Frontier Dispute (Burkina Faso/Niger)
Overview of the case
On 20 July 2010, Burkina Faso and Niger jointly submitted a frontier dispute between them to the Court, pursuant to a Special Agreement signed in Niamey on 24 February 2009 and which entered into force on 20 November 2009. In Article 2 of the Special Agreement, the Court was requested to determine the course of the boundary between the two countries in the sector from the astronomic marker of Tong-Tong to the beginning of the Botou bend and to place on record the Parties’ agreement [“leur entente”] on the results of the work of the Joint Technical Commission on Demarcation of the boundary.
In its Judgment of 16 April 2013, the Court indicated that, when it is seised on the basis of a Special Agreement, any request made by a party in its final submissions can fall within the jurisdiction of the Court only if it remains within the limits defined by the provisions of that Special Agreement. However, in the opinion of the Court, the request made by Burkina Faso in points 1 and 3 of its final submissions did not exactly correspond to the terms of the Special Agreement, since that State did not request the Court to “place on record the Parties’ agreement” (“leur entente”) regarding the delimitation of the frontier in the two demarcated sectors, but rather to delimit itself the frontier according to a line that corresponds to the conclusions of the Joint Technical Commission. Although the Court has the power to interpret the final submissions of the Parties in such a way as to maintain them within the limits of its jurisdiction under the Special Agreement, that is not, however, sufficient to entertain such a request : the object of that request must also fall within the Court’s judicial function, which is to decide, in accordance with international law, such disputes as are submitted to it. However, in the case in question, neither of the Parties had ever claimed that a dispute continued to exist between them concerning the delimitation of the frontier in the two sectors in question on the date when the proceedings were instituted — nor that such a dispute had subsequently arisen. Accordingly, the Court considered that Burkina Faso’s request exceeded the limits of its judicial function.
The Court then turned to the dispute actually submitted to it. It observed that Article 6 of the Special Agreement, entitled “Applicable Law”, highlighted, amongst the rules of international law applicable to the dispute, “the principle of the intangibility of boundaries inherited from colonization and the Agreement of 28 March 1987”. It noted that the first two Articles of that Agreement specify the acts and documents of the French colonial administration which must be used to determine the delimitation line that existed when the two countries gained independence. It observed in that connection that it follows from the 1987 Agreement that the Arrêté of 31 August 1927 adopted by the Governor-General ad interim of French West Africa with a view to “fixing the boundaries of the colonies of Upper Volta and Niger”, as clarified by its Erratum of 5 October 1927, is the instrument to be applied for the delimitation of the boundary. It further observed that the 1987 Agreement provides for the possibility of “the Arrêté and Erratum not suffic[ing]” and establishes that, in that event, “the course shall be that shown on the 1:200,000-scale map of the Institut géographique national de France, 1960 edition”.
The Court was of the opinion that a straight line connecting the Tong-Tong and Tao astronomic markers should be regarded as constituting the frontier between Burkina Faso and Niger in the sector in question, since the colonial administration officials interpreted the Arrêté in that manner.
The Court further noted that it is not possible to determine from the Arrêté how to connect the Tao astronomic marker to “the River Sirba at Bossébangou”. Recourse must therefore be had to the line appearing on the 1960 map of the Institut géographique national de France (IGN). Moreover, the Court declared that it could not uphold Niger’s requests that the said line be shifted slightly at the level of the localities of Petelkolé and Oussaltane, on the ground that these were purportedly administered by Niger during the colonial period. According to the Court, once it had been concluded that the Arrêté was insufficient, and in so far as it was insufficient, the effectivités could no longer play a role in the case.
The Court further considered that, according to the description in the Arrêté, the frontier line, after reaching the median line of the River Sirba while heading towards Bossébangou, at the point called SB on the sketch-map attached to the Judgment, follows that line upstream until its intersection with the IGN line, at the point called point A on the sketch-map attached to the Judgment. From that point, since the Arrêté does not suffice to determine precisely the course of the frontier line, that line follows the IGN line, turning up towards the north-west until the point, called point B on the sketch-map attached to the Judgment, where the IGN line markedly changes direction, turning due south in a straight line. As this turning point B is situated some 200 m to the east of the meridian which passes through the intersection of the Say parallel with the River Sirba, the IGN line does not cut the River Sirba at the Say parallel. However — the Court noted — the Arrêté expressly requires that the boundary line cut the River Sirba at that parallel. The frontier line must therefore depart from the IGN line as from point B and, instead of turning there, continue due west in a straight line until the point, called point C on the sketch-map attached to the Judgment, where it reaches the meridian which passes through the intersection of the Say parallel with the right bank of the River Sirba. According to the description in the Erratum, the frontier line then runs southwards along that meridian until the said intersection, at the point called point I on the sketch-map attached to the Judgment.
The Court finally observed that, according to the Arrêté, “[f]rom that point the frontier, following an east-south-east direction, continues in a straight line up to a point located 1,200 m to the west of the village of Tchenguiliba”. It considered that the Arrêté is precise in this section of the frontier, in that it establishes that the frontier line is a straight-line segment between the intersection of the Say parallel with the Sirba and the point located 1,200 m to the west of the village of Tchenguiliba, which marks the start of the southern section of the already demarcated portion of the frontier.
The Court decided that, having regard to the circumstances of the case, it would nominate at a later date, by means of an Order, the experts requested by the Parties in Article 7, paragraph 4, of the Special Agreement to assist them in the demarcation of their frontier in the area in dispute. By an Order of 12 July 2013, the Court nominated the said three experts. The case was thus completed and was removed from the Court’s List.
This overview is provided for information only and in no way involves the responsibility of the Court.