Tangible Reality?: Challenging the Rigidity of the 1964 Cairo Declaration

DRAFT Challenging the rigidity of 1964 Cairo declaration – Donaldson

Tangible reality?: Challenging the rigidity of the 1964 Cairo declaration

(DRAFT PAPER NOT FOR CITATION)

ABORNE Conference, Johannesburg, 9‐12 September 2009

John W. Donaldson

International Boundaries Research Unit

Department of Geography

Durham University

DRAFT Tangible reality? – Donaldson, ABORNE 2009

1. Boundaries and borders

1.1. The increasing gulf in academic approaches to boundaries and borders has made it more difficult to interlink the two and find areas of common ground where the approaches may be mutually beneficial. Boundaries are distinguished by three characteristics; they are fixed/static, linear and bilateral. The traditional definition of borders identifies them as the geographic areas around the pre‐existent boundary1 which will include the infrastructures of controlling movement from one jurisdiction to another. The linguistic distinction between the terms has long been debated and recent scholars have observed that the two sub‐ disciplines have gradually drifted apart to become what Henk Van Houtum calls “separate subfields.”2 Boundary studies have become more aligned with international legal scholarship than its traditional genus of political geography where border and bordering discourses have become more dominant.3 The two sub‐disciplines may be drifting apart but that has not always been the case. As the African Union Border Programme has set in motion recovery and improved definition of African boundaries by 2012, it may be useful for policy‐makers to recall that boundaries and borders have had a much more complex relationship even during these unique practices of boundary‐making than may be popularly understood.

1.2. Within political geography, John Agnew and Stuart Corbridge have famously warned against falling into what they refer to as the territorial trap, or the de‐contextualised approach that treats states as independent actors irrespective of the exercise of control over their respective territories.4 Avoiding the territorial trap requires a contextualised focus on actual state practices of control that may or may not coincide with its defined territory, perhaps drawn most distinctly from Robert Sack’s concepts of human territoriality “delimitation becomes a territory only when its boundaries are used to affect behaviour by controlling

1 J.R.V. Prescott and G. Triggs, International Frontiers and Boundaries: Law, Politics and Geography, (Leiden: Koninklijke Brill NV, 2008), 12.

2 H. Van Houtum, ‘The geopolitics of borders and boundaries’ Geopolitics 10:4 (2005), 672‐679. 674.

3 Note that the 2008 edition of Victor Prescott’s seminal work Political Frontiers and Boundaries was co‐ authored by an international legal scholar Gillian Triggs. This may be related to what Julian Minghi suggests is the tendency for ‘traditional’ boundary studies to gravitate towards inter‐state conflict and the prevention thereof. J. Minghi, ‘From conflict to harmony in border landscapes’ in D. Rumley and J. Minghi, eds., The Geography of Border Landscapes, (London: Routledge, 1991), 17

4 J. Agnew and S. Corbridge, Mastering Space: Hegemony, Territory and International Political Economy, (London: Routledge, 1995), 79

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access.”5 Relating borders and bordering to sites of control has expanded the discipline to encompass a broad range of social and political practices, as well as a broader geographic scope to include those border sites that are not necessarily positioned near the territorial limits of the state (airports, embassies, refugee camps, etc). Borders and bordering may take the form of being fixed (control posts, barriers etc.) and linear (fencing), but they are almost exclusively unilateral activities. They are the processes by which a state asserts control, purportedly for some kind of benefit: security from an external threat, economic benefit from customs/taxes or the engendering of national identity.

1.3. What have been nudged out of the border and bordering discourses are those bilateral practices related to boundaries specifically. Boundaries may mark the limits of territorial sovereignty, but they are not simply abstract “legal facts” 6 that distinguish borderland regions ab initio and are able to be reproduced objectively. If only considered lines on maps or lists of coordinates in a treaty, boundaries might be thought of as de‐contextualised mathematical constructs subject only to a formulaic or technical system that allows them to be replicated. David Newman suggests: “Any attempt, therefore, to create a methodological and conceptual framework for the understanding of boundaries must be concerned with the process of ‘bordering’, rather than simply with the means through which physical lines of separation are delimited and demarcated.”7 While such a perspective has broadened approaches to border studies, the casting off of delimitation and demarcation as ‘simple’ implies that these are de‐contextualised practices. This may be the case if understood from a small scale, high‐political/diplomatic perspective, but boundaries themselves can also be physical entities of the landscape that do have distinct historical, geographical and social contexts at the local scale. This can be observed both in those practices specific to them, as well as the resultant bordering practices of state control.

