COMMENTS ON ICJ JUDGMENT (BURKINA FASO / REPUBLIC OF MALI)

Georges Abi-Saab*

First, I would like to ask a question to the audience: is there someone who does not understand French? … So, I would speak in English because those who speak French understand English. Unfortunately, we are in the era of a new empire; Mamadou Hébié has spoken on European power in an era where another empire is linguistically with us. I am really here as a « succédané », an alternative, for my good friend Judge Koroma who cannot be with us. I will start with two remarks. The one is that I was so happy of what Mamadou Hébié said and what is in his thesis1 because in an article I wrote 20 years ago where I spoke about international law and the international community: the long way to universality,2 I was saying exactly about this question, on how the European centre saw the rest of the world. Obviously at the beginning, with the fathers of international law, because of natural law they had a universalist approach but it was a very theoretical approach. And then things developped, contact became intense, etc., and here we had a very interesting dialectics

* Professor, Graduate Institute of International and Development Studies.

1 Hébié M., Les accords conclus entre les puissances coloniales et les entités politiques locales comme moyen d’acquisition de la souveraineté territoriale, Thesis 975, Graduate Institute of International and Development Studies, 2013, 709p. 2 Abi-Saab G., International Law and the International Community: The Long Road to Universality, in Essays in Honour of Wang Tieya, Dordrecht: Nijhoff, 1993, pp. 31-41.

A.A. YUSUF (ed.), African Yearbook of International Law, 121-128. © 2015A.A. African YUSUF Foundation (ed.), African for YearbookInternational of International Law, Printed Law in The, 12 3Netherlands.-130. © 2015 African Foundation for International Law, Printed in The Netherlands. 122124Georges Georges Abi-Saab Abi-Saab between theory and practice. At the beginning, as Mamadou Hébié has said, the relationship was horizontal and as such there was a kind of recognition of the other as, at least, equal as far as the subject which they were discussing. Later one, as the balance of power changed and the situation became more and more vertical, their interpretation of the same situation, followed with the theory of free circles and so forth, evolved in a way that what started by being agreements between external parties was internalized as an act of submission (acte de soumission). And I am very happy that your 709 pages thesis supports my hunch. Secondly, I would like to make a small comment on what Mutoy Mubiala has said about the Cameroon / Nigeria case (I was counsel for Nigeria in that case). I think that case illustrates two things, which is first the great artificiality of many of African frontiers. As Mutoy has said, if we take Bakassi which was the heart of the matter, although later on the compromis extended the dispute for the whole boundary from Lake Chad to the limits of the Exclusive Economic Zone, but at the beginning the dispute started with the Bakassi. Bakassi was almost inhabitated, there were villages of fishermen during the period of fishing and they were Nigerians. What happened is exactly the agreement between colonial powers first. I will come to that in a minute. Secondly, it shows a little bit an inaptitude of political leaders. We had a treaty in 1930 between Germany who held Cameroon and Great Britain which drew a line which left Bakassi to the Cameroon. And then there were many arguments about the fact that this treaty never entered into force, the world war came, etc. However, there was another agreement between the leaders of the two independent States later on. So when the case came to the Court, I am sorry to speak frankly about something, we were four (Sir Arthur Watts, Ian Brownlie, James Crawford and myself) and we all told those who asked us to represent them : you cannot jump this double limit. You can jump the first, you can make a good argument, etc., but the second will be much more difficult. They said that Gowon did it without being constitutionally empowered, that Gowon himself was a military coup leader. I think had they sought to conclude the arrangement we spoke of after the judgment, I think that African countries could have managed to get a better result and more atuned to the human realities