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INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING THE FRONTIER DISPUTE

(BURKINA FASO/REPUBLIC OF MALI)

General List No. 69

INTERNATIONAL COURT OF JUSTICE

1986 ICJ LEXIS 3

22 December 1986

TYPE: [*1] Judgment

JUDGES: Present: Judge BEDJAOUI, President of the Chamber; Judges LACHS, RUDA; Judges ad hoc LUCHAIRE, ABI-SAAB; Registrar TORRES BERNATDEZ

TEXT: Frontier dispute -- Frontiers inherired from the colonial period -- Applicable law -- Principle of uti possidetis juris -- Nature and scope of the principle -- 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.

Conduct of a Party -- Argumenf from acquiescence -- Unilareral acl of one government -- Intention to become bound -- Interwetation of theact in theliaht of all the factual circumstances and of the possibility of becoming bound by other means -- Acceptance of the application to the dispute of certain principles and rules -- Rules expressly recongnized by the contesting States.

Interests of a third State -- Frontier ending in a tripoint -- Judicial competence and exercise of the iudicial function -- Distinction between the determination of a land boundary and the identification of the rules applicable to the delimitation of the continental shelf -- Duty of the Chamber to rule [*2] upon the whole of the petitum.

Title and evidence -- Difficulties relating to evidence -- Legislative and regulatory texts -- Value of the texts as evidence independently of their validity in the internal legal order -- Cartographic materials -- Maps as extrinsic evidence -- Possibility of a map being one of the elements constituting the expression of the State's intentions -- Value of maps as evidence -- State's intentions -- Value of maps as evidence -- Technical reliability -- Neutrality of their sources -- Problems raised in this case by the cartographic materials (incompatibility, deficiencies) -- The "colonial effectivites" as evidence of the effective exercise of territorial jurisdiction -- Correspondence among the colonial administrators.

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.

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 Jimenez [*3] de Arechaga, formerly Professor of International Law at the University of Montevideo,

as Adviser,

Mr. Jean-Pierre Cot, professeur de droit international et de sociologie politique a 1' Universite de Paris I.

Mr. Alain Pellet, professeur a 1' Universite de Paris-Nord et a 1' Institutd'e tudes politiques de Paris,

as Counsel and Advocates,

Mr. Souleymane Diallo, Counsellor at the Embassy of Burkina Faso in Paris,

as Counsel,

Mr. Jean Gateaud, ingenieur general geographe (retired),

as Expert,

Mr. Alain Pipart, assistant a 1' Universite 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, Angelique 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 International Co-operation,

as Co-Agent,

Mr. Rene-Jean Dupuy, professeur au College de France,

Mr. Pierre-Marie Dupuy, professeur [*4] a l'Universite de droit, d'economie et de sciences sociales de Paris,

Mr. Raymond Ranjeva, de l'Academie malgache, president de l'etablissement d'enseignement superieur de droit, d'economie, de gestion et de sociologie de l'Universite de Madagascar,

Mr. Jean Salmon, professeur a l'Universite libre de Bmxelles,

as Counsel,

Mr. Diadie Traore, 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 Territorial Administration and Basic Development,

Mr. Mamadou Kone, Head of the Legal Department in the Government Secretariat,

Mr. N'Tji Laico Traore, Charge d'affaires a.i, Embassy of Mali in Brussels,

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 (retired),

Mr. Drissa Sangare, Ministry of Territorial Administration and Basic Development,

Mr. Amadou Billy Soussoko, Ministry of Territorial Administration [*5] and Basic Development,

Mr. Aliou Toure, National Office of Cartography and Topography,

Mr. Ournar Kansa Ongoiba, Administrative Officer ; Cabinet attache, Ministry of Territorial Administration and Basic Development,

Mrs. Macire Yattassaye, journalist attached to the Ministry of Territorial Administration and Basic Development,

as Experts,

THE CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE formed to deal with the case above-mentioned,

composed as above,

after deliberation,

delivers the following Judgment:

1. By a joint letter dated 14 October 1983, filed in the Registry of the Court on 20 October 1983, the Minister for Foreign Affairs and International Co-operation of the Republic of Mali and the Minister for Foreign Affairs of the Republic 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: [*6]

"The Government of the Republic of the Upper Volta and the Government of the Republic of Mali,

Desiring to achieve as rapidly as possible a settlement of the frontier dispute between them, based in particular on respect for the principle of the intangibility of frontiers inherited from colonization, and to effect the definitive delimitation and demarcation of their common 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 Beli.

Article II

Formation of a Chamber of the International Court of Justice

The Parties submit the question put in Article I to a chamber of the International Court of Justice (hereinafter called [*7] 'the Chamber') formed pursuant to Article 26, paragraph 2, of the Statute of the International Court of Justice (hereinafter 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-Memorial filed by each Party not later than six months after exchange of the Memorials;

(c) any other pleading which the Chamber may 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 from the other Party.

Article IV

Judgment of the Chamber

1. The Parties accept the Judgment of the Chamber given pursuant to the Special Agreement as final and binding upon them.

2. Within one year after that Judgment the Parties shall [*8] effect the demarcation of the frontier.

3. The Parties request the Chamber to nominate, in its Judgment, three experts to assist them in the demarcation operation.

Article V

Entry into Force, Publication and Notification

1. The present Special Agreement shall come into force on the date of its signature.

2. It shall be registered with the Secretariat of the United Nations pursuant to Article 102 of the United Nations Charter by the more diligent Party.

3. In accordance with Article 40 of the Statute of the Court, the present Special Agreement shall be notified to the Registrar of the Court by a joint letter from the Parties.

4. If such notification is not effected in accordance with the preceding paragraph within one month from the entry into force of the present Special Agreement, it shall be notified to the Registrar of the Court by the more diligent Party."

3. Pursuant to Article 40, paragraph 3, of the Statute of the Court, and to Article 42 of the Rules of Court, copies of the notification and Special Agreement were transmitted to the Secretary-General of the United Nations, the Members of the United Nations and other States entitled to appear before the Court.

4. [*9] By a letter dated 29 August 1984, filed with the Registry on 4 September 1984, the Agent of Burkina Faso (formerly the Upper Volta) informed the Court of the change of name of his country, in force from 4 August 1984.

5. By the same letter, the Agent of Burkina Faso notified to the Court the choice by his Government of Mr. Francois Luchaire, Professor at the University of Paris I, to sit as judge ad hoc; and by a letter of 18 March 1985, the Co-Agent of Mali notified his Government's choice of Mr. Georges Abi-Saab, Professor at the Graduate Institute of International Studies, Geneva, to sit as judge ad hoc.

