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INTERNATIONAL COURT OF JUSTICE
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt. The Hague
Telex 32323
Communiqu~
uno(ficia/
;; for fmmediata,ral~ase
+A--
* %,
('. ' @ ;> *7 ' No. 86/18
22 December 1986
Frontier D~sDu~~(Burkina ~aso/Mali)
Judgment of the Chamber
The following information is communlcated to the Press by the
Regist ry of the Interriational Court of Justice :
Today, 22 December 1986, the Chamber constituted by the
Lnternational Court of Justice in the case of the Frontier Dispute
between Burkina Faso and the Republic of Mali, delivered its
Judgment. It unanimoiisly adopted the line of the frontier in the area
in dispute between the two States.
(For this front ier line, see Annex 2, map 2. )
The Ghirmber was c2omposed as follows:
Presidcnt, Judge Mohammed Bedjsioîii; Judgeo Manfred Lachs and
José Maria Ruda, Judges ad hoc Françcis Luchairc and Georges bbi-~Saab.
Operative part of the Chairiber's Judgment
"Tm CHAMBER,
Unanimously ,
A. mat the frontier line becween Burkina Faso and the KepcbJic
of Mali in the disputed area, as de£ined In the Spcial Agreement
concluden on 16 September 1983 between those two States, is as
follows : 1. From a point with the geographical CO-ordinates 1" 59' 01" W
and 14" 24' 40" N (point A), the line runs in a northerly direction
following the broken line of small crosses appearing on the map of
West Africa on the scale 1:200,000 published by the French
Institut géographique national (IGN) (hereinafter referred to as "the
IGN line") as far as the point with the geographical CO-ordinates
1" 58' 49" W and 14" 28' 30" N (point B).
2. At point B, the line turns eastwards and intersects the track
connecting Dionouga and Diguel at approximately 7.5 kilometres £rom
Dionouga at a point with the geographical CO-ordinates 1" 54' 24" W
and 14" 29' 20" N (point Cl.
3. From point C, the line runs approximately 2 kilometres to the
south of the villages of Kounia and Oukoulourou, passing through the
point with the geographical CO-ordinates 1" 46' 38" W and
14" 28' 54" N (point DI, and the point with the CO-ordinates
1" 40' 40" W and 14" 30' 03" N (point E).
4. From point E, the line continues straight as far as a point
with the geographical CO-ordinates 1" 19' 05" W and 14" 43' 45" N
(point FI, situated approximately 2.6 kilometres to the south of the
pool of Toussougou.
5. From point F, the line continues straight as far as the point
with the geographical CO-ordinates 1" 05' 34" W and 14" 47' 04" N
(point G) situated on the West bank of the pool of Soum, which it
crosses in a general west-east direction and divides equally between
the two States; it then turns in a generally northlnorth-easterly
direction to rejoin the IGN line at the point with the geographical
CO-ordinates 0" 43' 29" W and 15" 05' 00" N (point H).
6. From point H, the line follows the IGN line as far as the
point with the geographical CO-ordinates 0" 26' 35" W and
15" 05' 00" N (point 1); from there it turns towards the south-east
and continues straight as far as point J defined below.
7. Points J and K, the geographical CO-ordinates of which will be
determined by the Parties with the assistance of the experts nominated
pursuant to Article IV of the Special Agreement, fulfil three
conditions: they are situated on the same parallel of latitude;
point J lies on the West bank of the pool of In Abao and point K on
the east bank of the pool; the line drawn between them will result in
dividing the area of the pool equally between the Parties. 8. At point K the line turns towards the north-east and continues
straight as far as the point with the geographical CO-ordinates
0" 14' 44" Wand 15" 04' 42" N (point L), and, from that point,
continues straight to a point with the geographical CO-ordinates
0" 14' 39" E and 14" 54' 48" N (point Ml, situated approximately
3 kilometres to the north of the Kabia ford.
B. That the Chamber will at a later date, by Order, nominate
three experts in accordance with Article IV, paragraph 3, of the
Special Agreement of 16 September 1983."
Judges ad hoc François Luchaire and Georges Abi-Saab appended
separate Opinions to the Judgment.
In these Opinions the Judges concerned state and explain the
positions they adopted in regard to certain points dealt with in the
Judgment. A brief summary of these Opinions may be found in Annex 1
hereto.
The printed text of the Judgment will be available in a feu
weeks' time. (Orders and enquiries should be addressed to the
Distribution and Sales Section, Office of the United Nations,
1211 Geneva 10; the Sales Section, United Nations, New York,
N.Y. 10017; or any specialized bookshop.)
An analysis of the Judgment is attached. This aaalysis, prepared
by the Registry for the use of the Press, In no way involves the
responsibility of the Chamber. It cannot be quoted against the text
of the Judgment, of which it does not constitute an interpretation.1. Procedure (paras. 1-15)
The Chariibcr reca-;ritulates Lhe successive phases of tlie procedure
as from the notification to the Kegiscrnr of the Special Agreement
concluded on 16 Septenber 1983 betwec?n the ReyubPic oE Upper Volta
(known as Burkina Faso slnce 4 Aug~çc 1994) and the Republic of Mali,
by which those iwo Sta-ces agreecl to subiii3L to a chaniber of the Court a
dispute relating ta rhc iieiiniita~ion of ci pari 01 tl-ieir common
front ier .
II. The task of the Chamber (paras. 16-18)
The Chamber's task is to indïcafe the line of the frontier
between Burkina Faso and the Republic of Mali in the disputed area
which is defined by Article 1 of the Special Agreement as consisting
of "a band of territory extending from the sectzor Koro (Mali) Djibo
(Upper Volta) up to and including the reg ion of the 13él.i". Both
States have indicated, in their çubmissions to the Chamber, the
frontier line which each of them considers to be well--founded in law.