1.4. A key distinction between border and boundary practices is that since they are inherently bilateral, boundaries necessitate some kind of cooperation or interaction between neighbouring sovereigns. This is rooted in international law’s post‐imperial, core tenets of territorial integrity and sovereign equality; that is focused on where a state can assert control rather than where a state does exert control. Despite the pejorative tone of the phrase ‘territorial trap’, the notions of sovereign equality and territorial integrity that lie at its core also form the basis of inter‐state dispute settlement, particularly in relation to

5 R.D. Sack, Human Territoriality: Its theory and history (Cambridge: Cambridge University Press, 1986), 19.

6 H. Van Houtum, O. Kramsch and W. Zierhofer eds., B/ordering Space (Aldershot: Ashgate Publishing, 2005), 3.

7 D. Newman, 2005 ‘From the International to the Local in the Study and Representation of Boundaries: Theoretical and Methodological Comments’ in Holding the Line: Border in a Globalized World eds. H. Nicol and I. Townsend‐Gault (Vancouver: University of British Colombia Press, 2005), 400.

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boundaries. With this in mind, international law is effectively rooted within the territorial trap as individual states are considered to have equal, legal personality8 irrespective of the disparity in capabilities to exercise control. The jurisprudence of the International Court of Justice (ICJ) and arbitral tribunals in boundary disputes, particularly across Africa, reveals the degree to which unilateral practices of control are ignored in favour of bilateral definitions, no matter how rudimentary and ambiguous those definitions might be. In the Cameroon‐ Nigeria boundary case, the ICJ effectively discounted Nigeria’s administrative record within the Bakassi peninsula9 and considered it insufficient to supplant what the Court considered to be a pre‐existent and bilaterally agreed boundary. In the 1986 Burkina Faso‐Mali case, the ICJ explained that administrative acts were most relevant in the perfection of an existing title over territory.10

1.5. If international law considered unilateral acts of control as valid methods of acquiring territorial title, would not more powerful states simply assert control over whatever territory they desired thereby generating legal sovereignty? Certainly within realistic state practice, hegemonic state powers do assert direct and indirect control over certain areas within the territory of other sovereign states, but international law is quite clear that this should not facilitate a change in legal title.11 At its very essence, international law grew out of the rejection of imperial, hegemonic practices of control and sought to resolve disputes between states based on those very aspects of the territorial trap (sovereign equality and territorial integrity). In doing so, and perhaps unwittingly, international law has promoted a zero‐sum game in when it comes to the boundary practices undertaken by neighbouring states.

1.6. In the first half of the twentieth century, the practices of boundary‐making were the subject of much debate and scrutiny within political geography. This was based largely on imperial practice to which the debates were also self‐supporting. However, with boundary studies

8 I. Brownlie, Principles of Public International Law Fifth Edition (Oxford: Oxford University Press, 1998), 106.

9 International Court of Justice (ICJ), ‘Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria with Equatorial Guinea intervening, Judgment’ I.C.J. Reports (2002): 301‐458. paras. 218‐224.

10 International Court of Justice (ICJ), ‘Frontier Dispute (Burkina Faso/Mali) Judgment’ I.C.J. Reports (1986): 554‐651. para. 63.

11 The ICJ recently reiterated this premise in its 2004 advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and cited the UN General Assembly’s ‘Declaration on Principles of International law concerning the Friendly relations and Co‐operation between states’ “No territorial acquisition resulting from the threat or use of force shall be recognised as legal.” United Nations (UN) General Assembly (GA) Res. 2625 (XXV). See also International Court of Justice (ICJ) ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion 9 July 2004’ ICJ Reports (2004). paras. 87‐88.

