposals of the Sub-Commission were. Resolution (39) ‘the statement of Mali’s head of state on 11 April 1975 was not made during negotiations or talks between the parties; at most it took the form of a unilateral act by the government of Mali. Such declarations concerning legal status or factual situations may indeed have the effect of creating legal obligations (Nuclear test) but the court also made clear in those cases that it is only ‘when it is the intention of the State making the declaration that it should become binding according to its terms, that the intention confers on the declaration the character of legal undertaking. Thus all depends on the intention of the State in question. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred’

The uti possidetis principle is not a special rule which pertains solely to one specific system of IL. It is a general principle, which is logical connected to the phenomenon of independence. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles. uti possidetis conflicts with self-determination. However, the essential requirement of stability has induced African States to consent (deliberate choice) the principle and to take account of this when interpreting self-determination. The Chamber cannot decide ex aequo et bono, since the Parties have not requested it to do so. It will, however, have regard to equity infra legem, that is, that form of equity which constitutes a method of interpretation of the law in force, and which is based on law. Taking into account the jurisprudence of the Court, there are no grounds to interpret the declaration in question as a unilateral act with legal implications in regard to the dispute. The Judgment then considers the principles of delimitation approved by the Legal Sub-Commission, which, according to Burkina Faso, Mali agreed, should be taken into consideration. The Chamber concludes that, since it has to determine the frontier line on the basis of international law, it is of little significance whether Mali's approach signifies acquiescence to such principles. If those principles are applicable as elements of law, they remain so whatever Mali's attitude. The situation would only be otherwise if the two Parties had asked the Chamber to take account of them.