These lines are show on sketch-map No. 1 in the Judgment.
III. Rules applicable to the case. Source of the rights claimed by the
Parties (paras. 19-30)
1. The principle of the intangi-bility of frontiers inherited from
colonization (para. 19)
The Judgment considers the question of the rules applicable to
the case, and seeks to ascertajn the source oL the rights claimed by
the Parties. It begins by noting Lhat thc characteristic feature of
the legal context of thz Erontier detèrmination to be undertaken by
the Chamber is that both States involved derive their existence from
the process of decolonization which has been unfolding in Africa
during the past 30 yearç: it can bc said that Burkina Faso
corresponds to the colony cf Upper Volt<* and the Republic of Mali to
the colony of Sudan (fsrinerly French Sudan). Ir1 the preamble to their
Special Agreement, the Parties stated that the set!:leruent of the
dispute should be "baçed in particular on ïespec~ for the principle of
the intangibility of frontiers inherited frum coLonization", which
recalls the princip le expressly statcd in reso lution A(~;~l/~cs.l6( 1)
adopted in Cairo in July 1964 at the firçt çummit conference lollowing
the creation of the Orgariization of Afri csn Unit y, wtiereby al1 member
States "solennly ... p?edge themselves Lo respect fhe frontiers
existing on their achj evemen~ of nat? oital tnd<.penclencew .
2. The principle oE uti possidetis juriç (~arnç. 20-26)
In these circiluistances, ttie (,%aiubei- canno L disrega~d the
principle of uti po s-idetis juri-, Lhc api>lication of which gives rise
to this respect ior intangibility of fron~iers. ié emyhasizes the
general scope of clle priilciple Ln matcers of decolnnizatiori and Its
exceptional ...exceptional importance for the African continerit, incltiding the two
Parties to this case. Although this principle was invoked for the
first time in Spanish America, it is not a rule pestaining solely to
one specific system of international law. It iç a yrinciple of
general scope, logically connected with the phenomenon of the
obtaining of independence, whercver ir occurs. Jts obvious purpose is
to prevent the independence and stabllity of new States beiug
endangered by fratricidal struggles provoked by the challenging of
frontiers following the withdrawal of the administeririg power. The
fact that the new African States have respected the territorial
status quo which existed when the? obtained independenee must
therefore be seen not as a mere praetice but as the application in
Africa of a rule of general scope which is firmly established in
matters of decolonization; and the Çnamber does not find it necessary
to demonstrate this for the purposes of the case.
The principle of uti possideti s juris accords pre-eminence to
legal title over effective possession as a basis of sovereignty. Its
primary aim is to secure respect for the territorial boundaries which
existed at the time wlien indeperidence was achieved. mien those
boundaries were no more than delimitations between different
administrative divisions or colonies al1 subject to the same
sovereign, the application of this principle resulted in their being
transf ormed into internat ional front iers , and thîs is wha t occurred
with the States Parties to the prcsent case, which both took shape
witliin the terri tories of French West Africa. Miere siich boundaries
already had the status of international frontiers at the time of
decolonization, the obligation to respect pre-existing international
frontiers derives frorn a general rule of international Iaw relating to
State succession. The many solem affirmations of the intangibility
of frontiers, made by African statesmen or by organs of the OAU,
should therefore be tiiken as references to a principle already in
existence, not as affirmations seekfng to consecrare il new principle
or to extend to Africa a ruls yre:riously ~?plica:>Lt? only in another
continent.
This principle T'F uti ~sid et--- 1.- appears ta ronC'1ic.t outright
with the rig-t of peuples to siif-determination. In fact, howtrves,
the maintenance of the terrltrcrtal s-"-eis_qr~v- in Afrira 1s often seen
as tlie wisest course. The esst ntial requircment of stabiLlty in order
ta survive, to deveiop and gr,ndr~dly to coqsui idùte Lheir ndepen~ence
in ali fields, han Pnciure l Afric:+n States tu consent ts the
inairitenance of co 1onl#.r L hnund 37tes c2r front iers , and to take account
of this when interpreting ~he princiyle of self-dclerrnination of
peoples. If the principle of u-tQosi---ditis *-- has kepl. itc; plece arsong
the most important le,~,al principlec, tl~is is by a deiiberatc choic2 on
the part of African States,
3. The ro3.e o--eqtiity (par:,:. 27-28]
The Ch;imbcr then coasiders r:her?icr- it :s ~)ossible, in chi~ case,
to irivokeequity, con~er~ting w'rtlch c:ie two t'drscie.~ have advanced
con£ lictin): views. Go 0i1:;l.y t,ir (2is;aht.r :.C1.3.t: der ,<il.
ex ----uo et boiio, S~~>CP tiie P,,i t$es hnvr. r:i$:7 , ;iitis+ed d!t io {!a sa. It will, however, have regard to equify 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. Mow the Cilamber will, in
practice, approach itç consideratioa of this form of equity will
become clear £rom its application of the principles and rules which it
finds to be applicable.
4. French colonial lâw ("droit d'outre-mer") (paras. 29-30)
The Parties agree that the deiinitation of the frontier line also
has to be appraised in the light of French "droit d'outre-mer". The
line to be determined by the Chamber as Deing that which existed in
1959-1960 was originally no more than an administrative boundary
dividing two former French overseas territories ("territoires
d'outre-mer") and, as such, was necessarily defined at that time not
according to international law, but according - to the French
legislation applicable to such territories. Here the Chamber explains
that international law - and therefore the principle of
uti possidetis - applies to the new State as from its accession to
independence, but has no retroactive effect. It freezes the
territorial title. International law does not ef fect any renvoi to
the law of the colonizing State. If the latter law has any part to
play, it is as one factual element among others, or as evidence
indicative of the "colonial heritage" at the critical date.