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drifting towards international law understandings about the practices of boundary‐making, the focus has become perhaps more on how the game of dispute settlement was either won or lost, rather than what happens to a boundary after the ‘game’ is over. The contextual analysis that may be provided by current geographical critique is being supplanted by international legal procedures that, by necessity, must take an objective rather than a subjective approach to boundary practices.12 Contemporary political geography and border studies have tended to avoid engagement with boundary‐making practices that are often simply characterised as a ‘technical’ or formulaic system of delimitation and demarcation.13 This oversimplifies what are in fact complex practices that do not follow a single methodological system with distinct and finite stages. These are on‐going practices that require close engagement between neighbouring state officials as well as engagement with the human and physical border landscapes.

1.7. As the African Union Border Programme (AUBP) begins its ambitious initiative to demarcate all of Africa’s boundaries by 2012, the goal of this short piece to provide a warning against oversimplifying boundary making practices and succumbing to the rigidity of a zero‐sum game that may be derived from misperceptions about colonial boundary inheritance. This piece will begin by recalling one of the most cited clauses in inter‐African politics, article 2 of resolution 16(1) of the 1964 Cairo declaration. However, by reflecting on the often un‐cited phrasing of the remaining portions of resolution 16(1) the paper will reveal some of the political context around the Cairo declaration. More importantly, the focus will concentrate on the phrase “tangible reality” and how that phrase might imply an oversimplified understanding of the colonial territorial inheritance and of the challenges that face the AUBP. The suggestion will be that in most cases across Africa, the boundaries inherited at independence did not constitute a tangible reality and it should not be assumed that colonial boundary‐making practices were ‘complete’ at the time of independence. In fact, some colonial boundary‐making practices were less rigid and objective than may be previously thought. Some methodology reveals how local geography can be an active participant, to a greater or lesser extent, rather than an inert canvas in a more subjective approach to boundary practices.

2. 1964 Cairo Declaration

12 Kristof criticises the systematic boundary‐making advocated by Paul de la Pradelle in his 1928 work La Frontière as pursuing boundaries in an objective sense and advocated instead that boundaries should be addressed as subjective. L.K.D. Kristof, ‘The Nature of Frontiers and Boundaries’ Annals of the Association of American Geographers 49, no. 3‐1 (1959): 269‐282. 276.

13 Newman and Paasi, 1998. 189.

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2.1. The most frequently cited portion of the 1964 OAU Cairo Declaration is article 2 of resolution 16(1), of 24 total resolutions, that pledges the independent African states to respect their inherited borders. However, what is often missed out is the context in which the declaration was put together. Only those present at the Assembly of Heads of State will know exactly what was discussed, but the preamble of resolution 16(1) that prefaces the two operative articles provides clues to the context in which the famous declaration was made.

“AHG/Res. 16(1) Considering that border problems constitute a grave and permanent factor of dissention;

Conscious of the existence of extra‐African manoeuvres aimed at dividing African States;

Considering further that the borders of African States, on the day of their independence, constitute a tangible reality;

Recalling the establishment in the course of the Second Ordinary Session of the Council of the Committee of Eleven charged with studying further measures for strengthening African Unity;

Recognising the imperious necessity of settling, by peaceful means and within a strictly African framework, all disputes between African States;

Recalling further that all Member States have pledged, under Article IV of the Charter of African Unity, to respect scrupulously all principles laid down in paragraph 3 of Article III of the Charter of the Organization of African Unity: 1. SOLEMNLY REAFFIRMS the strict respect by all Member States of the Organization for the principles laid down in paragraph 3 of Article III of the Charter of the Organization of African Unity; 2. SOLEMNLY DECLARES that all Member States pledge themselves to respect the borders existing on their achievement of national independence.”