6. The Parties, duly consulted by the President on 14 March 1985 concerning the composition of the Chamber, expressed their wish for the formation of a Chamber of five Members, two of whom would be judges ad hoc chosen by them pursuant to Article 31 of the Statute of the Court, and confirmed their wish that the Court should proceed immediately to the constitution of the Chamber.

7. By an Order dated 3 April 1985 the Court, having noted the choice of a judge ad hoc by each of the Parties, decided to accede to the request of the Governments of Burkina Faso and the [*10] Republic of Mali for the constitution of a special Chamber of five judges to deal with the case, and declared that Judges Lachs, Ruda and Bedjaoui had been elected to form, with the above-named judges ad hoc, such a Chamber, and that it was duly constituted with that composition.

8. By an Order made on 12 April 1985, pursuant to Article 92 of the Rules of Court, the President of the Court, referring to Article III, paragraph 2, of the Special Agreement, fixed 3 October 1985 as the time-limit for the filing of a Memorial by each Party. The Memorials in question were duly filed within the time-limit so fixed. By an Order dated 3 October 1985, the President of the Chamber, referring to Article III, paragraph 2, of the Special Agreement, fixed 2 April 1986 as the time-limit for the filing of a Counter-Memorial by each Party, reserving the subsequent procedure for further decision.

9. Before the expiry of the time-limit for the filing of the Counter-Memorials, the Parties submitted to the Chamber parallel requests for the indication of provisional measures. The Chamber held a public sitting on 9 January 1986 for the purpose of hearing the oral observations of the Parties and, on 10 [*11] January 1986, made an Order whereby it indicated certain provisional measures ; called upon the Agents of the Parties to notify the Registrar without delay of any agreement concluded between their Governments within the scope of point 1 D of the same Order ; and decided that, pending its final judgment, and without prejudice to the application of Article 76 of the Rules, the Chamber would remain seised of the questions covered by that Order.

10. In a letter dated 24 January 1986, and pursuant to point 2 of the above mentioned Order indicating provisional measures, the Co-Agent of the Republic of Mali transmitted to the Registrar the final communique, issued on 18 January 1986, of the first extraordinary conference of Heads of State and Government of the member countries of ANAD (Accord de non-agression et d'assistance en matiere de defense). That communique reported that the Heads of State of Burkina Faso and the Republic of Mali had agreed "to withdraw all their armed forces from either side of the disputed area and to effect their return to their respective respective territories".

11. On 2 April 1986, within the time-limit fixed for that purpose, the Parties filed their Counter-Memorials. [*12] On the same day, they stated that they did not wish to present any further written pleadings. Since the Chamber did not consider that any further written pleadings were necessary, the case was ready for hearing.

12. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Chamber, having ascertained the views of the Parties, decided that copies of the pleadings and documents annexed would be made accessible to the public with effect from the opening of the oral proceedings.

13. After the closure of the written proceedings both Parties produced further documents under Article 56 of the Rules. The Parties having been duly consulted pursuant to Articles 31 and 58, paragraph 2, of the Rules of Court, public sittings were held on 16-21 June and 24-26 June 1986, at which the Chamber was addressed by the following:

For Burkina Faso:	H.E. Mr. Ernest Ouedraogo,
	Mr. Souleymane Diallo,
	H.E. Mr. Emmanuel Salembere,
	Mr. Alain Pellet,
	Mr. Jean-Pierre Cot,
	Mr. Jean Gateaud.
For the Republic of Mali:	H.E. Lieutenant-Colonel Abdourahmane Maiga,
	Mr. Jean Salmon,
	Mr. Raymond Ranjeva,
	Mr. Pierre-Marie Dupuy,
	Mr. Diadie Traore,
	Mr. Paul Delmond.

14. At the hearing [*13] held on the morning of 26 June 1986 Burkina Faso, which had already completed its last round of oral argument, requested the Chamber to enable it to comment briefly upon the statement made the same day by a member of the Malian delegation. The Chamber decided to accede to that request and to authorize the Republic of Mali to comment in turn upon the observations to be made at that hearing by Burkina Faso, either orally, before the closure of the oral proceedings, or in writing within the ensuing 48 hours. The Republic of Mali conveyed to the Registry, within the prescribed time-limit, a written reply to the observations of the other Party, to which that reply was immediately communicated.

15. During the proceedings, the following Submissions were presented by the Parties:

On behalf of Burkina Faso,

in the Memorial and Counter-Memorial and at the hearing of 24 June 1986 (afternoon):

"I. Burkina Faso respectfully requests the Chamber of the International Court of Justice, formed in accordance with the Special Agreement of 16 September 1983, to adjudge and declare that the course of the frontier between Burkina Faso and the Republic of Mali is constituted by the following line: [*14]

1. West of the point with the geographical co-ordinates:

longitude 0 [degree] 40' 47" W

latitude 15 [degree] 00'03" N

the line is as shown on the 1:200,000 scale map of the French Institut geographique national (1960 edition), the villages of Dioulouna, Oukoulou, Agoulourou and Koubo being located in Burkinabe territory.

2. East of the point with the geographical co-ordinates:

longitude 0 [degree] 40' 47" W

latitude 15 [degree] 00' 03" N

the line corresponds to the information given in letter 191 CM2 of 19 February 1935, and on the 1:500,000 scale map, 1925 edition, as far as the northern point of the pool of In Abao.

3. From the northern point of the pool of In Abao, the line follows the course shown on the 1:500,000 scale map, 1925 edition, leaving the region of the Beli to Burkina Faso, as far as the tripoint with the frontier of Niger, which is formed by the heights of N'Gouma, situated to the north of the Kabia ford.

II. Burkina Faso respectfully requests the Chamber to appoint three experts to assist the Parties for the purpose of the demarcation operation, which is to be completed within one year of the delivery of the judgment."

On behalf of the Republic of [*15] Mali,

in the Memorial and Counter-Memorial:

"The Government of the Republic of Mali submits as follows:

May it please the Chamber

To state that the frontier line betweeen the Republic of Mali and Burkina Faso in the disputed area runs through the following points:

- Lofou,

- the mosque-shaped enclosure situated 2 kilometres to the north of Diguel,

- a point situated 3 kilometres to the south of Kounia,

- the Selba baobab,

- the Tondigaria,

- Fourfare Tiaiga,

- Fourfare Wande,

- Gariol,

- Gountoure Kiri,

- a point to the east of the pool of Ketiouaire, having the following geographical co-ordinates:

longitude 0[degree]44'47"W

latitude 14[degree] 56' 52" N

- the pool of Raf Naman,

and from that point follows the marigot passing, in particular, through the pool of Fadar-Fadar, the pool of In Abao, the pool of Tin Akoff and the pool of In Tangoum, terminating at the Kabia ford";

at the hearing of 26 June 1986 (afternoon):

"The Government of the Republic of Mali submits as follows:

May it please the Chamber

1. To state that the frontier line between the Republic of Mali and Burkina Faso in the disputed area runs through the following points :

- Lofou,

- [*16] the mosque-shaped enclosure situated 2 kilometres to the north of Diguel,

- a point situated 3 kilometres to the south of Kounia,

- the Selba baobab,

- the Tondigaria,

- Fourfare Tiaiga,

- Fourfare Wande,

- Gariol,

- Gountoure Kiri,

- a point to the east of the pool of Ketiouaire, having the following geographical co-ordinates:

longitude 0[degree] 44' 47" W

latitude 14[degree] 56' 52" N

- the pool of Raf Naman,

and from that point follows the marigot passing, in particular, through the pool of Fadar-Fadar, the pool of In Abao, the pool of Tin Akoff and the pool of In Tangoum, terminating at the Kabia ford.