IV. The development of administrative organization (paras. 31-33)
The Judgment briefly reviews how territorial administration was
organized in French West Africa - to which both Partiss previously
belonge- - with its hierarchy of administrative unitç (colonies,
cercles, subdivisions, cantons, villages), before recapitulating the
history of both the colonies concerned since 1919, in order to
determine what, for eacb of the two Parties, was the colonial heritage
to which the uti possidetis was to apply. Mali gained its
independence in 1960 under the name of the Federation of Mali,
succeeding the Sudanese Republic which had emerged, in 1959, £rom an
overseas territory called the French Sudan. The history of
Upper Volta is more complicated. It came into being in 1919 but was
then abolished in 1932, and again reconstituted by a law of
4 September 1947, which stated that the boundaries of "the
re-established territory of Upper Volta" were to De "those of the
former colony of Upper Volta on 5 September 1932". It was this
reconstituted Upper Volta which subsequently obtained independence in
1960 and took the name of Burkina Faso in 1984. In the present case,
therefore, the problem is to ascertain wliat frontier was inherited
from the French administration; more precisely, to ascertain what, in
the disputed area, was the frontier which existed in 1959-1960 between
the territoires d'outre-mer of Sudan and Upper Volta. The Parties
both agree that when they became independent there was a definite
frontier, and they accept that no modification took place in the
disputed area between January 1959 and August 1960, or has taken place
since.
V. The.. .V. The dispute between the Parties and the preliminary question
of possible acquiescence by Mali (paras. 34-43)
Burkina Faso argues that Mali accepted as binding the solution to
the dispute outlined by the OAUMediation Commission, which sat in
1975. If this argument from acquiescence were well-founded, it would
make it unnecessary to endeavour to estab?:Lsh the frontier inherited
from the colonial period.
The Chamber therefore considers whether Mali did acquiesce, as
Burkina Faso claims, in the solution outlined by the Commission,
although the latter never in fact completed its work. It begins by
considering the element of acquiescence which, according to
Burkina Faso, is found in the declaration made by the Head of State of
Mali on 11 April 1975, whereby Mali allegedly 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. Upon consideration, and
taking account of the jurisprudence of the Court, the Chamber finds
that 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 goes on to consider the principles of delimitation
approved by the Legal Sub-Commlssion which, according to Burkina Faso,
Mali agreed should be taken into consideration in delimiting the
frontier in the disputed area. Having weighed the arguments of the
Parties, 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 may be construed to reflect a
specific position towards, or indeed to signify acquiescence in, the
principles held by the Legal Sub-Commission to be applicable to the
resolution of the dispute. If those principles are applicable as
elements of law, they remain so whatever MaLi's attirude. Tlie
situation would only be otherwlse if the two Parties had asked the
Chamber to take account of them or had given tl-ierna epecial place in
the Special Agreement as "rules expressly rftcognized by the contesting
States" (Art. 38, pars. 1 (a) of the Stntut~), ueither of which was
the case.
VI. Prelirninary question: -h.- fixing of the -riqoint (paras. 44-50)
The Chamber disposes or 4 further preljminary question,
concerning its powers in the uatter of fixing the tripoint which torms
the easterrunost point of the frontier between the Parties. Thefr
views on this question canflict. Mali claJms that the determination
of the tripoint Niger-Mali-Burkina Faso cannot be dfected by the two
Parties without Niger's agreement, and cannok be determined by the
Chamber either; and Burkina Faso constders tnat the Chamber must,
pursuant to the Special hgreemeni, reach -1decision on the position ui
the tripoint. As for ils jurfsdiction En ti-ll,;matttr, the Chamber
finds it to be clear frorn the wotdirig ~rt tiie Speçial Agreement thst
the comrnon intentlon of the Parties wir, 31at it stiobld Pndicatc the
frcrntier line throilghout the wble of t'.cifiisputed area. ln addition,
it considers that its juriçdiction is nor restricted s-imply because
tkie end-point df the iroim~ier lies unz the front4er of a third State
not a parLy to the proccea:nqç. Tne rights of the neighbouring Çtate,Niger, are in any event safeguarded by the operation of Article 59 of
the Statute of the Court. Regarding the question whether
considerations relating to the need to safeguard the interests of the
third State concerned would require the Chamber to refrain from
exercising its jurisdiction to determine the whole course of the line,
this presupposes, according to the Chamber, that the legal interests
of that State would not only be affected by its decision, but would
form the very subject-matter of thaé decision. This is not so in this
case, and the Chamber is accordingly required to determine how far the
frontier inherited from the colonizing State extends. This is, for
the Chamber, not a matter so much of defining a tripoint as of
indicating where the easternmost point of the frontier lies, the point
where the frontier ceases to divide the territories of Burkina Faso .
and the Republic of Mali.
VII. Evidence relied on by the Parties (paras. 51-65)
The Parties have relied upon different types of evidence to give
support to their arguments.
1. They have referred to legislative and regulative texts or
administrative documents, of which the basic document is the French
law of 4 September 1947 "for the re-establishment of the territory of
Upper Volta", providing that the boundaries of the re-established
territory were to be "those of the former colony of Upper Volta on
5 September 1932". At the time of independence in 1960, those
boundaries were the same as those which had existed on
5 September 1932. However, the texts and documents produced in
evidence contain no complete description of the course of the boundary
between French Sudan and Upper Volta during the two periods when these
colonies CO-existed (1919-1932 and 1947-1960). They are limited in
scope, and their legal force or the correct interpretation of them are
matters of dispute between the Parties.