2.2. The first two sentences of resolution 16(1) clearly convey the fear of conflict between the newly independent African states that may have been provoked by boundary disputes during the initial stages of de‐colonisation. Disputes over the Algeria‐Morocco boundary and Somalia’s boundaries with neighbouring Ethiopia and Kenya had already caused the Moroccan and Somali heads of state to boycott the Cairo session. These tense situations would have been seen at the time in the shadow of the attempted secession of Katanga 6

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from the Democratic Republic of Congo that had tested the fledgling United Nations just three years prior to the Cairo assembly. The comparatively minor boundary dispute between Ghana and Upper Volta on‐going at the time of the assembly was even mentioned by name in resolution 20 of the Cairo Declaration. As Saadia Touval points out, the OAU itself had been helpless to settle these specific disputes and the whole focus of the Cairo assembly was to cement the OAU as a mechanism for inter‐state dispute resolution.14

2.3. This approach walked the thin line between the OAU’s primary focus on intercontinental political unity, and the seemingly paradoxical acceptance of inter‐state boundaries. Touval notes that while Kenyan president Kenyatta had suggested a special charter to preserve territorial status quo of OAU member states, the chief pan‐Africanist, Ghana’s president Kwame Nkrumah, argued that this would only smother territorial disputes. Nkrumah argued that the only permanent solution was an African union, but he connected the principle of respect for boundaries with the activation of the OAU’s proposed Commission of Mediation, Conciliation and Arbitration.15 This focus on creating a “strictly African framework” for dispute resolution is conveyed very clearly in the last two sentences of the preamble to resolution 16(1).

2.4. The second sentence of the preamble hints at fears of external, third state involvement in African affairs that could have accelerated potential conflicts. This hints at the close connection that the burgeoning OAU had with another seemingly strange‐bedfellow, the global Non‐Aligned movement. Dike Nworah explores this connection and saw Tanzania’s president Julius Nyerere as the most vocal proponent of the Non‐Aligned Movement within the OAU, seeing it as an avenue for weaker nations “trying to maintain their independence and use it for their own benefit in a world dominated politically, economically and militarily by a few big powers.”16 Again, it seems somewhat paradoxical that an organisation dedicated to inter‐state political unity might be closely aligned with a movement that was based on the notion of sovereign equality and territorial integrity. Nworah also noted that in spite of the firm language against external involvement, and the united rejection of colonialism and racialism that pervades the remaining resolutions in the Cairo declaration, each newly‐independent African state had a unique relationship with external powers including the formal colonial powers (such as economic connections).

14 S. Touval, ‘The Organization of African Unity and African borders’ International Organization 21:1 (1967). 102‐127.

15 Touval, 1967. 123‐124.

16 D. Nworah, ‘Nationalism vs. Coexistence: Neo‐African attitudes to classical neutralism’ Journal of Modern African Studies 15:2 (1977). 213‐237. 230.

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2.5. Obviously there were both domestic and external political influences unique to all of the heads of state at the Cairo assembly and these are well beyond the scope of this paper. Nor is there space to address the major issue of self determination in relation to the declaration of the Cairo assembly. However, both the pursuit of a uniquely African dispute resolution authority and the resultant tension between the OAU’s quest for political unity and the acceptance of territorial status quo (that is reiterated in both the preamble and in article 1) are ideas that are often ignored when article 2 of resolution 16(1), the pledge to respect the border existing at independence, is so frequently cited. For this brief work, the focus will be on another clause in the preamble that is also often ignored.

2.6. Sentence three of the preamble to resolution 16(1) states that “the borders of African States, on the day of their independence, constitute a tangible reality.” A powerfully explicit phrase, but did the boundaries (to use the more appropriate term elucidated above) between the newly independent African states really “constitute a tangible reality” at independence? In Suzanne Lalonde’s expansive study of the international legal concept of uti possidetis juris, she makes an interesting comparison between the de‐colonisation processes in Latin American and Africa. Lalonde suggests that at de‐colonisation in Latin America, there was first the question as to which former colonial administrative units would become independent states. Only then was the second question “how would those boundaries be determined?”17 (Lalonde pp. 121‐122) In other words: “For Latin American republics, it was not simply a question of maintaining the territorial status quo but of actually creating the territorial status quo.”18 (Lalonde p. 122) The ambiguity of both political and territorial distinctions at the moment of de‐colonisation led to many years of conflict between the emerging Latin American states during the early to mid nineteenth century.