2. To refrain from determining the tripoint between the Republic of Mali, Burkina Faso and Niger.

3. To nominate, in its Judgment, three experts to assist the Parties in the demarcation operation (Art. IV, para. 3, of the Special Agreement of 16 September 1983)."

16. The task entrusted to the Chamber in this case by the Special Agreement concluded between the two Parties on 16 September 1983 is that of indicating the line of the frontier between Burkina Faso and the Republic of Mali (hereinafter called "Mali") in the disputed area, as defined in that Special Agreement. [*17] The two States have a common frontier of 1,380 kilometres according to Burkina Faso and 1,297 kilometres according to Mali, of which almost 900 kilometres according to Burkina Faso and almost 1,022 kilometres according to Mali have been successfully delimited by agreement between the Parties. The disputed area is defined by the Special Agreement as "a band of territory extending from the sector Koro (Mali) Djibo (Upper Volta) up to and including the region of the Beli". The Beli is the largest of the temporary watercourses in the region. It originates in the eastern slopes of the Hombori mountains and flows to the south-east before joining the Niger river outside the disputed area. In the dry season it consists of a chain of 11 pools. In their submissions to the Chamber, each of the Parties indicated the frontier line which it considered well-founded in law (these lines and the topography of the region are shown on sketch-map No.1 n1) ; according to either contention, the disputed frontier runs in an approximately west-east direction between Mali to the north and Burkina Faso to the south. The end-point of the frontier to the east, the position of which has not been determined, is [*18] also a point on the frontier between Niger and the two disputant States and is, accordingly, a tripoint. By the Niamey Protocol of 23 June 1964 between Upper Volta and Niger, those two States agreed that, for the purpose of delimiting their common frontier, they would have recourse to certain documents which were mentioned in the Protocol and treated as basic documents. However, the two States have not as yet carried out any delimitation operations. As for the frontier between Mali and Niger, it was decided at a recent meeting between representatives of those two States that bilateral negotiations would be set in train with a view to determining it, but no agreement has at present been concluded on the subject. In the present case, Mali maintains, for reasons to be considered below, that the Chamber must refrain from taking any decision on the position of the above mentioned tripoint. Burkina Faso, on the other hand, maintains that such a decision is necessary as an integral part of the task entrusted to the Chamber.

>FTNT>

n1 A copy of this sketch-map will be found in a pocket at the end of this fascicle or inside the back cover of the volume of I.C.J. Reports 1986. [Note by the Registry.]>ENDFN>

[*19]

17. The Parties have argued at length over how the present dispute is to be classified in terms of a distinction sometimes made by legal writers between "frontier disputes" or "delimitation disputes", and "disputes as to attribution of territory". According to this distinction, the former refer to delimitation operations affecting what has been described as "a portion of land which is not geographically autonomous" whereas the object of the latter is the attribution of sovereignty over the whole of a geographical entity. Both Parties seem ultimately to have accepted that the present dispute belongs rather to the category of delimitation disputes, even though they fail to agree on the conclusions to be drawn from this. In fact, however, in the great majority of cases, including this one, the distinction outlined above is not so much a difference in kind but rather a difference of degree as to the way the operation in question is carried out. The effect of any delimitation, no matter how small the disputed area crossed by the line, is an apportionment of the areas of land lying on either side of the line. In the present case, it may be noted that the Special Agreement, in Article I, [*20] refers not merely to a line to be drawn, but to a disputed "area", which it defines as consisting of a "band" of territory encompassing the "region" of the Beli. Moreover, the effect of any judicial decision rendered either in a dispute as to attribution of territory or in a delimitation dispute, is necessarily to establish a frontier. It is not without interest that certain recent codifying conventions have used formulae such as a treaty which "establishes a boundary" or a "boundary established by a treaty" to cover both delimitation treaties and treaties ceding or attributing territory (cf. Vienna Convention on the Law of Treaties, Art. 62 ; Vienna Convention on Succession of States in respect of Treaties, Art, 11). In both cases, a clarification is made of a given legal situation with declaratory effect from the date of the legal title upheld by the court. This clarification is itself a new element; it was because the parties wished to see that element introduced that they went to court at all. If there had been no dispute or uncertainty, they would not have wished to do so. Hence it is not so much the nature and qualification of the present dispute as the Statute of the Court [*21] and the terms of the Special Agreement which must determine the nature and extent of the Chamber's task and functions in this case.

18. The Chamber also feels obliged to dispel a misunderstanding which might arise from this distinction between "delimitation disputes" and "disputes as to attribution of territory". One of the effects of this distinction is to contrast "legal titles" and "effectites". In this context, the term "legal title" appears to denote documentary evidence alone. It is hardly necessary to recall that this is not the only accepted meaning of the word "title". Indeed, the Parties have used this word in different senses. In fact, the concept of title may also, and more generally, comprehend both any evidence which may establish the existence of a right, and the actual source of that right. The Chamber will rule at the appropriate juncture on the relevance of the evidence produced by the Parties for the purpose of establishing their respective rights in this case. It will now turn to the question of the rules applicable to the case ; in so doing, it will, inter alia, ascertain the source of the rights claimed by the Parties.

19. The characteristic feature of [*22] the legal context of the frontier determination 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 years. Their territories, and that of Niger, were formerly part of the French colonies which were grouped together under the name of French West Africa (AOF). Considering only the situation which prevailed immediately before the accession to independence of the two States, and disregarding previous administrative changes, it can be said that Burkina Faso corresponds to the colony of Upper Volta, and the Republic of Mali to the colony of Sudan (formerly French Sudan). It is to be supposed that the Parties drew inspiration from the principle expressly stated in the well-known resolution (AGH/Res. 16 (I)), adopted at the first session of the Conference of African Heads of State and Government, meeting in Cairo in 1964, whereby the Conference solemnly declared that all member States of the Organization of African Unity "solemnly . . . pledge themselves to respect the frontiers existing on their achievement of national independence", inasmuch as, in the preamble to their [*23] Special Agreement, they stated that the settlement of the dispute by the Chamber must be "based in particular on respect for the principle of the intangibility of frontiers inherited from colonization". It is clear from this text, and from the pleadings and oral arguments of the Parties, that they are in agreement as regards both the applicable law and the starting-point for the legal reasoning which is to lead to the determination of the frontier between their territories in the disputed area.