2. The two States have also produced an abundant and varied
collection of car tographic materiàls, and have discussed in
considerable detail the question oFthe probative force of the maps
and the respective legal force of the various kinds of evidence. The
Chamber notes that, in frontier delimitations, maps merely constitute
information, and never constitute territorial titles in themselves
alone. They are merely extrinsic evidence which may be used, along
with other evidence, to establish the real facts. Thelr value depends
on théir technical reliability and their neutrality in relation to the
dispute and the Parties to that dispute; they cannot effect any
reversa1 of the onus of proof.
When considering the maps produced in this case, the Chamber
notes that not one of the maps availablc to it can provlde a direct
officia1 illustration of the words contained in four essential texts
(cf. Section VI11 below) even though it was clear from their wording
that two of those texts were intended to be accompanied by maps.
Although the Chamber has been presented witll a considerable body of
maps, sketches and drawings for a region that is nevertheless
described as partly unknown, no indisputable frontier line can be
discerned from these documents. Particular vigilance is therefore
required in examining the file of maps. Two of the maps produced appear to be of special significance.
These are the 1:500,000 scale map of the colonies of French West
Africa, 1925 edition, known as the Blondel la Rougery map, and the
1:200,000 scale map of West Africa, issued by the French
Institut géographique national (IGN) and originally published between
1958 and 1960. With regard to the first of these maps, the Chamber
considers that the administrative boundaries shown on it do not in
themselves possess any particular authority. With regard to the
second map, the Chamber finds that, since it was drawn up by a body
which was neutral towards the Parties, although it does not possess
the status of a legal title, it is a visual portrayal both of the
available texts and of information obtained on the ground. Where
other evidence is lacking or is not sufficient to show an exact line,
the probative force of the IGN map must be viewed as compelling.
3. Among the evidence to be taken into consideration, the Parties
invoke the "colonial effectivités", in other words, the conduct of the
administrative authorities as proof of the effective exercise of
territorial jurisdiction in the region during the colonial period.
The role played by such effectivités is cornplex, and the Chamber has
to make a careful evaluation of their legal force in each particular
instance.
The Chamber emphnsizes that the present case 1s a decidedly
unusual one as concerns the facts to be proven or the evidence to be
produced. Although t'he Parties have provided as ccmplete a case file
as possible, the Cham'ber cannot be certain of decitint: the case on the
basis of £uLl knowledge of the facts, The case fi1.e stiows
inconsistencies and s'hortco~irigs. The systematlc application of the
rule coricerriing the burden of ?roof cannot alw,iys provide .i solution,
and the rêjection of <any partieular argument: for lack ~f proof i s not
su£ ficient to warrant uphnlClng, the coritrsry argument.
VIFI. Legislative and-ulative titres and administrative documents
invoked by the Parties : their applicabl li ty trb the determination -
of tlie frc>ntier~a~,is. 66--105) and the ytiestion of
their im~lementation (~aras. 106-111)- --
The Chamber deals first with the legisla~ive and regulative
ti tles and the administrative documents invoked by the Parties, aiid
considers what weight to attach to each of them, for the purpose of
indlcating the course of the line in the sector co which they relate.
The Judgmenf presents these texts iri chroriological order:
- Order of 31 D~cenDer 1922 for the remk? ,.izat I(.n of the Tiqbuktu
region. ---l%e Parties rigrec in recogni~lr g the valiility and
pertinence oE this texL- Order dated 31 August 1927, issued by the Governor-General
ad interim of French West Africa, relating to the boundaries of the
colonies of Niger and Upper Volta; this Order was amended by an
erratum dated 5 October 1927. The Parties both treat this téxt as
relevant in so far as it refers to the tripoint discussed above (cf.
Section VI). They disagree, however, regarding its validity; Mali
claims that the Order and the erratum are invalidated by a factual
error relating to the location of the heights of N'Gouma, so that
Burkina Faso may not properly rely upon them. The Chamber
emphasizes that, in the present proceedings, the Order and erratum
have only evidentiary value in respect of the location of the
end-point of the boundary between French Sudan and Upper Volta. The
Chamber considers it unnecessary to endeavour to determine the legal
validity of the text, its value ^s evidence - which is accepted by
Mali - being a separate question.
- -5 September 1932, abolishing the colony of Upper Volta
and annexing its component cercles either to French Sudan or to
Niger (cf. sketch map No. 2 in the Judgment).
-Exchange of letters which took place in 1935: this correspondence
consists of letter 191 CM2 of 19 February 1935 addressed to the
Lieutenant-Governors of Niger and French Sudan by the
Governor-General of French West Africa, and the reply from the
Lieutenant-Governor of the French Sudan dated 3 June 1935. The
Governor-General suggested a description of the boundary between
Niger and the French Sudan, to which the Lieutenant-Governor of the
Sudan replied by proposing only one amendment. This description
appears to correspond to the line shown on the Blondel la Rougery
map (see sketch map No. 3 in the Judgment). The draft description
was not followed up, but its interpretation is a matter of dispute
between the Parties, the issue being whether the proposed
description did no more than describe an existing boundary (the
"declaratory" theory of Burkina Faso) or whether the letter
reflected an intention to define the legal boundary de novo (the
"modifying" theory argued by Mali). The Chamber concludes that the
definition of the boundary given in letter 191 CM2 corresponded, in
the minds both of the Governor-General and of al1 the administrators
who were consulted, to the de facto situation.