2.7. In the African context, Lalonde suggests the process was different since the political distinction between colonial administrations was more distinct. “Devolution occurred within the territorial limits as defined by the metropolitan powers, which were at liberty to adjust boundaries and transfer territory right up to the date of independence.”19 Lalonde believes that the colonial boundaries across Africa were “defined with much greater precision than the Spanish administrative lines.”20 She concludes that the concept of uti possidetis juris for Latin American states provided entitlement to boundaries of the former Spanish

17 S. Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal/Kingston: McGill‐Queen’s University Press, 2002), 121‐122.

18 Lalonde, 2002. 122.

19 Lalonde, 2002. 122.

20 Lalonde, 2003. 123.

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administrative divisions “at law” while “the newly independent African states, for their part, merely agreed to accept those boundaries, in fact, that existed at the date of independence.”21 This provides some indication as to why the Cairo declaration specifically avoids using the term ‘uti possidetis’ but Lalonde only hints at the wide variety of boundary definition that existed across Africa at the moment of de‐colonisation by suggesting that:

“Those boundaries that had been established and clearly demarcated were, following independence, protected according to general principles of international law. Those boundaries that had been unsettled during the colonial period remained unsettled.”22

2.8. While most boundaries inherited by African states at independence were defined arguably with greater geographic precision than the vague limits of Spanish colonial administration in Latin America prior to 1810, it should not be concluded that all African boundaries constituted a ‘tangible reality’ at independence. The only distinction Lalonde makes between settled and unsettled boundaries does not begin to indicate the wide range of ways that boundaries were known to the respective African states at independence. The term ‘tangible reality’ quite clearly suggests that a boundary can be recognised on the physical landscape. This implies that one knows precisely when he/she passes across the static, fixed and linear limit of one state jurisdiction to another. This could take the form of a river, or a series of boundary pillars, but the importance is that the extent of jurisdiction is clearly known to those within the border landscape. A boundary may be depicted on a map but that does not that make it a ‘tangible reality.’ A boundary may be defined in a legally binding text to a greater or lesser degree of precision, but that does not make it a ‘tangible reality.’

2.9. Did the African leaders at the Cairo assembly believe their state boundaries constituted tangible realities? Was this assumed? Was this phrase used consciously to deflect attention away from inadequate boundary definition that may have led to more disputes? Whatever the case, the statement in the Cairo declaration clearly belies clear boundary definition from what was in fact a much more haphazard territorial inheritance. The phrase ‘tangible reality’ makes two unfortunate implications that are intertwined. First, by not making any distinction between the varying degrees of definition clarity, it suggests that all boundaries could be observed on the physical landscape at independence, that the colonial boundaries across Africa had reached fait accompli prior to independence. Second, if a boundary can reach fait accompli the logical implication is that it has been the product of a distinct and finite process or system.

21 Lalonde, 2002. 122.

22 Lalonde, 2002. 122.

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3. Tangible reality?

3.1. In Lalonde’s distinction between ‘settled’ and ‘unsettled’ boundaries, she admits that some African boundary sections were not “settled” at the time of independence. However, her distinction does not make clear if the term ‘settled’ refers to a clear verbal, cartographical or tangible boundary definition. Taking the phrase ‘tangible reality’ as a measure, there were in fact comparatively few boundary sections across Africa that would have been a reality on the border landscapes at the time of independence. Some boundary sections were relatively clear. The watershed section of the DRC‐Zambia boundary had been demarcated with pains‐ taking precision from 1927‐33 and an irregular maintenance regime ensured that much of the boundary section was clearly visible at Congolese and Zambia independence in 1960 and 1964 respectively. The Kenya‐Ethiopia boundary was demarcated clearly with geographic precision in early 1950s and 1960s, although the agreement itself was not ratified until 1970 after long negotiations over transboundary grazing rights.23

3.2. Those boundary sections that followed large rivers (Zambezi, Ruvumu, Congo, Ubangi) also would have been readily apparent on the border landscape.24 However, a much larger proportion of the total length of African boundaries is defined along small rivers and streams, many of which may not contain water for parts of the year.25 Although the 1905 Barotseland arbitral award placed the northern section of the Northern Rhodesia boundary along the 24° E meridian, the 1912‐15 Anglo‐Portuguese boundary commission revised the section to follow a complex series of local streams. For some imperial governments, rivers and streams made a sound, cost‐effective substitute for more expensive boundary pillars.26

3.3. The more devolved nature of British colonial administration meant that some of the intra‐ administrative boundaries were described with some degree of clarity in administrative records or maps, such as the 1926 Order in Council defining much of the Kenya‐Uganda

23 9 June 1970 Ethiopia‐Kenya border treaty, see: I. Brownlie, African Boundaries: A Legal and Diplomatic Encyclopaedia (London: C. Hurst & Co., 1979), 791‐822.