20. Since the two Parties have, as noted above, expressly requested the Chamber to resolve their dispute on the basis, in particular, of the "principle of the intangibility of frontiers inherited from colonization", the Chamber cannot disregard the principle of uti possidetis juris, the application of which gives rise to this respect for intangibility of frontiers. Although there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasize its general scope, in view of its exceptional importance for the African continent and for the two Parties. In [*24] this connection it should be noted that the principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.

21. It was for this reason that, as soon as the phenomenon of decolonization characteristic of the situation in Spanish America in the 19th century subsequently appeared in Africa in the 20th century, the principle of uti possidetis, in the sense described above, fell to be applied. The fact that the new African States have respected the administrative boundaries and frontiers established [*25] by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope.

22. The elements of uti possidetis were latent in the many declarations made by African leaders in the dawn of independence. These declarations confirmed the maintenance of the territorial status quo at the time of independence, and stated the principle of respect both for the frontiers deriving from international agreements, and for those resulting from mere internal administrative divisions. The Charter of the Organization of African Unity did not ignore the principle of uti possidetis, but made only indirect reference to it in Article 3, according to which member States solemnly affirm the principle of respect for the sovereignty and territorial integrity of every State. However, at their first summit conference after the creation of the Organization of African Unity, the African Heads of State, in their Resolution mentioned above (AGH/Res. 16 (I)), adopted in Cairo in July 1964, [*26] deliberately defined and stressed the principle of uti possidetis juris contained only in an implicit sense in the Charter of their organization.

23. There are several different aspects to this principle, in its well known application in Spanish America. The first aspect, emphasized by the Latin genitive juris, is found in the pre-eminence accorded to legal title over effective possession as a basis of sovereignty. Its purpose, at the time of the achievement of independence by the former Spanish colonies of America, was to scotch any designs which non-American colonizing powers might have on regions which had been assigned by the former metropolitan State to one division or another, but which were still uninhabited or unexplored. However, there is more to the principle of uti possidetis than this particular aspect. The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis [*27] resulted in administrative boundaries being transformed into international frontiers in the full sense of the term. This is true both of the States which took shape in the regions of South America which were dependent on the Spanish Crown, and of the States Parties to the present case, which took shape within the vast territories of French West Africa. Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.

24. The territorial boundaries which have to be respected may also derive from international frontiers which previously divided a colony of one State from a colony of another, or indeed a colonial territory from the territory of an independent State, or one which was under protectorate, but had retained its international personality. There is no doubt that the obligation to respect pre-existing international frontiers in the event of a State succession derives from a general rule of international law, whether or not the rule is expressed in the formula uti [*28] possidetis. Hence the numerous solemn affirmations of the intangibility of the frontiers existing at the time of the independence of African States, whether made by senior African statesmen or by organs of the Organization of African Unity itself, are evidently declaratory rather than constitutive : they recognize and confirm an existing principle, and do not seek to consecrate a new principle or the extension to Africa of a rule previously applied only in another continent.

25. However, it may be wondered how the time-hallowed principle has been able to withstand the new approaches to international law as expressed in Africa, where the successive attainment of independence and the emergence of new States have been accompanied by a certain questioning of traditional international law. At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. [*29] The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.

26. Thus the principle of uti possidetis has kept its place among the most important legal principles, despite the apparent contradiction which explained its coexistence alongside the new norms. Indeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis. This remains an undeniable fact. In the light of the foregoing remarks, it is clear that the applicability of uti possidetis in the present case cannot be challenged merely because in 1960, the year when Mali and Burkina Faso achieved independence, the Organization of African Unity which was to proclaim this principle did not yet exist, and the above-mentioned resolution calling for respect for the pre-existing frontiers dates only from 1964.

27. In their pleadings and oral arguments, the two Parties have advanced conflicting views on the [*30] question whether equity can be invoked in the present case. They both agree that no use should be made of the Chamber's power, under Article 38 of the Statute, to decide the case ex aequo et bono if they had agreed to this. However, Mali urges that account should be taken of "that form of equity which is inseparable from the application of international law", which it sees as equivalent to equity infra legem. Although it did not object to this concept being resorted to, Burkina Faso considered that it was far from clear what the practical implications would be in this case. It emphasized that in the field of territorial boundary delimitation there is no equivalent to the concept of "equitable principles" so frequently referred to by the law applicable in the delimitation of maritime areas. Mali did not question this statement; it explained that what it had in mind was simply the equity which is a normal part of the due application of law.

28. It is clear that the Chamber cannot decide ex aequo et bono in this case. Since the Parties have not entrusted it with the task of carrying out an adjustment of their respective interests, it must also dismiss any possibility of resorting [*31] to equity contra legem. Nor will the Chamber apply equity praeter legem. On the other hand, it will have regard to equity infra legem, that is, that form of equity which constitutes a method of interpretation of the law in force, and is one of its attributes. As the Court has observed : "It is not a matter of finding simply an equitable solution, but an equitable solution derived from the applicable law," (Fisheries Jurisdiction, I.C.J. Reports 1974, p. 33, para. 78 ; p. 202, para. 69.) How in practice the Chamber will approach recourse to this kind of equity in the present case will emerge from its application throughout this Judgment of the principles and rules which it finds to be applicable.

29. The determination of a frontier line between two States is obviously a matter of international law, but the Parties both recognize also that the question has here to be appraised in the light of French colonial law, "droit d'outre-mer". Since the territories of the two States had been part of French West Africa, the former boundary between them became an international frontier only at the moment when they became independent. The line which the Chamber is required to [*32] determine as being that which existed in 1959-1960, was at that time merely the administrative boundary dividing two former French colonies, called terrhoires d'outre-mer from 1946 ; as such it had to be defined not according to international law, but according to the French legislation which was applicable to such territoires.