- Order No. 2728 AP issued on 27 November 1935 by the Governor-General
ad interim of French West Africa for the delimitation of the cercles
of Bafoulabé, Bamako and Mopti (French Sudan). The last-named
cercle bordered on the cercle of Ouahigouya, which was then a part
of French Sudan and which reverted to Upper Volta as £rom 1947.
This boundary was again to form the boundary between the territories
of Upper Volta and Sudan until independence - hence its
significance. The text describes the eastern boundary of the
Sudanese cercle of Mopti as being "a line running markedly
north-east, leaving to the cercle of Mopti the villages of Yoro,
Dioulouna, Oukoulou, Agoulourou, Koubo ...". The Parties do not
agree on the legal significance to be ascribed to this provision.
They disagree as to whether the line indicated in the text, which
"leaves" the villages in question to the cercle of Mopti, had the
effect of attributing to that cercle villages which had previously
been part of another cercle (Burkina Faso's contention) or whether,
this definition of the line rather implied that these villages
already belonged to the cercle of Mopti (Mali's contention). The Chamber considers whether the actual text of Order 2728 AF, and
the administrative context in which it was issued, provide any
indication of the scope which the Governor-General ad interim
intended it to have. It concludes that there is at least a
presumption that Ortler 2728 AP had neither the aim nor the result of
modifying the boundi3ries which existed in 1935 between the Sudanese
cercles of Mopti and Ouahigouya (no modification having been made
between 1932 and 1935). The Chamber then enquires whether the
content of Order 2728 AP operates to reverse or to confirm this
presumption. It coiicludes £rom a detailed study of the documentary
and cartographic ev:tdence from which these villages can be located
that this material does not overturn the presumption that
Order 2728 AP was declaratory in nature.
In the course of its demonstration, the Chamber explains that the
part of the frontier whose determination calls for the scope of
Order 2728 AP to be ascertained has been called in the Judgment "the
sector of the four villages". The words "four villages" refer to
the villages of Dioiilouna (which can be identified as the village
which now goes under the name of Dionouga), Oukoulou, Agoulourou and
Koubo (the village of Yoro, also mentioned in the Judgment, was
definitely part of the cercle of Mopti, and is not in issue).
The Chamber cons~tders what relationship can be established among
the pieces of information provided by the various texts of which it
has to make use, and reaches a number of conclusions. Xt notes that
on certain points the sources agree and bear ore another out, but that
in some respects, in view of the shortcomings of the maps at the time,
they tend to conflict (see sketch map No. 4 in the ,Judgment).
IX. Determination of the frontier in the disputed area (paras. 13.2-1.74)
----- -
-- The end-point in the w.-t (paras. 112-113)
The Chamber begiris by fixing the end-point of the Erontier
already established between the Parties by agreement, in other words
the western extremity of the disputed area. They have not clearly
indicated this point, but the Chamber considers that it can
justifiably conclude that both Parties accept the frontier line ~hown
on the 1:200,OOO scale map of West Airica published by the IGN to the
south of the point with the geographical CO-ordinates 1" 59' 01" W and
14" 24' 40" N (point A on the map annexeu to the Judgment). It is
from that point that the Parties are requesting it to Lndlcate the
Line of their comrnon frontier in an easeeely direction. 2. Villages and farming hamlets (paras. 114-117)
The Chamber considers it necessary to examine the meaning to be
ascribed to the word "village", since the regulative texts which fix
the district boundaries generally refer merely to the villages
comprising them, without further geographical clarification. It
frequently happens that the inhabitants of a village cultivate land
some distance away, taking up residence in "farming hamlets" forming
dependencies of the village. The Chamber has to decide whether, for
the purpose of the delimitation which it is asked to effect, the
farming hamlets form part of the villages on which they depend. It is
not persuaded that, when a village was a feature used to define the
composition of a wider administrative entity, these farming hamlets
were always taken into consideration in drawing the boundary of such
an entity. It is only when it has examined al1 the available
information relating to the extent of a particular village that it
will be able to ascertain whether a particular piece of land is to be
treated as part of that village despite its lack of a connection with
it, or as a satellite hamlet which does not fa11 within the boundaries
of the village.
3. The sector of the four villages (paras. 118-126)
Since Order 2728 AP defines the boundary between the cercles of
Mopti and Ouahigouya in terms of the villages "left" to the cercle of
Mopti, the Chamber identifies the villages in question and ascertains
their territorial extent. It finds that Burkina Faso does not contest
the Malian character of the village of Yoro, and that there is no
disagreement regarding the first part of the frontier, which runs in a
northerly direction from point A as far as the point with the
CO-ordinates 1" 58' 49" W and 14" 28' 30" N (point B).
As for Dionouga, the Parties agree in identifying it with the
village of Dioulouna mentioned in the Order. The Chamber considers
that it can conclude from the information available to it, especially
in relation to the track-laying operations undertaken on the orders of
the administrators concerned, these being a significant element of the
"effectivités", that the administrative boundary at the relevant time
during the colonial period intersected the track connecting this
village to the nearbi village of Digue1 at a distance of approximately
7.5 kilometres to the south of Dionouga. The frontier line therefore
does likewise, at the point with the CO-ordinates 1" 54' 24" W and
14" 29' 20" N (point C).
As for the villages of Oukoulou and Agoulourou, mentioned in
Order 2728 AP, the Chamber emphasizes that it is quite irrelevant
whether these villages are now in existence or not. The fact that
they may have disappeared has no impact on the boundary which was
defined at the time. It may however be noted that the positions of
the villages of Kounia and Oukoulourou correspond to those of the two
villages referred to in the Order.