24 Along several of these river sections it was not specified where the boundary line ran within the rivers themselves (as was the case along the lengthy sections of DRC‐Congo boundary section along the Congo and Ubangi rivers on either side of Stanley Pool), but as a clearly visible landmark the rivers form a (seemingly) static, linear and bilateral division between jurisdictions.

25 See the International River Boundaries Database, International Boundaries Research Unit, Durham University. www.dur.ac.uk/ibru/resources/irbd

26 J.W. Donaldson, ‘Pillars and perspective: demarcation of the Belgian Congo‐Northern Rhodesia boundary’ Journal of Historical Geography 34:1 (2008), 471‐493. 485.

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boundary or the 1930 provisional administrative line between Sudan and Uganda that was depicted on later mapping. However, in many cases the British intra‐colonial boundaries were never demarcated on the ground. Due to the changing nature of French colonial administrative ‘cercles’ most of the intra‐French colonial boundaries had no clear definition in administrative texts or on mapping, and most had never been demarcated on the ground. There were some initiatives by the colonial governments to hammer out agreements over un‐agreed boundary sections as de‐colonisation gained momentum in the late 1950s. British and Belgian officials hastened negotiations over the long disputed section of the Belgian Congo‐Northern Rhodesia boundary between Lakes Mweru and Tanganyika in an ultimately unsuccessful attempt to resolve the dispute before Congolese independence in 1960.27

3.4. There were huge lengths of inter‐colonial boundaries that were not close to being ‘tangible realities’ on the physical landscapes. The lengthy overland section of the Ethiopia and Sudan boundary between what is now the tripoint with Eritrea and the Baro river was marked on the ground in 1903 with just 36 pillars, many of which disappeared soon after they were erected.28 The watershed between the Congo and Nile rivers that forms much of Sudan’s boundaries with neighbouring CAR and DRC was partially surveyed in the early 1920s but was never marked on the ground. Some boundary sections may have been demarcated in the late nineteenth and early twentieth centuries, but the fairly crude and impermanent marks were unlikely to still be visible at the time of independence. From blazed trees and iron telegraph poles to concrete pyramids and cleared tracks there was no consistency in the methodology of demarcation used by colonial officials in demarcating boundaries, both in terms of the types of infrastructure used and the frequency of marking. It is true that the OAU heads of state could not have addressed every possible boundary situation in the Cairo declaration. However, it is intriguing that they used a phrase as explicit as ‘tangible reality’ when the reality was that the boundaries had been subject to a range of varying demarcation methodologies.

4. Systematic boundary‐making?

4.1. The second implication that can be drawn from this phrase ‘tangible reality’ is the idea that boundary‐making is a formulaic process whereby a boundary is produced through a finite system. As a tangible feature of the border landscape, rather than a legal or cartographic abstraction, every boundary is subject to human and physical forces of their respective

27 See especially the correspondence related to negotiations over the Pedicle Road treaty in the National Archives (Kew) files CO 1015/1396, CO 1015/1397, CO 1015/2180 and CO 1015/2181

28 T.H. Al‐Nur, T.H. ‘The Sudan‐Ethiopia boundary: a study in political geography’ PhD thesis, University of Durham (1971). 116.