30. One clarification is, however, necessary as concerns the application of French droit d'outre-mer. By becoming independent, a new State acquires sovereignty with the territorial base and boundaries left to it by the colonial power. This is part of the ordinary operation of the machinery of State succession. International law - and consequently the principle of uti possidetis -- applies to the new State (as a State) not with retroactive effect, but immediately and from that moment onwards. It applies to the State as it is, i.e., to the "photograph" of the territorial situation then existing. The principle of uti possidetis freezes the territorial title ; it stops the clock, but does not put back the hands. Hence international law does not effect any renvoi to the law established by the colonizing State, nor indeed to any legal rule [*33] unilaterally established by any State whatever; French law -- especially legislation enacted by France for its colonies and territoires d'outre-mer -- may play a role not in itself (as if there were a sort of continuum juris, a legal relay between such law and international law), but only as one factual element among others, or as evidence indicative of what has been called the "colonial heritage", i.e., the "photograph of the territory" at the critical date.

31. With a view to a proper understanding of what follows, it should be recalled that from the beginning of the century up to the entry into force of the French Constitution of 27 October 1946, the territorial administration of French West Africa was centralized. It was headed by a governorgeneral, and was divided into colonies ; the power to create or abolish these belonged to the executive in Paris. At the head of each colony was a lieutenant-governor. The colonies were themselves made up of basic units called cercles which were administered by commandants de cercle; the creation and abolition of the cercles were the sole prerogative of the governor-general, who decided their overall extent. Each cercle [*34] in turn was composed of subdivisions, administered by chefs de subdivision. Finally, the subdivisions comprised cantons, which grouped together a number of villages. The creation and abolition of subdivisions and cantons within any particular cercle came within the jurisdiction of the lieutenant-governor of the colony of which the cercle formed part.

32. For the purpose of determining in broad terms what for each of the two Parties was the colonial heritage to which the uti possidetis was to apply, the origins of the French colonies concerned will be briefly retraced. For this purpose, however, it is unnecessary to go further back in the history of the colonies of French West Africa than 1919. At that time, the present territories of Mali and Burkina Faso both formed part of the colony of Upper Senegal and Niger. By virtue of a decree of the President of the French Republic dated 1 March 1919, the cercles of Gaoua, Bobo-Dioulasso, Dedougou, Ouagadougou. Dori and Fada N'Gourma, which had until then been part of Upper Senegal and Niger, were established as a separate colony with the name of Upper Volta. By a decree of 4 December 1920, the remaining [*35] territories, comprising what was left of Upper Senegal and Niger, were given the name of French Sudan, and by a decree of 13 October 1922 the Civil Territory of the Niger became an independent colony. The colony of French Sudan (or Sudan) continued to exist as such, or as a territoire d'outre-mer, until 1959 when it became the Sudanese Republic, and then achieved independence, as the Federation of Mali, on 20 June 1960. On the other hand, the decree of 1 March 1919 which had created Upper Volta was rescinded by a decree of 5 September 1932, and the cercles which had comprised Upper Volta were incorporated, in whole or in part, into Niger and into French Sudan or the Ivory Coast. The Chamber refers to paragraph 73 below and to sketch-map No. 2, which shows the distribution of the cercles in the disputed frontier region. Upper Volta was reconstituted in 1947 by the law 47-1707 of 4 September 1947, which rescinded outright the decree of 5 September 1932 that had abolished the colony of Upper Volta, and stated that the boundaries of "the re-established territory of Upper Volta" were to be "those of the former colony of Upper Volta on 5 September 1932". It was this reconstituted [*36] Upper Volta which subsequently obtained independence on 5 August 1960, and took the name of Burkina Faso in 1984.

33. For both Parties, the problem is to ascertain what is the frontier which was inherited from the French administration, that is, the frontier which existed at the moment of independence. However, their views diverge somewhat as to the exact date to be chosen for that purpose. In the opinion of Burkina Faso, the date to be taken into consideration is that of the accession of each Party to independence : 20 June 1960 for Mali and 5 August I960 for Burkina Faso. In Mali's opinion, it is necessary to go back to the "last date on which the French colonial authorities participated in the exercise of jurisdiction for administrative organization", a date which, for the reasons explained in its Memorial, Mali fixes at 30 January 1959 for the Sudanese Republic and 28 February 1959 for Upper Volta. The Parties have however, while holding to their respective contentions as to the legal grounds which warrant the choice of these dates, ultimately admitted that the point has no practical implications for the case. They are requesting the Chamber to ascertain what, in the disputed [*37] area, was the frontier between the territoires d'outre-mer of Sudan and of Upper Volta as it existed in 1959-1960. Although it was said on a number of occasions, during the colonial period, that there was no frontier which was fully determined by direct or delegated legislation, the two Parties both agree that when they became independent there was a definite frontier. Both of them also accept that no modification of the frontier took place between January 1959 and August 1960, or has taken place since.

34. The Parties have expounded at length the origins of the frontier dispute which is presently before the Chamber. Since however the line of the frontier has to be defined as it existed in the years 1959-1960, and the Parties agree that no legal validity attaches to any subsequent acts of administration which may have been performed by either of them on the territory of the other, a review of the frontier incidents and the efforts made to bring the dispute to an end would hardly be pertinent. Nevertheless, one Burkinabe argument warrants particular attention. This argument is based on the conduct of the Marian Government during the negotiations which led to agreements being concluded [*38] for the delimitation of the 900 or 1,022 kilometres of frontier which are no longer in dispute, and on that Government's attitude towards the work of a Mediation Commission of the Organization of African Unity which sat in 1975. According to Burkina Faso, Mali accepted as binding the solution to the dispute outlined by that Commission. Since this argument from acquiescence would, if correct, make it unnecessary to endeavour to establish the frontier inherited from the colonial period, it should be dealt with at the outset as a preliminary question.

35. Very soon after achieving independence, the Parties set up bilateral negotiating machinery with a view to resolving their frontier problems. Thus, as early as 29 November 1961, they gave institutional shape to the regular meetings already held during the colonial period between the heads of the frontier districts, by establishing a "mixed commission composed of the chefs de circonscription". Subsequently, on 25 February 1964, they instituted a "joint commission" comprising for each State a government delegate, a geographer, a topographer and the commandants of the frontier cercles, its task being to make proposals by 15 [*39] June 1964 "for the delimitation of the frontier on the basis of the preparatory work of the chefs de circonscription". This commission was replaced by a "standing joint commission" created on 8 May 1968, which comprised the Ministers of the Interior together with representatives of various ministries of both countries. The task entrusted to this latter body was a much broader one: general co-operation between the two countries. Finally, in the same year, a conference of Ministers of the Interior of both Parties created a "mixed technical commission", comprising for each State a government representative, a topographer, a geographer and the chefs de circonscription concerned. The task of this commission was "to survey and identify the frontier in accordance with the pre-independence documents held by the Governments of Mali and Upper Volta". The Parties have produced a number of records and documents emanating from these bodies.