As regards Koubo, about which there is some confusion of
nomenclature, the information available to the Chamber is not
sufficient to establish with certainty whether it is the village of
Kobou or the hamlet of Kobo which corresponds to the village of Koubo
mentioned in the Order. But since the hamlet lies only 4 kilometres
from the village, the Chamber considers it reasonable to treat them as
a whole, drawing the frontier in such a way as to leave both of them
to Mali. The Chamber therefore considers that a line drawn at û dfstance
of approximately 2 kilometres to the south of the present-day villages
of Kounia and Okoulourou corresponds to the boundary described in
Order 2728 Al?. This I.ine runs through the point with the CO-ordinates
1" 46' 38" W and 14" 28' 54" N (point D) and through the point with
the CO-ordinates 1" 40' 40" W and 14" 30' 03" N (point E).
4. The pool of Toussougou, the pocl of Kétiouaire and the pool of
-oum (paras. 1.27-150)
The line describeld in Order 2728 AP of 1935 extends in a
"markedly north-east" direction, "passing to the south of the pool. of
Toussougou and culminating in a point loêated to the east of the pool
of Kétiouaire". There is a problem as to the whereabouts of these
pools, since none of t:he maps contenporary with the Order whjch the
Parties have presented to the Chamber show any pools bearing rhese
names. However, both Parties admit that there is at least one pool in
the region of the village of Toussougou, whfle offering as cvidence
only maps which contradict one another. The question therefcre arises
whether the pool of Féto Maraboulé, which lies to the south-west of
the village and has only recently been shown on the maps, is an
integral part of this pool. The Chamber's opinion is that the two
pools remain separate, even during the rainy season, and that the pool
of Féto Maraboulé is ni02 to be identified with the pool of Toiionougou
referred to in the Order, which is smaller and lies close to the
village with the same name. Moreover, an identification of the two
pools would have an impact on the course of the line. The Chamber,
which has to interpret. the reference to the pool of Toussougou in
Order 2728 AP, considers that the interpretation to be made musé be
such as to minimize the margin of error involved in defining the
tripoint at which, according to letter 191 CM2, the cercles of Mopti,
Ouahigouya and Dori meet. Beforc defining the course of the line in
relation to the pool of Toussougou, the Chamber attempts to locate the
pool of Kétioualre, near which tkie boundary described iii Order 2728 AP
also ran.
In Order 2728 AP, tiie pool of Kétioi~aire cu>nstitutcs arr important
element of the boundary therein deflned. It therefore has to he
ascertained whether, 1.n 1935, there waa a pool Lyanp, ilia "markedly
north-east" direction in relation to a point situated "T-o thc south of
the pool of Toussougou", close to the trtpoint of tl:e ---rcles of
Mopti, Gourma-Rliarous and Cori, and te th~ wc ;t of it. AErer lue
appraisal of al1 the information availsble tr, it, the Chantber is
unable to locate the pool of Kétfouafre. Nor dcir?ç it ct>aisider any
identification possible between the pool of Két Louaire ad the pool of
Çoum, which is situated some kllometres to the east/north--east of the
pool of Toussougou ancl close to the meiltj~ig-point, not of the three
cercles mentioned abowe, but of the ---rcles of Yopti, Ouahigouya and
Dori.
The Chamber remains persuaded by the zasr iile that the pool ~f
Çoum is a irontier pool, but flnds no j tr!tcat-ici-isdsting from the
colonial period £rom rhich the ;trie :ciill:lbe sald tcr rein iAi.ther to the
north or to the zoiith i3f che pool, î,r te Clivirln it. Tilts bcirq sa,
the Cilamber ilotes ti~al: sltliough it h:is r~ctbivecl i:<,~rcnJare frorn tile
Parties to ruake its OIJR Erec choice of rri ap?>r-pytiate Erontier, it hac
nevert:ieless the task ui drakring a prec:oc lincs, antL f~r- tii.-ltpurpose
can .~ppeal eo the equity infrd legen wl3;ch the P,lrtics hnve themselvesacknowledged to be applicable in the present case. In order to
achieve an equitable solution along these lines, on the basis of the
applicable law, the Chamber finds that account must be taken, in
particular, of the circumstances in which the commandants of two
adjacent cercles, one in Mali and the other in Upper Volta, recognized
in a 1965 agreement, not endorsed by the competent authorities, that
the pool should be shared. It concludes that the pool of Soum must be
divided in two in an equitable manner. The line should therefore
cross the pool in such a way as to divide its maximum area during the
rainy season equally between the two States.
The Chamber notes that this line does not pass through the
CO-ordinates mentioned in letter 191 CM2, and concludes from an
investigation of the topographical data that the tripoint must have
lain to the south-east of the point indicated by these CO-ordinates.
Since this letter did not become a regulative text, it ranks only as
evidence of the boundary which had "de facto value" at the time. It
now transpires that the maps then available were not sufficiently
accurate to warrant such a precise definition. Thus the fact that
these CO-ordinates are found to have been defined with less accuracy
than had been thought does not contradict the Governor-General's
intention or deprive the letter of probative force.
The boundary in this region takes the following course: from
point E, the line continues straight as far as a point with the
CO-ordinates 1" 19' 05" W and 14" 43' 45" N, situated approximately
2.6 kilometres south of the pool of Toussougou (point FI, and then
reaches the pool of Soum at the point with the CO-ordinates
1" 05' 34" W and 14" 47' 04" N (point G); it crosses the pool from
west to east, dividing it equally.