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landscapes. It needs little reinforcement that in the African context the original imperial partition of territory led to boundaries being defined with little geographic knowledge of the human and physical conditions of what would become the borderland areas. Imperial diplomats were well aware of their lack of knowledge of the areas they partitioned. As Lord Salisbury famously remarked in 1890: “(we) have been engaged in drawing lines on maps where no white man’s foot ever trod; we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew where the mountains, rivers and lakes were.”29

4.2. Some of the original boundary agreements indicated that the boundaries would be further clarified on the ground by joint commissions. In many cases these commissions were empowered to make adjustments to the boundary that took into account greater geographic knowledge of the landscape. In the majority of these cases, it was knowledge of the physical local landscape that was most influential. The 1899 Anglo‐German boundary commission along the Northern Rhodesia‐Tanganyika boundary made numerous proposed changes to the boundary that were accepted by the two imperial governments in 1901.30 The 1927‐33 Anglo‐Belgian boundary commission was allowed to adjust the boundary along the Congo‐Zambezi watershed up to 500 metres of the ‘ideal’ watershed: “The Commissioners shall have authority, generally, to make such minor rectifications, and adjustments, to the ideal watershed as are necessary to avoid the troubles which might arise from a literal interpretation of the treaty.”31

4.3. There were instances where knowledge of the human landscape also dictated re‐alignment of boundary sections. An Anglo‐French boundary commission surveyed what is now the Burkina Faso‐Ghana boundary in 1900 and made several deviations from the boundary that had originally been defined along the 11° N parallel, east of the Black Volta river. The adjustments allocated several villages that had been found on the ‘wrong’ side of the parallel, and according to the subsequent 1904 Anglo‐French exchange of notes, two local chiefs were even compensated for loss of territory.32 A 1904 Anglo‐French commission sent to survey the boundary between British and French possessions east of the Niger river was instructed to propose any modifications so that “that the tribes belonging to the territories of Tessaoua‐Maradi and Zinder shall, as far as possible, be left to France, and those belonging to the territories of the British zone shall, as far as possible, be left to Great

29 Cited in H.S. Wilson, The Imperial Experience in Sub‐Saharan Africa Since 1870, (St. Paul: University of Minnesota Press, 1977), 95.

30 23 February 1901 Anglo‐German agreement, Brownlie 1979, 1019.

31 Article 2(1), 19 March 1927 Anglo‐Belgian ‘Brussels agreement,’ Brownlie 1979, 709.

32 18 March and 25 April 1904 Anglo‐French exchange of notes, Brownlie 1979, 282‐285.

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Britain.”33 The 1911 Anglo‐Liberian convention that paved the way for a second boundary commission to adjust the boundary in 1913‐14 began: “Whereas His Majesty the King of the United Kingdom of Great Britain and Ireland and the President of the Republic of Liberia are desirous of readjusting the boundary line between the Colony of Sierra Leone and the Republic of Liberia, provisionally laid down by the Anglo‐Liberian boundary commission of 1902‐03, so that it shall correspond, as far as possible, with natural features and tribal divisions...”

4.4. The fieldwork of the colonial boundary commissions can certainly be aligned to what Felix Driver has referred to as Geography Militant. Their cartographic ‘capture’ of the African landscape certainly was serving imperial ends, not least by seeking out potential areas for European settlement and valuable resource deposits.34 Their mapping served as the privileged information that facilitated colonial administration. However, what is instructive about their work was the engagement with the border landscape. In the pre‐GPS world where coordinates can be obtained almost instantaneously, colonial boundary mapping was based on triangulation. This meant that boundary commissions had to spend years in the field, often sitting on a single hill for days or weeks at a time in order to obtain a line of sight (or ray of a triangle). Their reports include a wide range of information about the physical and human border landscapes, from geological observations to rudimentary ethnographic notes.35

4.5. When it came to making boundaries a ‘tangible reality,’ the colonial boundary‐making practices cannot be considered the strict imposition of a boundary through a de‐ contextualised system. The practices were more reductive, concentrating the geographic focus from the small scale, imperial perspective of the continent, to the large scale realities of the local landscape. Likewise the boundary was not considered a pre‐existent creation that was simply draped along the landscape. It was something malleable, that could be bent and shaped (to a greater or lesser extent of course) according to local conditions. For example, the boundary between British and French colonial territories east of the Niger river (now the Niger‐Nigeria boundary) had been defined provisionally along a line of latitude in 1890 but was revised in 1898. In 1904 the Anglo‐French commission mentioned above was sent to survey the boundary and instructed to propose practical changes to the line:

33 8 April 1904 Anglo‐French convention, Brownlie 1979,448.