36. Following an armed conflict between the two countries which broke out on 14 December 1974, appeals were made for conciliation, notably by the head of State of Somalia, then President of the Organization of African Unity, and by the President of Senegal. [*40] On 26 December 1974, the Presidents of Upper Volta, Mali and Togo met at Lome and decided to set up a Mediation Commission composed of Togo, Niger, Guinea and Senegal. One of the tasks of the Commission as stated in the Lome communique was that of "seeking a solution to the frontier dispute on the basis of existing legal documents". The Mediation Commission met on 6 and 7 January 1975 and set up a Military Sub-Commission and a Legal Sub-Commission ; the latter's role included "drawing up an initial draft proposal for submission to the Commission, comprising . . . an outline solution . . . ". On 11 April 1975, the head of State of Mali granted an interview to the France-Presse agency, during which he stated that:

"Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for a scrap of territory 150 kilometres long. Even if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with the decision."

37, The Legal Sub-Commission presented its report to the Mediation Commission on 14 June 1975, suggesting "that the Parties should accept the following . . . ". Paragraph A refers to [*41] the implementation of the principle of the intangibility of colonial frontiers, and to the use for that purpose of texts and maps. In paragraph B, the Sub-Commission presents specific proposals for the frontier line. On 17 and 18 June 1975, the Mediation Commission met at Lome. With the participation of the Presidents of Upper Volta and Mali, the Commission adopted a final communique stating that:

"Upper Volta and Mali undertake to bring their dispute to an end on the basis of the recommendations of the Mediation Commission.

The two Parties agree to the establishment by the Chairman of the Mediation Commission of a neutral technical committee . . . the task of this committee being to determine the location of the villages of Dionouga, Diolouna, Oukoulou and Koubo, to reconnoitre the frontier and to make proposals for its materialization to the Commission."

On 10 July 1975, the heads of State of both Parties met again at Conakry, at the invitation of the President of the Republic of Guinea. In a joint declaration published on this occasion, the Parties

"welcome the efforts made and the results achieved by the Mediation Commission of the Organization of African Unity, and affirm [*42] their common intention to do their utmost to transcend [depasser] these results, especially by facilitating the delimitation of the frontier between the two States in order to place the final seal on their reconciliation".

The neutral technical committee which had been spoken of at the meeting of 17 and 18 June 1975 was in fact set up by the chairman of the Mediation Commission, but was unable to fulfil its function. To enable the committee to accomplish it, the proposal had been made that a systematic survey should be made of the frontier zone on the basis of aerial photographs, a task to be performed by the French Institut geographique national. Mali refused to grant the necessary authorizations for overflights of its territory, and despite further contacts between the Parties, this was how matters remained until the conclusion of the Special Agreement by which the case was brought before the Court.

38. The two Parties agree, in the first place, that the Mediation Commission of the Organization of African Unity was not a jurisdictional body, and lacked the power to take legally binding decisions ; in the second place, that the Commission never actually completed its work, [*43] since it took no steps formally to take note of the reports of its subcommissions, and submitted no definitive overall solution for consideration by the Parties in the context of its mediating functions. However, Burkina Faso argues that there was acquiescence by Mali in the solutions outlined in this context, on two distinct grounds. On the basis of the facts described above it argues, firstly, that the final communique of the Lome summit conference of 27 December 1974, setting up the Mediation Commission, has to be treated as a genuine international agreement binding upon the States parties. Further, while admitting that the Mediation Commission was not empowered to render binding decisions, Burkina Faso alleges that the report of the Legal Sub-Commission, endorsed by the summit meeting of Heads of State or Government held at Lome on 17 and 18 June 1975, became binding for Mali because Mali had proclaimed itself already bound by the report which might have been made by the Mediation Commission, by virtue of the declaration made by the President of Mali on 11 April 1975. The effect of the Lome final communique of 18 June 1975, which according to Burkina Faso emanated from the enlarged [*44] Mediation Commission and is also an international agreement which the Parties are bound to observe, was to reinforce Mali's obligations in the matter. Mali challenges this interpretation of the statement of its President of 11 April 1975; it observes, in the first place, that the Commission would have to have had a power of decision, which was not legally the case, and in the second place, that the comment by Mali's head of State was merely "a witticism of the kind regularly uttered at press conferences", which implied "no more than that Mali is anxious to consider the Commission's recommendations with goodwill and in good faith". Mali also challenges Burkina Faso's interpretation of the final communique of 18 June 1975. In Mali's view, the Mediation Commission did not, strictly speaking, make any recommendation, and the heads of State did not accept any predetermined line ; on the contrary, in entrusting a neutral technical committee with the task of determining the position of certain villages, reconnoitring the frontier, and making proposals to the Commission for its materialization, they instructed that committee to produce new proposals, and this, in Mali's opinion, surely indicates [*45] that the proposals of the subcommissions were not final ones.

39. The statement of Mali's Head of State on 11 April 1975 was not made during negotiations or talks between the two Parties ; at most, it took the form of a unilateral act by the Government of Mali. Such declarations "concerning legal or factual situations" may indeed "have the effect of creating legal obligations" for the State on whose behalf they are made, as the Court observed in the Nuclear Tests cases (I.C.J. Reports 1974, pp. 267, 472). But the Court also made clear in those cases that it is only "when it is the intention of the State making the declaration that it should become bound according to its terms" that "that intention confers on the declaration the character of a legal undertaking" (ibid.). Thus it all depends on the intention of the State in question, and the Court emphasized that it is for the Court to "form its own view of the meaning and scope intended by the author of a unilateral declaration which may create a legal obligation" (ibid, pp. 269, 474). In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [*46] the Court examined a communication transmitted by the Junta of National Reconstruction of Nicaragua to the Organization of American States, in which the Junta listed its objectives; but the Court was unable to find anything in that communication "from which it can be inferred that any legal undertaking was intended to exist" (I.C.J. Reports 1986, p. 132, para. 261). The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had "conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests" (I.C.J. Reports 1974, p. 269, para. 51 ; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not [*47] express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method : a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case.

