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Frontier Dispute (Burkina Faso/Republic of Mali)

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Frontier Dispute (Burkina Faso/Republic of Mali) COUR INTERNATIONALE DE JUSTICE RECUEIL DES ARRÊTS, AVIS CONSULTATIFS ET ORDONNANCES AFFAIRE DU DIFFÉREND FRONTALIER (BURKINA FASOIRÉPUBLIQUE DU MALI) INTERNATIONAL COURT OF JUSTICE REPORTS OF JUDGMENTS, ADVISORY OPINIONS AND ORDERS CASE CONCERNING THE FRONTIER DISPUTE (BURKINA FASO/REPUBLIC OF MALI) JUDGMENT OF 22 DECEMBER 1986 Mode officiel de citation : Diffërend frontalier, arrêt, C.I.J. Recueil 1986, p. 554. Official citation : Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 554. No de vente : 525 1 Sales number DIFFÉREND FRONTALIER (BURKINA FASO/RÉPUBLIQUE DU MALI) FRONTIER DISPUTE (BURKINA FASO/REPUBLIC OF MALI) 22 DECEMBER 1986 JUDGMENT INTERNATIONAL COURT OF JUSTICE 1986 YEAR 1986 22 December General List No. 69 22 December 1986 CASE CONCERNING THE FRONTIER DISPUTE I (BURKINA FASO/REPUBLIC OF MALI) Frontier dispute - Frontiers inherited from the colonialperiod - Applicable law - Principle of uti possidetisjuris - Nature andscope of theprinciple - Critical date - Place of colonial law (French droit d'outre-mer) - Role of equity infra legem - Form of equity which would constitute a method of interpretation of the law. Conducr of a Party - Argument from acquiescence - Unilateral art of one government -- Intention to become bound- Interpretation of the act in the light of al1 the factual circumstances and of thepossibility of becoming bound by other means - Acceptance of the application to the dispute of certain principles and rules - Rules expressiy recognized by the contesting States. Interests of a third State - Frontier ending in a tripoint - Judicial competence and exercise of the judicial junction - Distinction between the determination of a land boundary and the identification of the rules applicable to the delimitation of the continental sheif - Duty of the Chamber to rule upon the whole of the petitum. Titles and evidence -- Difficulties relating to evidence - Legislative and regula- tory texts - Value of the texts as evidence independently of their validity in the interna1 legal order - Cartographic materials - Maps as extrinsic evidence - Possibility of a map being one of the elements constituting the expression of the StateS intentions - Value of maps as evidence - Technical reliability - Neutrality of their sources - Problems raised in this case by the cartographic materials (incompatibility, defciencies) - The "colonial effectivités" as evidence of the effec- tive exercise of territorial jurisdiction - Correspondence among the colonial ad- ministrators. Equitable application of a rule of law - Local agreement not approved by the competent authorities on the international plane - Circumstances in which the agreement was reached. JUDGMENT Present : Judge BEDJAOUI,President of the Chamber ; Judges LACHS,RUDA ; Judges ad hoc LUCHAIRE,ABI-SAAB ; Registrar TORRESBERN~EZ. In the case concerning the frontier dispute, between Burkina Faso, represented by H.E. Mr. Ernest Ouedraogo, Minister for Territorial Administration and Security, as Agent, H.E. Mr. Emmanuel Salembere, Ambassador, as Co-Agent, H.E. Mr. Eduardo Jiménez de Aréchaga, formerly Professor of International Law at the University of Montevideo, as Adviser, Mr. Jean-Pierre Cot, professeur de droit international et de sociologie politi- que à l'université de Pans 1, Mr. Alain Pellet, professeur a1'U~versitéde Paris-Nord et à1'Institut d'études politiques de Paris, as Counsel and Advocates, Mr. Souleymane Diallo, Counsellor at the Embassy of Burkina Faso in Paris, as Counsel, Mr. Jean Gateaud, ingénieur général géographe (retired), as Expert, Mr. Alain Pipart, assistant a l'université de Paris-Nord, avocat a la cour d'appel de Paris, Mr. Stephen Marquardt, graduate in Law of the University of Bonn, as Advisers, Mr. Jean-Matthieu Cot, Mrs. Angélique Bouda, Mrs. Miriam Dauba, Mrs. Martine Soulier-Moroni, and the Republic of Mali, represented by H.E. Lieutenant-Colonel Abdourahmane Maiga, Minister for Territorial Administration and Basic Development, as Agent, H.E. Mr. Diango Cissoko, Minister of Justice, Keeper of the Seals, as Special Adviser, H.E. Mr. Yaya Diarra, Ambassador, Minister for Foreign Affairs and Inter- national Co-operation, as Co-Agent, FRONTIER DISPUTE (JUDGMENT) 556 Mr. René-Jean Dupuy, professeur au Collège de France, Mr. Pierre-Marie Dupuy, professeur à l'université de droit, d'économie et de sciences sociales de Paris, Mr. Raymond Ranjeva, de l'Académie malgache, président de l'établissement d'enseignement supérieur de droit, d'économie, de gestion et de sociologie de l'université de Madagascar, Mr. Jean Salmon, professeur a l'université libre de Bruxelles, as Counsel, Mr. Diadié Traoré, National Director of Cartography and Topography, as Scientific