34 Donaldson 2008, 483‐485.

35 Donaldson 2008, 482.

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“It is agreed, however, that when the Commissioners of the two Governments at present engaged in delimiting the line laid down in Art. IV of the Convention of the 14th of June 1898, return home and can be consulted, the two Governments will be prepared to consider any modifications of the above frontier line which may seem desirable for the purpose of determining the line of demarcation with greater accuracy.”36 After concluding its survey, the 1904 commission then proposed an even more detailed definition of the line that was accepted by both governments, but still provided for later adjustments to the line during demarcation. “...it is agreed that the Commissioners hereafter appointed to delimit the frontier on the ground shall be guided by the description of the frontier as set forth in the Protocol. It shall, however, be permissible for them to modify the said lines of demarcation for the purposes of fixing them with greater accuracy, and to make them indispensable alterations of detail.”37

5. Moving towards 2012

5.1. Certainly the original imperial partition of Africa that had made the macro‐political decisions on the small scale geographic division of territories across Africa, were much more influenced by the inter‐imperial rather than local political contexts. Additionally, phrases such as “as far as possible” limited the influence of local conditions on boundary adjustments and territorial changes, as did the prejudices inherent in those European commissioners themselves who observed and interpreted local geography. However, the admitted lack of geographic knowledge at the small scale partition meant that subsequent boundary‐making practices had to take into account local geographical contexts in the field. The colonial boundary commissioners or surveyors could not be purely mechanistic and had to take a pragmatic approach when making a boundary a ‘tangible reality’ on the border landscape. As the above quote from the 1906 Anglo‐French protocol suggests, the practices of boundary demarcation on the ground were often “guided” rather than ‘dictated’ by the original imperial agreements rather than blindly overlaying a pre‐existent.

5.2. Some forty‐three years on from the Cairo assembly, the 2007 Declaration of Ministers in Charge of Border Issues, within the context of the AUBP, estimate that “less than a quarter of African boundaries have been delimited or demarcated.” (Article 2a) In other words, less than a quarter of African boundaries now constitute a ‘tangible reality.’ The disparity

36 8 April 1904 Anglo‐French convention, Brownlie 1979, 448.

37 9 April 1906 Anglo‐French protocol, Brownlie 1979, 451.

DRAFT Tangible reality? – Donaldson, ABORNE 2009

between what is implied in the text of the Cairo declaration and the reality of 2007 for an estimated 75% of African boundaries suggests that the boundaries inherited by African states did not constitute a tangible reality at independence and since 1964 they have not been made any more of a reality on the ground by the neighbouring states involved. Even those boundaries inherited at independence that were a ‘tangible reality’ may have degraded to such an extent that they no longer constitute a reality. In either case, it is clear that many African governments have left boundary practices in abeyance since independence.

5.3. Given the political value of territory, why have African governments left it over forty‐years to deal with their boundaries? Perhaps the shadow of the ‘zero‐sum’ game has made African governments reluctant to address poorly defined boundaries for fear of losing a portion of their perceived territorial inheritance. With the OAU having failed to establish an effective continent‐wide dispute settlement mechanism international courts and tribunals have emerged as the preferred mechanism for resolving African boundary disputes. After all, of the eleven cases before the ICJ involving disputed territorial sovereignty or land boundaries since 1967, five have involved African states. The three land sovereignty and boundary cases adjudicated by arbitral tribunals in the last decade have involved (at least one) Africa state. However, this preference for settlement through international law may be fostering that zero‐sum mindset of the territorial trap, and in turn promoting an objective approach to boundary practices.

5.4. There may be many other reasons why boundary practices have been avoided since independence but for those African states who are now addressing the challenges of the delimiting and demarcating their boundaries by 2012, the warning here is not to take a literal interpretation of the 1964 Cairo declaration with the assumption that the colonial boundaries at independence were all at a single level of clear definition; a “tangible reality.” In some cases, the colonial record may provide a clear definition that is easy to recover on the physical landscape and demarcate as a tangible reality. In other cases, there may be no clear definition of where a boundary might run. In either case, it may be useful to take a more subjective approach to boundary practices with sensitivity to the complex physical and human geography of border landscapes.