41. The second argument advanced by Burkina Faso to establish acquiescence by Mali concerns the principles of delimitation approved by the Legal Sub-Commission of the Organization of African Unity Mediation Commission. In its report, the Sub-Commission did not refer solely to the principle of the intangibility of colonial frontiers ; it also defined, for [*48] the purpose of applying it, the appropriate method of appraising the respective weight of the evidence produced -- specifically, the texts on the one hand and the maps on the other --, and of contrasting or reconciling these where necessary. Burkina Faso considers that the principles adopted by the Sub-Commission in this matter were the same as those which it contends should be applied to the delimitation of the whole of its frontier with Mali. It also claims that Mali agreed to these principles being taken into consideration for the purpose of delimiting the greater part of the common frontier. It concludes therefore that Mali may not reject their application to the determination of the frontier in the disputed area, in view of the principle that a State cannot disclaim in a particular instance rules and principles to which it has acquiesced in comparable circumstances, when their operation becomes disadvantageous to itself. This latter principle, according to Burkina Faso, must be combined with that of the unity of the frontier line. It thus argues that the delimitation of the frontier in the disputed area has to be approached as a whole; it takes the view that unless there are compelling [*49] reasons to the contrary, the principles of delimitation and the evidence already recognized by the Parties as relevant for the purpose of drawing their common frontier over approximately 1,000 kilometres, do not cease to be relevant in delimiting the remaining 300 kilometres. Mali however states that it could not accept the report of the Legal Sub-Commission, on its merits, as an instrument potentially offering a reasonable solution, even on a compromise basis, and claims that it never did accept it. Referring to the principles imputed by Burkina Faso to the Sub-Commission, Mali rejects the position of the other Party particularly on the questions of the importance of the maps' and conduct evincing effectivity.

42. It must be recalled in this connection that the Chamber, whose judgment "shall be considered as rendered by the Court" (Statute, Art. 27), is bound to settle the present dispute "in accordance with international law" (Art. 38). Accordingly, it is on the basis of international law that the Chamber will have to fix the frontier line, weighing for that purpose the legal force of the respective evidence submitted by the Parties for its appraisal. It is therefore of little significance [*50] whether Mali adopted a particular approach, either in the course of negotiations on frontier questions, or with respect to the conclusions of the Legal Sub-Commission of the Organization of African Unity Mediation Commission, and whether that approach may or may not be construed to reflect a specific position, or indeed to signify acquiescence, towards the principles and rules, including those which determine the respective weight of the various kinds of evidence applicable to the dispute. If these principles and rules are applicable as elements of law in the present case, they remain so whatever Mali's attitude. If the reverse is true, the Chamber could only take account of them if the two Parties had requested it to do so, or had given such principles and rules a special place in the Special Agreement, as "rules expressly recognized by the contesting States" (Art. 38, para. 1 (a), of the Statute).

"While the Court is . . . bound to have regard to all the legal sources specified in Article 38, paragraph 1, of the Statute . . . it is also bound, in accordance with paragraph 1 (a), of that Article, to apply the provisions of the Special Agreement." (I.C.J. Reports 1982, [*51] p. 37, para. 23.)

43. The reason why the argument from the notion of acquiescence, as set out above, has been dealt with by the Chamber at an initial stage of its Judgment is that it is in the nature of a preliminary question. If the Chamber had upheld the contention that the report of the Legal Sub-Commission of the Mediation Commission had become binding, it would only have had to endorse it. Both the Parties have however resorted in other connections to arguments bearing upon acquiescence, estoppel or the conduct of the Parties. Mali has referred to "the inconsistency shown by Upper Volta and thereafter by Burkina Faso" towards a regulation (Order 2728 AP of 27 November 1935) on which, as will be seen later, Mali rests its claims in regard to the western part of the disputed area. For its part, Burkina Faso argues in connection with a projected definition of the boundary between the colonies of French Sudan and Niger in 1935, said to have been accepted by the Governor of Sudan as a description of the existing boundary, that "what was accepted by French Sudan is therefore binding upon Mali by virtue of State succession". However, the Chamber considers that these questions should [*52] be reserved and examined, if necessary, when the Chamber turns to its examination of the texts in question.

44. Before turning to the various kinds of evidence invoked by the Parties to support their claims in regard to the line of the frontier, the Chamber must dispose of a further preliminary question, namely : what are its powers in the matter of fixing the tripoint which forms the end-point of the frontier between the Parties. In its Memorial, Mali observes that the tripoint Niger/Mali/Burkina Faso cannot be determined by the two Parties without Niger's agreement, nor can it be determined by the Chamber, which may not affect the rights of a third State not a party to the proceedings. According to Mali, the eastern extremity of the frontier in the disputed area must be determined in such a way as not to infringe these rights, and this could only be done if the delimitation were to terminate at a given point which is not the end-point. Burkina Faso, on the other hand, considers that the Chamber must perform the whole of the task entrusted to it by the Special Agreement, and must for that purpose decide the position of the tripoint. In its view, if the Chamber discharges its task [*53] in this manner, it would not infringe the rights of Niger, since the sole object of its decision would be to determine the line of the frontier between the Parties. Burkina Faso believes that although the meeting-point between that frontier and the frontier of Niger is a tripoint, the determination of that point will be a consequence and not the object of the Chamber's judgment. Mali rejects the argument that the Special Agreement requires the Chamber to determine the tripoint, pointing out that the text refers to a "disputed area" consisting of "a band of territory extending from the sector Koro (Mali) Djibo (Upper Volta) up to and including the region of the Beli". According to Mali, the text is silent as to the actual point where the Chamber's line is to begin or end; and the Chamber cannot determine the tripoint without simultaneously deciding the question of Niger's rights in its relation to each of the Parties. Burkina Faso replies by, inter alia, drawing the Chamber's attention to the preamble to the Special Agreement, according to which the Parties are seeking "the definitive delimitation and demarcation of their common frontier". While holding to its formal submission, [*54] which mentions the "tripoint", Burkina Faso nevertheless concedes that it might be preferable for the judgment to refer to "the eastern extremity of the common frontier" between the Parties, rather than to the tripoint.

45. In the Chamber's opinion, it should first be recalled that there is a distinction between the question of the jurisdiction conferred upon it by the Special Agreement concluded between the Parties, and the question whether "the adjudication sought by the Applicant is one which the Court's judicial function permits it to give", a question considered by the Court in the case concerning the Northern Cameroons, among others (I.C.J. Reports 1963, p. 31). As it also stated in that case, "even if the Court, when seised, finds that it has jurisdiction, the Court is not compelled in every case to exercise that jurisdiction" (ibid, p. 29). But in the absence of "considerations which would lead it to decline to give judgment" (I.C.J. Reports 1974, p. 271, para. 58), the Court is bound to fulfil the functions assigned to it by its Statute. Moreover, the Court has recently confirmed the principle that it "must not exceed the jurisdiction conferred upon it by [*55] the Parties, but it must also exercise that jurisdiction to its full extent" (Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, p. 23). In the present case, the Chamber finds it to be clear from the wording of the Special Agreement -- including its preamble -- that the common intention of the Parties was that the Chamber should indicate the frontier line between their respective territories throughout the whole of the "disputed area", and that this area was for them the whole of the frontier not yet delimited by joint agreement.