and Technical Adviser, Mr. Sinaly Coulibaly, Legal Adviser at the Ministry of Foreign Affairs and International Co-operation, as Legal Adviser, Mr. Aguibou Diarra, Head of the Frontier Section of the Ministry of Terri- torial Administration and Basic Development, Mr. Mamadou Kone, Head of the Legal Department in the Govemment Secretariat, Mr. N'Tji Laïco Traoré, Chargé d'affaires ai., Embassy of Mali in Brus- sels, Mr. Mahamadou Maiga, Administrative Officer (retired), Mr. Daba Diawara, formerly Head of the Constitutional Division of the Supreme Court as Advisers, Mr. Paul Delmond, Chief Administrative Officer for Overseas Affairs (re- tired), Mr. Drissa Sangare, Ministry of Territorial Administration and Basic De- velopment, Mr. Amadou Billy Soussoko, Ministry of Territorial Administration and Basic Development, Mr. Aliou Toure, 'National Office of Cartography and Topography, Mr. Oumar Kansa Ongoïba, Administrative Officer ; Cabinet attaché, Minis- try of Territorial Administration and Basic Development, Mrs. Maciré Yattassaye, joumalist attached to the Ministry of Territorial Administration and Basic Development, as Experts, THECHAMBER OF THE INTERNATIONALCOURT OF JUSTICEformed to deal with the case above-mentioned, composed as above, after deliberation, delivers the following Judgment : 1. By ajoint letter dated 14 October 1983, filed in the Registry of the Court on 20 October 1983, the Minister for Foreign Affairs and International Co-opera- tion of the Republic of Mali and the Minister for Foreign Affairs of the Republic FRONTIER DISPUTE (JUDGMENT) 557 of Upper Volta transmitted to the Registrar a Special Agreement which was dated 16 September 1983 and had entered into force the same day, by which Upper Volta and Mali had agreed to submit to a chamber of the Court, to be constituted pursuant to Article 26, paragraph 2, of the Statute of the Court, a dispute relating to the delimitation of part of their common frontier. 2. The text of the Special Agreement of 16 September 1983 is as follows : "The Government of the Republic of the Upper Volta and the Govern- ment of the Repiiblic of Mali, Desiring to achieve as rapidly- as -possible a settlement of the frontier dispute beiween them, based-in particular on respect for the principle of the intangibility of frontiers inherited from colonization, and to effect the defi&ive délimitation and demarcation of their cornmon frontier, Referring to the Agreement concluded between them with a view to the settlement of the frontier dispute between them, Have agreed as follows : Article I Subject of the Dispute 1. The question put before the Chamber of the International Court of Justice formed in accordance with Article II below is as follows : 'What is the line of the frontier between the Republic of the Upper Volta and the Republic of Mali in the disputed area as defined below ? ' 2. The disputed area consists of a band of territory extending from the sector Koro (Mali) Djibo (Upper Volta) up to and including the region of the Béli. Article II Formation of a Chamber of the International Court of Justice The Parties submit the question put in Article 1 to a chamber of the International Court of Justice (hereinafter called 'the Chamber') formed pursuant to Article 26, paragraph 2, of the Statute of the International Court of Justice (hereinaf ter called 'the Court') and to the provisions of the present Special Agreement. Article III Procedure 1. The Parties agree that their pleadings and their oral argument shall be presented in the French language. 2. Without prejudice to any question as to the burden of proof, the Parties request the Chamber to authorize the following procedure for the pleadings : (a) a Memorial filed by each Party not later than six months after the adoption by the Court of the Order constituting the Chamber ; (b) a Counter-Mernorial filed by each Party not later than six rnonths after exchange of the Mernorials ; (c) any other pleading which the Chamber rnay find to be necessary. 3. The pleadings submitted to the Registrar shall not be transmitted to the other Party until the Registrar has received the corresponding pleading frorn the other Party. Article IV Judgrnent of the Chamber 1. The Parties accept the Judgrnent of the Charnber given pursuant to the Special Agreement as final and binding upon them. 2. Within one year after that Judgment the Parties shall effect the demarcation of the frontier. 3. The Parties request the Charnber to nominate, in its Judgrnent, three experts to assist thern in the demarcation operation. Article V Entty into Force, Publication and Notification 1. The present Special Agreement shall corne into force on the date of its signature. 2. It shall be registered with the Secretariat of the United Nations pur- suant to Article 102 of the United Nations Charter by the more diligent Party. 3. In accordance
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