Frontier Dispute (Burkina Faso v Mali)

Facts:

Burkina Faso (previously the Republic of Upper Volta) and the Republic of Mali each obtained
independence in 1960 following decolonization. Later, the Organization of African Unity,
comprised of African Heads of State, was formed. In 1964, the Organization of African Unity met
in Cairo, Egypt and issued a resolution declaring that all member States of the Organization of
African Unity “solemnly…pledge themselves to respect the frontiers existing on their
achievement of national independence.” This resolution codified into law the age-old
international principle of uti possidetis. In 1975, the Head of State of Mali made a statement
indicating a lack of respect for the existing boundaries between Mali and Burkina Faso. Mali and
Burkina Faso later submitted to a Chamber of the International Court of Justice (ICJ) the question
of the proper demarcation of boundary lines between the two States. In considering the case, the
ICJ discussed the principle of uti possidetis.

Issue:

Does an obligation exist to respect pre-existing international frontiers in the event of a

state succession?

Ruling:

Yes. An obligation exists to respect pre-existing international frontiers in the event of a

state succession, whether or not the rule is expressed in the form of uti possidetis. The fact that
the principle did not exist when the states declared such independence in 1960 does not
foreclose its present application.

In its Judgment delivered on 22 December 1986, the Chamber began by ascertaining the
source of the rights claimed by the Parties. It noted that, in that case, the principles that ought to
be applied were the principle of the intangibility of frontiers inherited from colonization and the
principle of uti possidetis juris, which accords pre-eminence to legal title over effective
possession as a basis of sovereignty, and whose primary aim is to secure respect for the
territorial boundaries which existed at the time when independence was achieved. The Chamber
specified that, when those boundaries were no more than delimitations between different
administrative divisions or colonies all subject to the same sovereign, the application of the
principle of uti possidetis juris resulted in their being transformed into international frontiers, as
in the instant case.
 It also indicated that it would have regard to equity infra legem, that is, that form of equity
which constitutes a method of interpretation of the law and which is based on law. The Parties
also relied upon various types of evidence to give support to their arguments, including French
legislative and regulative texts or administrative documents, maps and “colonial effectivités” or,
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. Having considered those various
kinds of evidence, the Chamber defined the course of the boundary between the Parties in the
disputed area. The Chamber likewise took the opportunity to point out, with respect to the
tripoint Niger-Mali-Burkina Faso, that its jurisdiction was not restricted simply because the
endpoint of the frontier lay on the frontier of a third State not a party to the proceedings. It
further pointed out that the rights of Niger were in any event safeguarded by the operation of
Article 59 of the Statute of the Court.

Analysis:
-The principle of uti possidetis developed with respect to the Spanish American colonies. In a
similar dispute between El Salvador and Honduras, the Court described the principle as follows:
“The general principle offered the advantage of establishing an absolute rule that there was not
in law in the old Spanish America any terra nullius; while there might exist many regions that had
never been occupied by the Spaniards … the regions were reputed to belonging in law to
whichever of the republics succeeded to the Spanish province to which these territories attached
by virtue of the old Royal ordinances of the Spanish mother country.”

Outcome:
-There exists an obligation to respect pre-existing international frontiers in the event of a state
succession, whether or not the rule is expressed in the form of uti possidetis. Thus, the
numerous declarations of the intangibility of the frontiers at the time of the declaration of
independence of the African states are declaratory. The fact that the principle did not exist when
the states declared such independence in 1960 does not foreclose its present application.