46. The Chamber also considers that its jurisdiction is not restricted simply because the end-point of the frontier lies on the frontier of a third State not a party to the proceedings. The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59 of the Statute of the Court, which provides that "The decision of the Court has no binding force except between the parties and in respect of that particular case". The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, [*56] although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision, which "is simply an alternative to the direct and friendly settlement" of the dispute between the Parties (P.C.I.J., Series A, No. 22, p. 13), merely substitutes for the solution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it, either directly or as a consequence of having accepted the court's jurisdiction to decide the case. Accordingly, on the supposition that the Chamber's judgment specifies a point which it finds to be the easternmost point of the frontier, there would be nothing to prevent Niger from claiming rights, vis-a-vis either of the Parties, to territories lying west of the point identified by the Chamber.

47. Admittedly, in the case of the Continental Shelf (Libyan Arab Jama-hiriya/Malta), the Court confined its decision to a certain geographical area because, as it explained,

"the Court has not been endowed with jurisdiction to determine [*57] what principles and rules govern delimitations with third States, or whether the claims of the Parties outside that area prevail over the claims of those third States in the region" (I.C.J. Reports 1985, p. 26, para. 21).

But the process by which a court determines the line of a land boundary between two States can be clearly distinguished from the process by which it identifies the principles and rules applicable to the delimitation of the continental shelf. The legal considerations which have to be taken into account in determining the location of the land boundary between parties are in no way dependent on the position of the boundary between the territory of either of those parties and the territory of a third State, even where, as in the present case, the rights in question for all three States derive from one and the same predecessor State. On the other hand, in continental shelf delimitations, an agreement between the parties which is perfectly valid and binding on the treaty level may, when the relations between the parties and a third State are taken into consideration, prove to be contrary to the rules of international law governing the continental shelf (see North [*58] Sea Continental Shelf, I.C.J. Reports 1969, p. 20, para. 14; pp. 27-28, paras. 35-36). It follows that a court dealing with a request for the delimitation of a continental shelf must decline, even if so authorized by the disputant parties, to rule upon rights relating to areas in which third States have such claims as may contradict the legal considerations -- especially in regard to equitable principles -- which would have formed the basis of its decision.

48. At most, the Chamber should consider whether, in this case, considerations related to the need to safeguard the interests of the third State concerned require it to refrain from exercising its jurisdiction to determine the whole course of the line. In this regard, the Chamber is not unmindful of the fact that Niger and Burkina Faso agreed by the Niamey Protocol of 23 June 1964, to "treat as basic documents for the determination of the frontier" between them a general Order issued by the Governor-General of French West Africa on 31 August 1927, an erratum to that Order dated 5 October 1927 and a 1:200,000 scale map of the Institut geographique national from the year 1960, these being the same documents as those invoked by [*59] Burkina Faso in support of its contention regarding the location of the end-point of the frontier with Mali. Pointing to this fact, Burkina Faso infers that if this point were fixed according to the information contained in these documents, there would be no infringement of Niger's rights. The Chamber cannot share this view. From the mere fact that the same documents are used as the starting-point for the Chamber's reasoning and for the negotiations between Burkina Faso and Niger, it cannot be inferred that the practical conclusions reached in both operations, regarding the location of the end-point of the frontier between Burkina Faso and Mali, would necessarily be the same. It is clear that the interpretation given by the Chamber, for the purposes of this case, of the 1927 Order and its erratum will not be opposable to Niger, which has not participated in the proceedings and consequently has been unable to state its views. Mali further claims, for reasons to be examined later, that the Order of 1927 was invalidated by a factual error and is therefore inapplicable. This argument, the correctness or otherwise of which has to be decided by the Chamber, does not at first sight appear [*60] to have been put forward in the context of the Niamey Protocol; but this is again a matter outside the jurisdiction of the Chamber, which has not been called upon by the parties to that Protocol to interpret it.

49. The fact is, as the Parties seem to have realized towards the end of the proceedings, that the question has been wrongly defined. The Chamber is in fact required, not to fix a tripoint, which would necessitate the consent of all the States concerned, but to ascertain, in the light of the evidence which the Parties have made available to it, how far the frontier which they inherited from the colonial power extends. Certainly such a finding implies, as a logical corollary, both that the territory of a third State lies beyond the end-point, and that the Parties have exclusive sovereign rights up to that point. However, this is no more than a twofold presumption which underlies any boundary situation. This presumption remains in principle irrebuttable in the judicial context of a given case, in the sense that neither of the disputant parties, having contended that it possesses a common frontier with the other as far as a specific point, can change its position to rely on the [*61] alleged existence of sovereignty pertaining to a third State; but this presumption does not thereby create a ground of opposability outside that context and against the third State. Indeed, this is the whole point of the above-quoted Article 59 of the Statute. It is true that in a given case it may be clear from the record that the legal interests of a third State "would not only be affected by a decision, but would form the very subject-matter of the decision" (Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32) so that the Court has to use its power "to refuse to exercise its jurisdiction" (I.C.J. Reports 1984, p. 431, para. 88). However, this is not the case here.

50. The Chamber therefore concludes that it has a duty to decide the whole of the petitum entrusted to it; that is, to indicate the line of the frontier between the Parties over the entire length of the disputed area. In so doing, it will define the location of the end-point of the frontier in the east, the point where this frontier ceases to divide the territories of Burkina Faso and Mali ; but, as explained above, this will not amount to a decision by the Chamber that this is a tripoint [*62] which affects Niger. In accordance with Article 59 of the Statute, this Judgment will also not be opposable to Niger as regards the course of that country's frontiers.

51. Among the evidence cited by the Parties in the present case, the basic document is the French law 47-1707 of 4 September 1947 "for the re-establishment of the territory of Upper Volta". The decision to abolish the colony of Upper Volta had been made in the form of a decree. The reason why a law was necessary to reverse that decision was because, under Article 86 of the Constitution of the French Republic of 1946, only the French Parliament could then determine the extent, and accordingly the boundaries, of a territoire d'outre-mer. As noted above, the 1947 law provided (Art. 2) that the boundaries of the territory were to be "those of the former colony of Upper Volta on 5 September 1932" ; Article 3 also provided that "the territorial boundaries defined in Article 2 may be modified following consultation with the local assemblies concerned". As far as the disputed area is concerned, no modifications were made under this provision, so that the boundaries of Upper Volta in that area at the time of its accession [*63] to independence in 1960 remained those which had existed on 5 September 1932. However, neither the legislative and regulative texts, nor the relevant administrative documents, contain any complete description of the course of the boundary between French Sudan and Upper Volta during the two periods when these colonies co-existed, i.e., between 1919 and 1932, and between 1947 and 1960. The principal texts of this kind which the Parties have produced to the Chamber are limited in scope, and the legal significance or the interpretation of most of these are matters of dispute between the Parties.

52. Apart from the above-mentioned law of 4 September 1947, the most important documents in question are the following (in chronological order):