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Frontier Dispute (Burkina Faso/Niger) (I.C.J.)

Published online by Cambridge University Press:  20 January 2017

Theodore Kill
Theodore Kill*
Affiliation:
Office of the Legal Adviser, U.S. Department of State
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Extract

The International Court of Justice delivered its judgment on April 16, 2013, in Frontier Dispute (Burkina Faso/Niger), a case submitted by special agreement or compromis and jointly notified to the Court on July 20, 2010. The judgment was unanimous on all holdings in the operative part or dispositif, but nevertheless included a declaration by Judge Bennouna and separate opinions by Judges Cancado Trindade and Yusuf as well as Judges ad hoc Mahiou and Daudet. The judgment set forth the parameters within which the border between Burkina Faso and Niger will be demarcated and, as such, should contribute to peace and stability in the region. This case is also notable for what was not decided; despite a clause in the compromis requesting the Court to “place on record” the parties’ agreement regarding the border in two sectors, the Court declined to include the agreement in the judgment’s dispositif, finding for the first time that a matter submitted to it did not constitute a dispute.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1215 - 1256
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the International Court of Justice Web site (visited November 11, 2013), http://www.icj-cij.org/docket/files/149/17306.pdf.

1 Upper Volta became known as Burkina Faso on August 4, 1984. Frontier Dispute (Burk. Faso/Niger), Judgment, ¶ 22 (Apr. 16, 2013), http://www.icj-cij.org/docket/files/149/17306.pdf [hereinafter Burkina Faso/Niger].

2 The term Arrêté is used to refer to the Arrêté as clarified by the Erratum of October 5, 1927. Id. ¶ 66.

3 The Institut géographique national de France (IGN) map was also referenced in the Case Concerning the Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554 (Dec. 22).

4 Burkina Faso/Niger, supra note 1, ¶ 48.

5 Id. ¶ 49.

6 Although the Parties disagreed on the location of the Tao Astronomic Marker, according to the Court, the question of where precisely the Tao astronomic marker is located was a question for “demarcation” which fell outside the Court’s function under the compromis to “determine the course” of the border. Id. ¶ 72.

7 Id. ¶ 85.

8 Id. ¶ 98.

9 Id. ¶ 101.

10 Id. ¶ 108.

11 Id. ¶ 113. The Court made its nomination of experts on July 12, 2013.

12 Christian Tomuschat, Article 36 UN Charter, in The Statute of the International Court of Justice: A Commentary 633, 642 (Zimmerman et al. eds., 2d ed. 2012).

13 See Perm. Ct. Arb., The Republic of Ecuador v. The United States of America , http://www.pca-cpa.org/showpage.asp? pag_id=1455 (last visited Nov. 13, 2013); US-Ecuador Investment Treaty Award Released to Parties; Tribunal Members Part Ways on Key Issues, Inv. Arb. Rptr., Oct. 30, 2012, http://www.iareporter.com/articles/20121030_1 (subscription required; on file with author). The tribunal also held that the case was not suitable for adjudication because Ecuador had failed to demonstrate that the award would have any “practical consequences” in the legal relations between the two Parties. See id.

14 Ecuador v. United States, PCA Case No. 2012-5, Counter- Memorial of Claimant Republic of Ecuador on Jurisdiction, ¶¶ 73-101 (May 23, 2012), http://www.pca-cpa.org/showpage.asp?pag_id=1455.

15 US-Ecuador Investment Treaty Award Released to Parties; Tribunal Members Part Ways on Key Issues, supra note 13.

16 Burkina Faso/Niger, supra note 1, ¶ 102.

17 Id. ¶ 112.

18 Frontier Dispute (Burk. Faso/Niger), Judgment, ¶ 103 (Apr. 16, 2013) (separate opinion of Judge Canc¸ado Trindade), http://www.icj-cij.org/docket/files/149/17310.pdf.

19 Frontier Dispute (Burk. Faso/Niger), Judgment, at 2 (Apr. 16, 2013) (declaration of Judge Bennouna), http://www.icj-cij.org/docket/files/149/17308.pdf.

20 See supra note 18, ¶ 102. Judge Yusuf’s extended discussion of the principle of uti possidetis in the African context suggests that this particular ghost may haunt the continent for some time to come. Frontier Dispute (Burk. Faso/Niger), Judgment, ¶ 33 (Apr. 16, 2013) (separate opinion of Judge Yusuf), http://www.icjcij. org/docket/files/149/17312.pdf.

1 The co-ordinates which follow are those adopted in the record of the work of the Joint Survey Mission of the erected markers, 3 July 2009, Ann. MBF 101. The co-ordinates were measured by GPS.

2 The co-ordinates of this point were measured by GPS by Burkina. The co-ordinates of this marker on the Clarke 1880 ellipsoid are: Lat. 14° 03' 13" N; Long. 00° 22' 53" E.

3 The co-ordinates of this point, and the following ones, are given on the Clarke 1880 ellipsoid.

4 The co-ordinates of this point, and the following ones, are those adopted in the record of the work of the Joint Survey Mission of the erected markers, 3 July 2009, Ann. MBF 101. The co-ordinates were measured by GPS (WGS84 ellipsoid).

5 The co-ordinates of the following points are those adopted in the record of the meeting to ascertain the co-ordinates of the unmarked points in Sector B, 15 October 2009, Ann. MBF 105. They were derived from the IGN France 1:200,000- scale map (Clarke 1880).

6 Also referred to by the Parties as Tillabéri.

7 The IGN map was drawn up on the basis of the Clarke 1880 ellipsoid, which was then in common usage. The Court, for its part, is using the 1984 World Geodetic System datum (WGS 84) for the purposes of the present Judgment. Hence, the co-ordinates provided by the Court for various points of the frontier line have been established on the basis of the WGS 84 datum, even where those points are determined by reference to the IGN map. Given the scale of the IGN map, the said co-ordinates may be subject to a certain margin of error. In any event, the indications given in wording in the Judgment shall prevail.

8 Also referred to by the Parties as Ihouchaltane, Ouchaltan, Ousalta, Ousaltan and Oulsalta.