5. The sector from the pool of Soum to mount Tabakarech
(paras. 151-1561
In order to determine the line of the frontier east of the pool
of Soum, the Chamber has to refer to the wording of letter 191 CM2 of
1935, which it has found to possess probative value. According to
Burkina Faso, the line follows the indications in this letter and on
the Blondel la Rougery map of 1925, from the point with the
CO-ordinates 0" 50' 47" W and 15" 00' 03" N, as far as the pool of
In Abao. There seems to be no doubt that the purpose of
letter 191 CM2was to define in textual form a boundary shown on that
map, and here the Parties are in agreement. Mali has emphasized the
inaccuracy and shortcomings of this map as regards the toponomy and
orography. The Chamber considers that in the sector from the pool of
Soum to Tabakarech no problem arises in the selection of a map. In
the absence of other indications to the contrary, the letter must be
interpreted as contemplating a straight line connecting
mount Tabakarech to the tripoint where the boundaries of the cercles
of Mopti, Ouahigouya and Dori converge.
The Chamber concludes tliat from point G the frontier runs in a
north-northeasterly direction as far as the point mentioned by
Burkina Faso, and from that point to Mount Tabakarech. This hi11 is
to be identified with the elevation which appears on the IGN 1:200,000
map under the name of Tin Tabakat, with the geographical CO-ordinates
0" 43' 29" W and 15" 05' 00" N (point HI.
6. The... 6. The pool of In Abao (paras. 157-163)
In determining the next section of the line, the Chamber must
refer to the Order made by the Governor-General of French West Africa
on 31 December 1922.
In that Order, froui the pool of In Abao the
western boundary of the cercle of Gao foilows "the northern boundary
of Upper Volta". The boundary to be established by the Chamber must
include that pool; the pool must therefore be identified in order to
determine the frontier line in relation to it. The information on the
various maps concerning the location and size of the pool is
contradictory(see sket:ch map No. 5 in the Judgment). From the
information available the Chamber considers it likely that the pool is
the one located at the junction of two marigots, one belng the Réli,
running £rom west to eiast, and the other running from north to soutl.1.
In the absence of more precise and reliable
information than has been
submitted to it concerning the relationship between the frontier line
and the pool of In Abao, the Chamber must conclude that the boundary
crosses the pool in stich a way asto divide it equally between the two
Parties.
The frontier must follow the IGN line from point H as far as the
point with the CO-ordinates 0" 26' 35" W and 15" 05' 00" N (point 1)
where it turns south-east to join the Béli. It continues straight as
far as point J, which lies on the wesr bank of the pool of In Abao,
and point Ky which lies on the east bank of the same pool. From
point K, the line once more runs in a north-easterly direction, and
rejoins the IGN line alt the point where that line, after leaving the
Béli to head north-eastward, again turns south-east to form an
orographic boundary (point L - 0" 14' 44" W and 15" 04' 42" NI.
Points J and K will be! determined with the assistance of experts
appointed pursuant to Article IV of the Special Agreement.
7. The region of the aéli (para. 164)
For the wliole of tkis ragicn Piali, rejecting letter 191 CM2 of
1935, argues ln f~voux oJ: a faonti.er run;iing along the marigot. The
two Parties have ~iebated at length the çhoice which was open to the
admini-stering pawer, as between a hydrcgciphic fronti er 31ong the Béli
and an orographic frontier along the crestline of the elevatfonü
risi~i~: to the north oi the milrigot. To the Chamherk opinion,
letter 191 CM2 provss tliat the orographie boundnsy tras adoptrd. As
for the boundary line desërlteti in t'r~at ictter, thi? Chamber notes that
the IGN map enjoys the appr~~val of both Parties, at lenst In regard to
ite representation cf éhe topography. It sees no reason to c!epart
from the 'Sroken i.d:~ri i- small crosses whicti is shown on that map and
appears to be a faitl-if'u~ reyr~sentation of the boundary descrihed in
letter 19L CN2, except with reg:ird to the eastermost part of the
line, where the problem arises of Mount N'Gouma.
8. 'fiéheights of N'Goum (paras. 165-174)
---
With regard co the firiai segment of the frontier lizie, the
essential question for the Chainber fs t-h~ iocation of the "heights of
N'Goums" mr:ntic:iled in the err'~lum to the 1'327 Order relatiug to the
hoondaries.. .boundaries between Upper Volta and Niger (see sketch rnap No. 6 in the
Judgment). That erratum defined the boundary as "a line starting at
the heights of N'Gouma, passing through the Kabia ford ...". Mali has
argued that this text was invalidated by a factual error, in that it
referred to Mount N'Gouma as being to the north of the ford, whereas
it was actually located south-west of it, as shown on the 1960 IGN
map, which, according to Mali, is the only accurate picture of the
situation. The Chamber has already stated that the text of the Order
and of the erratum should not be set aside in limine; their probative
value has to be appraised in order to determine the end-point of the
frontier. It emphasizes that the maps of the period, such as the
Blondel la Rougery rnap of 1925, locate Mount N'Gouma to the north of
the Kabia ford, and that this location is also borne out by a
1:1,000,000 map, evidence which the Chamber considers cannot be
overlooked, although the officia1 body which approved it is unknown.
Although the 1:200,000 IGN rnap of 1960 attaches the name N'Gouma to an
elevation situated south-east of the ford, it also contains altimetric
information from which it may be inferred that elevations ranged in a
quarter-circle between a position north of the ford and another
east-southeast of it together constitute an ensemble to which the name
"N'Gouma" could be given. The existence of elevations to the north of
the ford has, moreover, been confirmed by observations made on the
ground in 1975.
Since the Chamber is not aware of any oral tradition going back
at least to 1927 which might serve to contradict the indications given
by the maps and documents of the period, it concludes that the
Governor-General, in the 1927 Order and the erratum and in his
letter 191 CM2 of 1935, described an existing boundary which passed
through elevations rising to the north of the Kabia ford, and that the
administrators considered, rightly or wrongly, that those elevations
were known to the local people as the "heights of N'Gouma". The
Chamber has therefore only to ascertain the location, within the area
of high ground surrounding the ford, of the end-point of the boundary
defined by the above-mentioned texts. It concludes that this point
should be fixed three kilometres to the north of the ford, at the spot
defined by the CO-ordinates 0" 14' 39" E and 14" 54' 48" N (point Ml.
X. The line of the frontier (para. 175)
The Chamber fixes the line of the frontier between the Parties in
the disputed area. This line is reproduced, for illustrative
purposes, on a rnap which is a compilation of five sheets of the
1:200,000 IGN rnap and is annexed to the Judgment.
XI. Demarcation (para. 176)
The Chamber is ready to accept the task which the Parties have
entrusted to it, and to nominate three experts to assist them in the
demarcation operation, which is to take place within one year of the
delivery of the Judgment. In its opinion, however, it is
inappropriate to make in its Judgment the nomination requested by the
Parties, which will be made later by means of an Order.
XII. Provisional...XII. Provisional measures (paras. 177-178)
The Judgment States that the Order of 10 January 1986 ceases to
be operative upon the delivery of the Judgment. The Chamber notes
with satisfaction that the Heads of State of Burkina Faso and the
Republic of Mali have agreed "to withdraw al1 their armed forces from
either side of the disputed area and to effect their return to their
respective territories".
XIII. Binding force of the Judgment (para. 178)
The Chamber also notes that the Parties, already bound by
Article 94, paragraph 1, of the Charter of the United Nations,
expressly declared in Article IV, paragraph 1, of the Special
Agreement that they "accept the Judgment of the Chamber ... aa final
and binding upon them". The Chamber is happy to record the attachment
of both Parties to the international judicial process and to the
peaceful settlement of disputes.
XIIV. Operative clause (para. 179)
The text is given in full on pages 1-3 of this Communiqué. Annex 1 to Press Communiqué No. 86/18
Summary of the Opinions appended to the
Judgment of the Chamber
Separate Opinion of Judge ad hoc François Luchaire
Judge Luchaire voted for the operative provisions of the Judgment
because they were founded upon reasoning of which the logic is
unquestionable, but he does not fully endorse some of its aspects or
conclusions. He has therefore found it necessary to comment on the
following points:
1. The principle of the right of peoples to self-determination;
free choice of status and consequences for the French territoires
d'outre-mer of the referendum held on 28 September 1958.
11. Acquiescence - estoppel - interpretation of the Conakry
communiqué.
III. Reference to the 1932 boundaries drawn by the French
administration on the maps of the period. Later documents
irrelevant .
IV. Acquiescence arising from the participation of Dioulouna in the
democratic process in Sudan.
V. Possibility of a line passing through Kobo - Fayando -
Toussougou. Difficulties in relation to Dourumgara and In Abao -
Tin Kacham.
Separate Opinion of Judge ad hoc Georges Abi-Saab
Although he voted for the operative provisions of the Judgment,
Judge Abi-Saab cannot endorse certain aspects of either the Chamber's
reasoning or its conclusions.
In particular, he dissociates himself from the Judgment's
treatment of French colonial law, which, inhis opinion, has been
analysed in excessive detail. He also dissociates himself from the
role attributed to letter 191 CM2 of 1935, the declaratory nature of
which in respect of pre-existing territorial boundaries he regards as
a mere possibility, not hardened to certainty by any evidence.
Judge Abi-Saab considers that the decision to base the line in
the Béli region on that letter, which is simply a verbal reflection of
the Blondel la Rougery map, amounts to giving this map the status of a
legal title, although according to in the Judgment itself maps in
themselves are never sufficient to constitute such a title.
Having emphasized the difficulties which sometimes arise in
applying the principle of uti possidetis, the author notes that the
Chamber has adopted a possible legal solution within the bounds of the
degrees of freedom whiih exist in-the case. He considers this legally
acceptable, but would have preferred another approach, relying to a
greater extent upon considerations of equity infra legem in the
interpretation and application of the law, the area concerned being a
nomadic one afflicted-by drought, so that access to water is vital: ,---------------_------, .-.
,/- \,'*., .' --.---
,a- -0 \ 'S.*..-. ---__-.--
+ // + -\*:-/r~%-~ 1-1 --+ .-- .
//----- '---- \--\ ----.--
/ \\ f., -.--.
// ' \ 4-•
/ / ,- ,/ GU€ deKABIA
/
___------ //
_--_----_____--- 1/
-..--- / . //
_..--.-- / . /
DOUMA -- ../ 0
.---..---- 0 0.
--- .- 0- /
DIONOUC~..--~ H 0 /
;..'., / /
+i 00 R' +
-
: 1r--
: 1
/ BURKINA FASO
: //
:/
4 LOFOU
BOONDARY SUBMISSIONS MALI - --- CONCLUSIONS DU M4LI
BOUNOARV SUBMISSK>WS BIJRKINI FASO -------- CMLUSIONS BU BURKINA FASO
Annexe 2 au Communiauéde Presse No. 86/18
Croquis 1 MAL l
Croquis illustratifdu tracé de la ligne adoptée Voir par. 163 de l'zrrzt
par la Chambre (par. 175 de l'arrêt)
n 1
\ IN ABAO,'
\ .
GUI! 6KABIA
TOUSSOUGOU
OOUNI
OK>YOUGA
C
O
BURKINA FASO Sketch-map illustrating the line adopted by
the Chamber (para. 175 of the Judgrnent)
LOFOU
Annexe 2 PU C~.~niqué de presse No. 86/18
Croquis 2
Frontier Dispute (Burkina Faso/Mali) - Judgment of the Chamber